Johny v. Ammini

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 /8TH AGRAHAYANA, 1943** **R.C.REV.NO.153 OF 2021** **AGAINST THE JUDGMENT DATED 07.04.2021 IN R.C.A.NO.80 OF 2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THRISSUR AND THE ORDER DATED 22.08.2014 IN R.C.P.NO.1 OF 2011 OF THE RENT CONTROL COURT (MUNSIFF), CHAVAKKAD** ## **REVISION PETITIONER:** **JOHNY, AGED 62 YEARS, S/O.KOLLANNUR VEETTIL AIPPU, NEHRU NAGAR, KUNNAMKULAM VILLAGE DESOM, THALAPPILLY TALUK, KUNNAMKULAM P.O., THRISSUR DISTRICT, PIN - 680 503.** **ADV.SRI.DINESH MATHEW J.MURIKAN, SRI.VINOD S.PILLAI SRI.MOHAMMED THAYIB N.M. SMT.NAYANA VARGHESE SMT.ANSU SARA MATHEW** ## **RESPONDENT:** **AMMINI, W/O.LATE UKKRU, CHERUVATHUR HOUSE, KUNNAKULAM VILLAGE DESOM, THALAPPILLY TALUK, NOW RESIDING AT HOUSE NO.289, GIRIDHYA NIVAS-B, NEW STREET, AYYAVOO NAIDU COLONY, AMINJIKA RAI, CHENNAI - 600 029.** **SRI D.ANIL KUMAR** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.153 of 2021 ## **O R D E R** ## Ajithkumar, J. This revision petition was filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 against the judgment of the Rent Control Appellate Authority (Additional District Judge-II), Thrissur in R.C.A.No.80 of 2014. The Appellate Authority as per its judgment dated 07.04.2021 confirmed the order dated 22.08.2013 in R.C.P.No.1 of 2021 of the Rent Control Court (Munsiff), Chavakkad, as per which the revision petitioner-tenant, was directed under Sections 11(2)(b) and 11(3) of the Act to put the respondent in vacant possession of the petition schedule house within one month from the date of the order. 2. The respondent-landlady sought eviction on the ground of arrears of rent and bonafide need. It was contended that the petitioner defaulted rent; monthly rent being Rs.2,500/-, from 01.10.2008 onwards. The respondent along with her daughter has been residing at Chennai. She wanted to come back. Therefore, she wanted the petition schedule 3 R.C.Rev.No.153 of 2021 building for his residential purpose. She is not in possession of any other building for the purpose. Those were the reasons urged in support of her bonafide need. 3. The petitioner resisted the plea for eviction by filing a counter statement. It was contended that the need urged by the respondent was not bonafide. She is aged 85 years. Her two sons are residing at Kunnamkulam, along with whom she can conveniently reside. Two other vacant houses are available in the same compound and, if to reside separately, the respondent can reside in one of those buildings. In the light of those facts, the need set forth by the respondent was without any bonafides, according to the petitioner. The petitioner also claimed benefit of the second proviso to Section 11(3) by saying that he was conducting business also in the petition schedule building. Another contention put forward was that the respondent, in order to wreak vengeance as the petitioner refused to pay enhanced rent, has filed the petition for eviction. 4 R.C.Rev.No.153 of 2021 4. The respondent was examined as PW1. The petitioner was examined as RW1. Exts.A1 to A4 were received in evidence. The Rent Control Court after considering the said evidence held that the need of the respondent was bonafide and there was no reason to refuse order of eviction. The Appellate Authority considered the evidence in detail and confirmed the order of the Rent Control Court. 5. The learned counsel appearing for the petitioner submitted that the respondent, who at the time of examination, was aged above 86 years, would not be in a position to set up independent residence. It is pointed out that her two sons are residing independently and instead of residing along with them, the respondent never would take the risk of setting up independent residence at this age. It is further contended that there are two other vacant buildings in her possession and instead of opting one among such buildings for her residence, projected the present need only as a ruse for eviction. The reason pointed out for the grouse is that the petitioner refused to pay an enhanced rate of rent. 5 R.C.Rev.No.153 of 2021 6. The authorities below considered the said contentions of the petitioner and refused to accept. From the evidence on record, it cannot be seen that any other vacant building is there in the possession of the respondent. PW1 denied such a case put forward by the petitioner, but he did not produce any evidence to prove the same. Therefore, the said contention is not available to the petitioner either to impeach the bonafides of the need projected by the respondent or to claim protection of the first proviso to Section 11(3) of the Act. 7. When the landlady wanted to come home and to live peacefully along with her daughter in her own residence, the tenant cannot dictate that she should go and live along with her sons. It is the absolute freedom of the landlady to make use of her own building for the residence during her old age. There is absolutely no reason to doubt her bonafides. The building is admittedly a residential one. Although the petitioner raised a contention that the income derived from the business in the petition schedule building is his main 6 R.C.Rev.No.153 of 2021 source of livelihood, absolutely no evidence to show that he has conducted business ever in the building has come on record. In the said circumstances, we are unable to accept any of the contentions raised by the petitioner. 8. 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 (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 7 R.C.Rev.No.153 of 2021 9. 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 reappreciated 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 reappreciating 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. 8 R.C.Rev.No.153 of 2021 10. 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. 11. 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 existed or not. It was urged 9 R.C.Rev.No.153 of 2021 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 landlordtenant did not exist. 10 R.C.Rev.No.153 of 2021 12. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench 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. 13. 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 11 R.C.Rev.No.153 of 2021 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 rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 14. In view of the above legal principles, it is not possible for us to re-appreciate the evidence, especially when the Appellate Authority, being the first appellate court, has considered and marshalled the entire evidence in detail and confirmed the finding of the Rent Control Court. 15. Accordingly, we hold that there is no reason to interfere with the findings in the judgment of the Appellate Authority or in the order of the Rent Control Court. The judgment and the order do not suffer from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We dismiss it. 16. The learned counsel for the petitioner has made a request to afford six months time for vacating the building 12 R.C.Rev.No.153 of 2021 pointing out the difficulty to find out another building and making necessary arrangements for shifting his residence. The learned counsel for the respondent would submit that a period of four months for surrendering the building is reasonable. 17. Having considered all the aspects, we deem it appropriate to grant four months time to surrender vacant possession of the petition schedule building, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court 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 building to the petitioner-landlady within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, 13 R.C.Rev.No.153 of 2021 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 building will stand cancelled automatically and the petitioner-landlady 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