Jalaludheen v Abdul Rasheed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** **RCREV. NO. 108 OF 2021** **AGAINST THE JUDGMENT DATED 08.03.2021 IN R.C.ANO.2 OF 2019 OF RENT OCNTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGEI), MAVELIKKARA FILED AGAISNT THE ORDER DATED 17.12.2018 IN R.C.P.NO.1 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), KAYAMKULAM.** ## **REVISION PETITIONER:** **JALALUDHEEN,** **AGED 53 YEARS, S/O. MOHAMMED HANEEFA, RAHATHU MANZIL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT, PIN-690- 502 BY ADV R.RAMADAS SRI T.KRISHNAN UNNI (SR) -FOR PETITIONER** ## **RESPONDENT:** **ABDUL RASHEED S/O. MOHAMMED KUNJU, ROSE MANZIL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER MOHAMMED SHAJI, AGED 61 YEARS, VALEAL VEEDU, KAYAMKULAM P.O., KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT, PIN-690 106 BY ADVS. P.SREEKUMAR C.R.SYAMKUMAR ASWIN KUMAR M J HELEN P.A. ARUN ROY SHAHIR SHOWKATH ALI** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.No.108 of 2021 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.1 of 2017 on the file of the Rent Control Court (Munsiff), Kayamkulam, a petition filed by the respondent hereinlandlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule shop rooms, on the ground of arrears of rent and bona fide need. In the Rent Control Petition, it is alleged that, the tenant has kept in arrears the monthly rent of Rs.15,000/from 04.12.2015 onwards. The bona fide need projected in the Rent Control Petition is that of the landlord to start a hardware and electrical shop in the petition schedule shop rooms. The tenant filed objection in the Rent Control Petition, denying arrears of rent and also the bona fide need projected under Section 11(3) of the Act. The tenant contended that the landlord is not entitled for an order of eviction under Sections 11(2)(b) or 11(3) of the Act. 2. Before the Rent Control Court, Exts.A1 to A7 were marked on the side of the landlord and PW1 to PW3 were R.C.Rev.No.108 of 2021 3 examined. On the side of the tenant, Exts.B1 to B3 were marked and DW1 and DW2 were examined. The report and mahazar prepared by the Advocate Commissioner was marked as Ext.C1. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the tenant has defaulted payment of rent during the period from December, 2015 to March, 2016 and therefore, it was held that the landlord is entitled for an order of eviction under Section 11(2)(b) of the Act. The Rent Control Court found that the need projected in the Rent Control Petition for seeking order of eviction under Section 11(3) of the Act is bona fide. Further, the first proviso to Section 11(3) of the Act has no application and the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. Therefore, the tenant is liable to be evicted from the petition schedule shop rooms under Sections 11(2)(b) and 11(3) of the Act. In the result, the Rent Control Court by the order dated 18.12.2018 allowed R.C.P.No.1 of 2017 by directing the tenant to pay Rs.60,000/- being arrears of rent for the period from December, 2015 to March, 2016 within a period of six R.C.Rev.No.108 of 2021 4 months from the date of order with interest at 6% per annum from the date on which it has fallen due and Rs.1,000/- being the charges of Ext.A4 notice. The Rent Control Court directed the tenant to surrender vacant possession of the petition schedule shop rooms on the ground of bona fide need of the landlord to start a hardware and electrical shop, within a period of six months from the date of the order and in the event of failure of the tenant to surrender vacant possession, the landlord was allowed to get the order executed through process of the court. 3. Feeling aggrieved by the order of eviction granted by the Rent Control Court in R.C.P.No.1 of 2017, the tenant filed R.C.A.No.2 of 2019 before the Rent Control Appellate Authority (Addl. District Judge-I), Mavelikkara, under Section 18(1)(b) of the Act. The Appellate Authority by the judgment dated 08.03.2021 confirmed the findings of the Rent Control Court granting order of eviction under Section 11(2)(b) and Section 11(3) of the Act. However, the Appellate Authority found that the order of the Rent Control Court directing the tenant to pay Rs.60,000/- being arrears of rent with interest and charge was beyond its jurisdiction and competence and R.C.Rev.No.108 of 2021 5 therefore, that direction was set aside. 4. Challenging the judgment dated 08.03.2021 of the Rent Control Appellate Authority in R.C.A.No.2 of 2019 and the order dated 18.12.2018 of the Rent Control Court in R.C.P.No.1 of 2017, the petitioner is before this Court in this Rent Control Revision, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 5. On 16.09.2021, when this Rent Control Revision came up for consideration, the learned counsel for the respondent-landlord undertook that the landlord will not request for any coercive steps before the Execution Court, for the time being, since the matter is being heard by this Court. The above undertaking was recorded. 6. Heard the learned counsel for the petitionertenant and also the learned counsel for the respondentlandlord. 7. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the judgment dated 08.03.2021 of the Rent Control Appellate Authority in R.C.A.No.2 of 2019 and the order dated 18.12.2018 of the Rent Control Court in R.C.Rev.No.108 of 2021 6 R.C.P.No.1 of 2017, insofar as the order of eviction granted under Section 11(3) of the Act is concerned, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 8. The learned Senior Counsel for the petitionertenant would contend that the finding of the Rent Control Court as well as the Rent Control Appellate Authority that the need projected in the Rent Control Petition by the landlord in order to seek an order of eviction under Section 11(3) of the Act is bona fide and that the first proviso to Section 11(3) has no application in the facts of the case on hand and that the tenant is not entitled to protection under the second proviso to Section 11(3) of the Act are perverse and patently illegal, warranting interference in exercise of the revisional jurisdiction under Section 20 of the Act. 9. Per contra, the learned counsel for the respondent-landlord would contend that, on a proper appreciation of the pleadings and evidence on record the Rent Control Court arrived at a conclusion that the landlord is entitled for an order of eviction under Section 11(3) of the Act. The said finding was confirmed by the Appellate Authority in the appeal filed by the tenant under Section R.C.Rev.No.108 of 2021 7 18(1)(b) of the Act. The concurrent finding of fact by the Rent Control Court and the Appellate Authority on the grounds of eviction sought for in R.C.P.No.1 of 2017 warrants no interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act in the absence of any vitiating circumstances pointed out by the tenant. 10. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will R.C.Rev.No.108 of 2021 8 be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 11. In **Adil Jamshed Frenchman v. Sardur Dastur** **Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a bona fide R.C.Rev.No.108 of 2021 9 requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 12. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. R.C.Rev.No.108 of 2021 10 13. In the instant case, the bona fide need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that the landlord requires the petition schedule shop rooms for starting hardware and electrical shop. In the Rent Control Petition, it is stated that the landlord, who is employed in Gulf country at the time of filing of the Rent Control Petition is likely to loose his employment at any time and therefore, he had purchased the property along with the petition schedule shop rooms on 04.12.2015, vide sale deed No.2118 of 2015. The landlord is having necessary funds for starting the proposed business. In paragraph 5 of the Rent Control Petition, which is one dated 13.03.2017, the landlord has stated that he is not in ownership of any other shop rooms in Kayamkulam town or Kayamkulam Village other than the building consisting of the petition schedule shop rooms. The tenant is conducting furniture business in the petition schedule shop rooms and there are other buildings in the locality and also in Kayamkulam town for the tenant to conduct furniture business. The tenant is not mainly depending upon the R.C.Rev.No.108 of 2021 11 income derived from the business conducted in the petition schedule shop rooms for his livelihood. He is having other source of income and properties and he is conducting furniture business in the name of his son at Kayamkulam and other places and the tenant is also an assessee of income tax. 14. In the counter filed by the tenant in R.C.P.No.1 of 2017, it is stated that the building in question is a threestoried building. The ground floor and first floor of that building were leased out to the tenant by the original owner in the year 2005. The tenant is having furniture business under the name and style, Shalimar Furnitures, in two floors of the building. On 01.12.2014, the rental agreement with the original owner was renewed by executing a fresh lease deed. After the execution of fresh lease deed, the original owner issued a notice to the tenant requesting him to vacate the premises by the expiry of 11 months period mentioned in that deed. The tenant sent reply expressing his inability to vacate the building. Thereafter, the original owner sold the property to the respondent herein, in the year 2016. Though the tenant was ready to pay monthly rent to the respondent herein-landlord, he refused to accept the same. R.C.Rev.No.108 of 2021 12 15. Regarding the bona fide need projected in the Rent Control Petition, the tenant contended that the landlord is not employed in Gulf but he is doing many business in Gulf by investing huge amounts. He is not going to stop those business in the nearby future. The landlord purchased the building in question with the income so derived. He had also purchased several properties with building in Kayamkulam town, Kayamkulam Village and Krishnapuram Village. He is having an extent of 17 Ares 22 Sq.meters comprised in Re.Sy.No.112/14 of Kayamkulam Village with a building, within Kayamkulam town limit and the said property is on the northern side of Kayamkulam-Punalur Road. Therefore, the ground of eviction under Section 11(3) is without any bona fides and made with the sole intention of evicting the tenant. The averment that the landlord intents to start hardware and electrical business in the petition schedule shop rooms is made only as a ruse for evicting the tenant. In the counter, it is contended that the tenant is conducting furniture business after investing an amount of Rs.15,00,000/-. The tenant had availed a loan of R.C.Rev.No.108 of 2021 13 Rs.15,00,000/- from State Bank of India, Kayamkulam. There are more than ten persons employed in the shop. The tenant has to recover a sum of Rs.15,00,000/- from various customers. The tenant is mainly depending on the income derived from the business conducted in the petition schedule shop rooms for his livelihood and he has no other income. There is no other suitable building available in the locality for carrying on or to shift furniture business. 16. Before the Rent Control Court, the landlord was examined as PW1, who deposed that he is working in Gulf and since there are chances of him loosing job at any time, it is highly necessary to start a business in his native place. For that purpose, he purchased the building in question and decided to start a hardware and electrical shop in it. PW1 has also deposed that he is having the requisite capital for starting the business and he bona fide requires the premises for that purpose. 17. Before the Rent Control Court, the tenant contended that the need put forward in the Rent Control Petition is not genuine since the landlord is employed in Gulf and he owns extensive properties and income. As rightly R.C.Rev.No.108 of 2021 14 found by the Rent Control Court and also the Appellate Authority, the only requirement of the bona fide need under Section 11(3) of the Act is that the need put forward by the landlord must not be a mere desire and the same must be real, sincere and honest. From the oral testimony of PW1, it has come out in evidence that he is working in a firm by name, Abdul Bari Nashmi Al–Shammini Establishment. He has categorically deposed that he is not running any business in Gulf. Though PW1 has been cross examined in extenso, nothing could be brought out to discredit his version. From the oral testimony of RW1, it has come out in evidence that his version regarding running of business by the landlord in Gulf is nothing but hearsay. The Appellate Authority rightly noticed that running or owning a business abroad is not at all a valid ground for suspecting the bona fides of the landlord. 18. In **State of Kerala v. V. P. Joseph [2016 (2) KHC 260]** a Division Bench of this Court was dealing with a case in which the court below rejected the bona fide need projected by the landlord as not genuine on two grounds, i.e., the landlord is a wealthy person getting sufficient income by way of rent and also getting a good pension and R.C.Rev.No.108 of 2021 15 as such there is no necessity for him to start a business; and the landlord has no prior experience in conducting the business. The Division Bench noticed that, in the decision in **Abdul Rub v. Jobby Tharian [2003 (3) KLT 733]** it has been held that law does not require that impecunious (poor) landlord alone can think of starting an income generating activity in order that need set up will pass through the test of bona fide. Law does not insist that a landlord having other source of income shall not carry out another income activity or venture to start a new business. Further the mere difficulty for the tenant to shift his business to new premises and difficulty in collecting the amounts due from the customers is not a ground for denying the order of eviction on the ground of bona fide need. 19. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. 20. During the pendency of R.C.A.No.2 of 2019, along with I.A.No.6 of 2020, the tenant produced two building R.C.Rev.No.108 of 2021 16 permits alleged to have been obtained by the landlord. Relying on those documents, it was contended that the landlord has acquired possession of two new buildings, which would be sufficient to satisfy his requirement for proposed business. Along with that application, the landlord filed I.A.No.2007 of 2020, seeking an order to appoint an Advocate Commissioner in order to inspect the new premises of the landlord. The Appellate Authority deputed an Advocate Commissioner, who inspected the premises and filed Ext.C1 report and mahazer, which was marked as Ext.C2 and the building permits were marked as Exts.B4 and B5. 21. Before the Appellate Authority, relying on the decision of the Apex Court in **Hazmath Rai v. Raghunath Prasad [AIR 1981 SC 1711]** , the learned counsel for the tenant contended that since the landlord had constructed a four-storied building having substantial areas on all its floors and another building in Re.Sy.No.106/8 having an extent of 174.72 Sq.Meters in the heart of Kayamkulam town, which is entirely sufficient to cater his needs, there exists no need for the landlord to occupy the petition schedule shop rooms. 22. On the other hand, the learned counsel for the landlord contended that the construction of four-storied R.C.Rev.No.108 of 2021 17 building is at an infant stage and the other building is only a temporary shed constructed by the person to whom the property was let out. After considering the rival contentions and also the materials placed on record, the Appellate Authority found that there is no merit in the contentions raised by the tenant. 23. In **Panoli Surendran v. P. M. Mammootty [ILR 2009 (2) Kerala 124]** a Division Bench of this Court noticed that, as held by the Apex Court in **Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256]** , the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the court has power to take note of subsequent events and mould the relief, as claimed originally has, by reason of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete R.C.Rev.No.108 of 2021 18 justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In **Panoli Surendran** , the Division Bench noticed that, the power of the court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of the Nagpur High Court in **Chhote Khan v. Mohd. Obedulla Khan [AIR 1953 Nagpur 361]** . The Full Bench held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. 24. In **Vayalilakath Abdul Nazar v. Paruthithodi Mammad Koya [2011 (2) KHC 677]** the Division Bench of this Court was dealing with a case in which there was no R.C.Rev.No.108 of 2021 19 evidence to show that the landlord is in possession of another building of his own so as to attract the first proviso to Section 11(3) of the Act. It was stated by PW1 that a petition was filed to evict the tenant in possession of another gumpty shop since that gumpty shop was on the verge of collapse. In order to disentitle the landlord from getting eviction under Section 11(3) of the Act, the tenant contended that the building situated behind the gumpty shop belongs to the landlord. But, no document could be produced to show that the landlord is the absolute owner of that building. The business conducted in the building situated behind the gumpty was run by the brother of PW1. That shop was stated to be held by PW1 and his brother. In **Asher v. Hassankutty Hajee [2004 (2) KLT 446]** it was held that the expressions ‘his own’ ‘in his possession’ used in the first proviso to Section 11(3) of the Act would show one's exclusive ownership and possession. Words ‘his own’ ‘in his possession’ excludes all others from the ownership or possession of the property. In other words, the test is that a landlord who has building of his own in his possession has the right of possession, right to enjoy and right to R.C.Rev.No.108 of 2021 20 dispossess, i.e., _jus sibi habendi and jus alteri non habendi_ or _jus prohibendi_ . If he is a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others. Exclusive ownership and possession are sine qua non for invoking the first proviso to Section 11(3) of the Act. In **Vayalilakath Abdul Nazar** the Division Bench reiterated that the burden to establish that the landlord is the owner and in exclusive possession of another building is on the tenant. 25. In the instant case, as evident from Ext.B4 building permit, which is one dated 11.12.2020, the property in which the building is constructed, is a co-ownership property. Apart from the landlord, the property and building are owned by one Shamla. Therefore, the Appellate Authority, relying on the decision in **Lainakalillath Kooliyangal Kamarunnisa v. Shabeer [2019 (4) KLT 508]** , rightly held that the first proviso to Section 11(3) has no application. From Ext.C2 report, the Appellate Authority found that the construction of the building has not been R.C.Rev.No.108 of 2021 21 completed and it is only in an infant stage. Further, the building in Re.Sy.No.160/8 is only a temporary construction made of iron sheets and iron pillars and that is in possession of someone else. Therefore, relying on the decision in **Gaya** **Prasad v. Pradeep Srivastava [AIR 2001 SC 803]** , the Appellate Authority rightly held that those facts cannot in any manner satisfy the requirement of the landlord now projected in the Rent Control Petition. 26. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 27. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have R.C.Rev.No.108 of 2021 22 rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso R.C.Rev.No.108 of 2021 23 itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 28. Insofar as the second proviso to Section 11(3) of the Act is concerned, the Appellate Authority found that in view of the law laid down in **Ammu v. Nafeesa [2015 (5) KHC 718]** and **Shahul Hameed v. Abdul Razak [ILR 2017 (1) Ker. 159]** , the tenant cannot say that he need not produce any evidence to prove his income if he has only one source of income. Before the Rent Control Court, the tenant has not produced even a scrap of paper to prove his income, which he is deriving from the business conducted in the petition schedule shop rooms. Therefore, the Appellate R.C.Rev.No.108 of 2021 24 Authority confirmed the findings of the Rent Control Court that the tenant failed to prove the first limb of the second proviso to Section 11(3) of the Act. Regarding the second limb of the second proviso to Section 11(3) of the Act, the tenant has not adduced any convincing evidence to prove that no other suitable building are available in the locality to shift his business. The tenant has not examined the accommodation controller or has produced any document to show that no other suitable buildings are available in the locality. On the other hand, the oral testimony of the Advocate Commissioner as PW3 and Ext.C1 report show that other suitable buildings are available in the locality for conducting furniture business of the tenant. The Advocate Commissioner has specifically reported the availability of two-storied building near railway station and has deposed that the same is suitable for conducting furniture business. Though, in Ext.C1, it was stated that the said building has lesser space than the petition schedule building and it is not having much public access like the petition schedule building, the Appellate Authority observed that, as rightly found by the Rent Control Court, while adjudicating the suitability of R.C.Rev.No.108 of 2021 25 the building mathematical equivalents of the area or rent cannot be expected and the court has only to see that the tenant is able to carry on his existing activity in the new premises, even if the area is less, as held in **Francis v. Sreedevi Varasiyar [2003 (3) KLT 230]** . The Appellate Authority found that the tenant has not adduced any convincing evidence to show that the said building is not at all suitable to him to conduct his business. Therefore, the Appellate Authority rightly confirmed the finding of the Rent Control Court that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. 29. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section R.C.Rev.No.108 of 2021 26 (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion. 30. 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 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, ## R.C.Rev.No.108 of 2021 27 regularity and propriety of the order impugned before it. ## 31. In **T. Sivasubramaniam v. Kasinath Pujari** **[(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. ## 32. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant R.C.Rev.No.108 of 2021 28 existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional - court will not be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 33. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench R.C.Rev.No.108 of 2021 29 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. 34. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said - to be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings R.C.Rev.No.108 of 2021 30 rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 35. Viewed in the light of the law laid in the decisions referred to supra, it cannot be said that the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, which now stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below. 36. The learned Senior Counsel for the petitionertenant would submit that, considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant may be granted at least two years’ time to give vacant possession of the petition schedule shop rooms. The learned Senior Counsel would further submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of ## R.C.Rev.No.108 of 2021 31 the petition schedule shop rooms to the respondent-landlord. 37. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned order of the Rent Control Court and the impugned judgment of the Rent Control Appellate Authority; however by granting eight months’ time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop rooms to the respondent-landlord, considering the situation prevailing in the Country on account of COVID-19 pandemic, subject to the following conditions: - (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 rooms to the petitioner-landlord within five months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop rooms; - (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 ## R.C.Rev.No.108 of 2021 32 - copy of this order, and shall continue to pay rent for every succeeding month, without any default; - (iii) Needless to say, in the event of the respondenttenant 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 rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. ## Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** yd PTO R.C.Rev.No.108 of 2021 33 The period 'five months' mentioned in Clause (i) of the operative portion of the final order in R.C.Rev.No.108 of 2021 dated 05.11.2021 is corrected as 'eight months' as per order in I.A.No.1 of 2022 in R.C.Rev.No.108 of 2021 dated 09.02.2022. Sd/- **Deputy Registrar**