Edappara Kunhammed, Nabeesa and Favas v. Kallatt Kadeesa, Noushida, and Addl P2, Addl P3 and Addl R2 (Legal Heirs of Deceased Revision Petitioner No.1)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944** **R.C.REV.NO. 24 OF 2019** **AGAINST THE JUDGMENT DATED 19.08.2018 IN R.C.A.NO.224 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (III ADDITIONAL DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 25.09.2017 IN R.C.P.NO.1 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF),** ## **PERAMBRA** ## **REVISION PETITIONERS:** ## **1 EDAPPARA KUNHAMMED** **AGED 57 YEARS, SON OF THARUVEYIKUTTY, EDAPPARA TRADERS, PERAMPRA POST, PERAMBRA, MENHANYAM AMSOM, DESOM, KOYILANDY THALUK, KOZHIKODE DISTRICT. [DIED]** ## **2* NABEESA,** **AGED 57 YEARS, WIFE OF LATE EDAPPARA KUNHAMMAED OF M/S EDAPPARA TRADERS, PERAMPRA POST, PERAMBRA, MEHANYAM AMSOM, DESOM, KOYILANY THALUK, KOZHIKODE DISTRICT- 673 525.** ## **3* FAVAS,** **AGED 28 YEARS, SON OF LATE EDAPPARA KUNHAMMAED OF M/S EDAPPARA TRADERS, PERAMPRA POST, PERAMBRA, MEHANYAM AMSOM, DESOM, KOYILANY THALUK, KOZHIKODE DISTRICT- 673 525.** **BY ADVS.** ## **SATHEESHAN ALAKKADAN** ## **P.K.SUBHASH** 2 R.C.Rev.No.24 of 2019 ## **RESPONDENTS:** - **1 KALLATT KADEESA** **AGED 47 YEARS, WIFE OF KUNHIMOIDEEN HAJEE, HOME MAKER, NADUKANDIYIL HOUSE, ERAVATTOOR VILLAGE, KIZHINJANYAM DESOM, POST PERAMPRA, PERAMBRA, KOYILANDY THALUK, KOZHIKODE DISTRICT.** - **2* NOUSHIDA,** **AGED 30 YEARS, DAUGHTER OF LATE EDAPPARA KUNHAMMED OF M/S EDAPPARA TRADERS, PERAMPRA POST, PERAMBRA, MENHANYAM AMSOM, DESOM, KOYILANDY THALUK, KOZHIKODE DISTRICT- 673 525.** ***ADDL P2, P3 AND ADDITIONAL R2 BEING LEGAL HEIRS OF DECREASED REVISION PETITIONER NO. 1 ARE IMPLEADED AS PER ORDER DATED 26-05-2022 IN IA NO. 1/2022 IN RCR 24/2019.** **BY ADVS.** **SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.24 of 2019 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.1 of 2007 on the file of the Rent Control Court (Munsiff), Perambra, is the revision petitioner. He challenges the judgment of the Appellate Authority (III Additional District Judge), Kozhikode in R.C.A.No.224 of 2017, whereby the order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, has been confirmed. 2. This revision was admitted to file on 16.01.2019. Execution of the order of eviction was stayed for one month initially. The order of stay was extended from time to time and is still in force. 3. On 01.03.2021, this revision petition was dismissed for non-prosecution. As per the order dated 26.05.2022 in M.J.C.No.36 of 2022, the revision was restored on file. 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the 4 R.C.Rev.No.24 of 2019 respondent. 5. The respondent filed R.C.P.No.1 of 2007 seeking eviction of the petitioner under Section 11(3) of the Act. On 04.11.2007, the Rent Control Court after considering the evidence came on record, dismissed the R.C.P. An appeal under Section 18(1)(b) of the Act was filed by the respondent challenging the said order. That appeal, R.C.A.No.8 of 2008, was dismissed by the Appellate Authority. R.C.Rev.No.241 of 2011 was filed by the respondent before this court. But the judgment dismissing the appeal was not interfered with. The respondent preferred Special Leave Petitions, which was granted by the Apex Court. In the ensued Civil appeal Nos.2665 and 2666 of 2017, the Apex court held that the need urged by the respondent was bona fide and the first proviso to Section 11(3) of the Act has no application. The first limb of the second proviso to Section 11(3) of the Act was found in favour of the petitioner. The matter was, however, remanded to the Rent Control Court with specific direction to take a fresh decision with respect to the second 5 R.C.Rev.No.24 of 2019 limb of the second proviso to Section 11(3) of the Act, after giving an opportunity to both sides to adduce fresh evidence. 6. The matter was, therefore, considered by the Rent Control Court again. Fresh evidence was recorded. The evidence now consists of the oral testimonies of PW1, RWs.1 to 4 and CW1. Documents are Exts.A1 to A8, B1 to B3(b) and C1 to C(f). The Rent Control Court after considering the said evidence in detail, concluded that the petitioner failed to establish the requirements of the second limb of the second proviso to Section 11(3) of the Act. Resultantly, eviction was ordered. The petitioner preferred an appeal challenging the said order. In the appeal, R.C.A.No.224 of 2017, the Appellate Authority (Additional District Judge-III) Kozhikode, considered every item of evidence adduced by the parties with respect to the non-availability of alternative building in the locality. The Appellate Authority concurred with the finding of the Rent Control Court and declined to interfere with the order of eviction. 6 R.C.Rev.No.24 of 2019 7. The learned counsel appearing for the petitioner would contend that the authorities below did not consider the evidence tendered by the petitioner in its proper perspective. The petitioner is conducting a hardware shop. Although a few rooms at distant parts of the town were pointed out by the respondent, none of them was suitable to accommodate a hardware business, but the courts below did not consider that aspect. Availability of a suitable building in the locality alone impede a tenant from claiming the benefit of the second proviso to Section 11(3) of the Act. Although no vacant room in the locality where the petition schedule shop rooms are situated is pointed out, the courts below did not consider that pertinent aspect. Thus, the learned counsel for the petitioner would contend that the eviction ordered by the courts below is liable to be reversed. 8. The learned counsel appearing for the respondent, on the other hand, pointed out that CW1 located vacant rooms in more than five buildings in the nearby area, but the petitioner did not substantiate that such rooms are 7 R.C.Rev.No.24 of 2019 unavailable. Even the witnesses examined by the petitioner, namely, RWs.3 and 4 themselves deposed about availability of rooms on rent. It is for the petitioner to find out a room that is suitable for this purpose and without doing so, he is now contends that no alternative room suitable to his purpose is available. 9. Out of the buildings, where unoccupied rooms are available as pointed out by CW1 in her report, Ext.C1, details of five buildings have been considered in detail by the courts below. From the evidence of RW3, it was shown that the rooms are vacant in building No.3 marked in Ext.C2, plan. RW4 deposed about his building, which is marked as building No.2, and from his evidence it has come out that at least two rooms are vacant in that building. In the shopping complex of the Panchayat also, rooms are available. Of course, only on taking part in the auction and by bid, the petitioner could avail a room in that shopping complex. It is for the petitioner to take steps to avail any of such rooms. Building Nos.6 and 7 pointed out by CW1 also have vacant rooms. RW1, the 8 R.C.Rev.No.24 of 2019 petitioner stated that he did not enquire about availability or not of rooms in the said buildings. In short, the availability of vacant rooms in different parts of the city is well established. Some of such rooms are within a short distance from the petition schedule shop room. A tenant cannot insist that the alternative building should be within the vicinity of the tenanted premises. What the second proviso insists on is the availability of other suitable buildings in ‘the locality’. 10. In **Thankappan Pillai v. Sukumari Amma [1986 KLT 109]** the word 'locality' used in the second proviso to Section 11(3) has been interpreted. It was held, “7. As per the first proviso to Section 11(3) the landlord will not be entitled to claim recovery under Section 11(3) if he has another building of his own in his possession in the same city, town or village except on satisfying the court about the existence of special reasons. A different phraseology is used by the Legislature in the second proviso. The words used therein are "there is no other suitable building available in the locality for such person to carry on such trade or business". So ''locality" in the second proviso must be given a meaning other than city, town or village. Locality 9 R.C.Rev.No.24 of 2019 must mean a lesser extent than an area. In common parlance locality can mean a ward in a local body like Municipality or Panchayat or even a street. As per the Concise Oxford Dictionary 5[th] Edition "locality" means "thing's position, place where it is, site or scene of something". If this literal meaning is to be adopted then "building available in the locality" can only mean building in the very site where the present building is situated. This could not have been the intention of the Legislature while enacting the second proviso to Section 11(3), Law Lexicon 3[rd] edition by Justice T.P. Mukherjee gives the meaning of locality as ''locality is a place with an area which is reasonably small and compact so that it has come to exist and be treated as one unit, a reference to which sufficiently identifies the area and the persons therein. Ordinarily, the unit has acquired a name by which it is referred and understood". Basing on decided cases it is further observed in the Law Lexicon as follows:- "The result is that ordinarily naming the village would amount to specifying the locality unless it is known in a particular case that the village specified is much too large to be treated as locality, there being smaller units within that village and having a name, which can be more appropriately called a locality. This would, therefore, be a question of fact in each case and where a village is specified in the notification under Section 10 R.C.Rev.No.24 of 2019 4(1) of the said Act it would be presumed to be valid unless the person challenging its validity shows that in fact the village named does not amount to specifying the locality on the fact and in the circumstances of that case. From this it seems that the word 'locality' must be understood as a compact area smaller than city, town or village but larger than the vicinity of the building sought to be recovered.” 11. Viewed in the light of the aforesaid principle of law, the rooms pointed out as available cannot be said to be not in the same locality, where the petition schedule shop rooms are situated. Evidence is overwhelming that there are suitable buildings/rooms available in the locality for the petitioner to avail on rent. In the circumstances, we are of the view that the petitioner is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. The findings of the courts below in this regard are not liable to be interfered with by this Court, invoking the jurisdiction under Section 20 of the Act. ## 12. In **Rukmini Amma Saradamma v. Kallyani** **Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala 11 R.C.Rev.No.24 of 2019 Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it - cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 13. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench 12 ## R.C.Rev.No.24 of 2019 of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 14. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could 13 R.C.Rev.No.24 of 2019 not be said to be perverse in any way, the High Court could - not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 15. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 16. The learned counsel for the petitioner has made a request to afford six months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting the business. The learned counsel for the respondent is agreeable to grant a reasonable time by this Court. 17. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: 14 R.C.Rev.No.24 of 2019 - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically 15 R.C.Rev.No.24 of 2019 and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr