Dennis Antony v. Sumathy, Amalraj and Vimalraj

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939 RP.No. 136 of 2018 IN RCR. 271/2017 ------------------------------------RCRev. 271/2017 of HIGH COURT OF KERALA ## REVIEW PETITIONER/REVISION PETITIONER/APPELLANT/RESPONDENT DENNIS ANTONY S/O.ANTONY, AGED 54 YEARS, RESIDING AT CHITTEZHATHU HOUSE, KATHRIKKADAVU, ERNAKULAM. BY ADVS.SRI.S.SUDHISH KUMAR SRI.K.B.DAYAL SRI.SIBI KARUN ## RESPONDENTS/RESPONDENTS/RESPONDENTS/PETITIONER ## 1. SUMATHY AGED ABOUT 57 YEARS, W/O.LATE T.RADHAKRISHNAN, RESIDING AT HOUSE NO.40/7966-C, MARKET ROAD, CONVENT JUNCTION, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DT, PIN-682011. ## 2. AMALRAJ AGED ABOUT 32 YEARS, S/O.LATE T.RADHAKRISHNAN, RESIDING AT HOUSE NO.40/7966-C, MARKET ROAD, CONVENT JUNCTION, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DT., PIN-682011. ## 3. VIMALRAJ AGED ABOUT 28 YEARS, S/O.LATE T.RADHAKRISHNAN, RESIDING AT HOUSE NO.40/7966-C, MARKET ROAD, CONVENT JUNCTION, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DT., PIN-682011. BY SRI.R.O.MUHAMED SHEMEEM THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ.** - - - - - - - - - - - - - - - - - - - - R.P.136 of 2018 in R.C.R. 271 of 2017 - - - - - - - - - - - - - - - - Dated : 22[nd] February, 2018 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** Harilal, J - 1.The review petitioner is the revision petitioner as well as the tenant of the building. The respondents in the review petition are the respondents/landlords in the RCR. - 2.Originally the rent control petition was filed by the landlords under Section 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act. The eviction was allowed under Section 11(3) of the Act and disallowed the claim under Section 11(4) (ii) of the Act. Though he had preferred an appeal, the appellate authority also confirmed the order of eviction passed by the rent control court under Section 11(3) and dismissed the appeal. Aggrieved by the concurrent findings of the courts below, granting order of eviction under Section 11(3) of **RP.136/2018** 2 the Act, the revision petition is preferred before this Court and after considering the legality and propriety of the impugned order passed concurrently by the courts below, this Court also confirmed the order of eviction passed by the courts below under Section 11(3) of the Act and dismissed the revision petition. - 3.This review petition is filed on the ground that this court has erred in arriving at a finding in favour of the landlord under the 1[st] proviso to Section 11(3) of the Act, without considering the lack of explanation from the part of the landlords for not occupying the room, which was found in possession of the landlords, by the commissioner. It is also contended that this court has erred in dismissing the RCR without taking note of the decision of this court in Ramla v. Ozheeparambil Chandran [2016 (4) KHC SN 1 664]. - 4.Heard the learned counsel for the review petitioner and the learned counsel for the respondents. **RP.136/2018** 3 - 5.The review is by no means an appeal in disguise and it is strictly confined to the scope and ambit of the grounds under Order XLVII Rule 1 of CPC. In Meera Bhanja v. Nirmala Kumari Choudhury ((1995) 1 SCC 17) , the Supreme court held that where a review petition has been filed on the ground of the error apparent on the face of the record, the error must be such an error which must strike one on a mere looking and would not require any long drawn process and reasoning of points where there may conceivably be two opinions. Bearing the above proposition, we have considered the scope of review in this review petition. - 6.The learned counsel for the respondents opposed the application contending that the review petitioner has already filed an affidavit before the executing court undertaking that he is ready to surrender the shop room within a period of eight months from the date of the order, which is sought to be reviewed. After submitting himself to the direction of this court in the impugned order and **RP.136/2018** 4 availing benefit under it, the review petitioner filed this review petition alleging error apparent on the face of the impugned order. The learned counsel for the review petitioner also admitted that the review petitioner has already filed an affidavit with an undertaking that he will surrender the shop room within eight months from 16.8.2017. 7.Going by the impugned order we find that originally this court has not granted time to vacate the tenanted premises. But, the counsel appearing for the petitioner sought for some time to vacate the tenanted premises and considering that submission, this court has granted eight months time to vacate the tenanted premises on a condition that he shall file an affidavit with an undertaking that the tenanted premises will be vacated within six months from 16.8.2017. If the review petitioner did not comply with the said condition, the consequence is that the respondents will proceed with the execution proceedings forthwith. In short, the condition was an optional **RP.136/2018** 5 one. But, the review petitioner who wants more time submitted an affidavit with an undertaking that he will surrender the vacant possession of the petition schedule shop room within eight months from 16.8.2017. Thus, he himself submitted to the direction of this court to get eight months to vacate the premises with an undertaking. Now he filed this review petition with a delay of 130 days, after availing the benefit of the said undertaking. It is needless to say that he enjoyed the benefit of the order passed by this court and he is continuing his occupation under the concession granted by this court. Thereafter, now he filed this review petition pointing out the error on the face of the order. We are of the view that after submitting himself to the direction of this court and enjoying the benefit of that undertaking by availing more time to surrender vacant possession of the tenanted premises, the petitioner cannot be allowed to challenge the order, under which he got the said benefit. In the above view, we prima facie find that the review petition itself is not maintainable. **RP.136/2018** 6 8.Coming to the ground raised in the review petition, it is a case of the review petitioner that there was no explanation from the part of the landlords for not occupying the alleged vacant shop room, which was found by the commissioner and reported in Ext.C1 report. But, this court without considering the absence of explanation from the landlords, confirmed the order passed by the courts below and affirmed its findings that the rent control petition is not hit by the 1[st] proviso to Section 11(3) of the Act, the learned counsel contends. 9.Going by the impugned order, which is sought to be reviewed in this review petition, we find that the review petitioner has raised the very same point before us and we have considered the findings of the courts below meticulously and arrived at a finding that the courts below had satisfactorily found that the room in the possession of the landlords, as reported by the commissioner in his report, is not suitable for conducting his **RP.136/2018** **==> picture [7 x 9] intentionally omitted <==** business. It is evident from the stand of the review petitioner himself that he is not ready to shift his business to that alleged vacant room, if it is given to him, as it is not suitable. There is no error apparent on the face of the record, in the impugned order. In short, this is an appeal in disguise only. 10.Secondly, it is contended that this Court has not considered the decision of this Court in Ramla's case (supra). The counsel for the review petitioner himself has admitted that the aforesaid decision was not cited before this Court, while disposing the revision petition. If the counsel for the review petitioner has not cited the aforesaid decision during the course of argument before this court, he cannot file a review petition, on the ground that this Court has not considered the aforesaid decision while disposing the revision petition. Had the revision petitioner cited the aforesaid decision, certainly the said decision would have been considered by this court. The non consideration of a decision, which was not cited ## **RP.136/2018** **==> picture [7 x 9] intentionally omitted <==** during the course of argument, is not an error apparent on the face of the record. Thus, we find that none of the grounds raised in this review petition would fall under Order XLVII Rule 1 of the Code of Civil Procedure and, consequently, the review petition will stand dismissed. Sd/- **K.HARILAL Judge** **Sd/-** ## **A.M.BABU Judge** Mrcs/22.2 /True copy/ Sd/- P.S.To Judge