Jose NJ v. PNA Vijayaraman

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939 **RCRev..No. 9 of 2018** (AGAINST THE JUDGMENT IN RCA 55/2016 of RENT CONTROL APPELLATE AUTHORITY(DISTRICT JUDGE), MANJERI DATED 14-09-2017 AGAINST THE ORDER IN RCP 33/2014 of RENT CONTROL COURT (MUNSIFF COURT), MANJERI DATED 30-07-2016) ## **REVISION PETITIONER/APPELLANT/RESPONDENT** JOSE NJ, S/O.LATE JOSEPH @ NELLISSERI JOSEPH VELLARANGAL, VAYAPPARAPPADY MANJERI POST, ERANADU TALUK MALAPPURAM DISTRICT. BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.ABE RAJAN ## **RESPONDENT/RESPONDENT/PETITIONER** : PNA VIJAYARAMAN S/O.POTTAMMAL NECHIPARAMBIL AYYAPPAN VAIDHYAR KARUVAMBRAM POST KARUVAMBRAM AMSOM & DESOM ERANADU TALUK-676 123. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- R.C.R.No.9 of 2018 -------------------------------Dated 16[th] January, 2018 ## **ORDER** ## **Ravikumar, J.** The tenant who is the respondent in R.C.P.No.33 of 2014 on the files of the Rent Control Court, Manjeri and the appellant in R.C.A.No.55 of 2016 on the files of the Rent Control Appellate Authority, Manjeri, filed this appeal challenging the finding under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short `the Act') made by the Rent Control Appellate Authority virtually, affirming the findings of the Rent Control Court thereof. The respondent herein, the landlord filed the aforesaid rent control petition under Sections 11(3) and 11(2)(b) of the Act. Pleading therein is to be effect that the petition schedule shop room is required for conducting business of sales and services of electrical goods, for his son-in-law. Furthermore, it is averred therein that his daughter and her family are not having sufficient means for their livelihood and the son-in-law is only earning a nominal amount which is insufficient for running the family. Before the Rent Control Court, on the side of the respondent herein, he got himself examined as PW1 and his son-in-law Santhosh R.C.R.No.9 of 2018 2 was examined as PW2. On his side Exts.A1, A1(a), A1(b) and A2 were got marked. On the side of the revision petitioner herein/the respondent therein, he was examined himself as RW1 besides getting marked Exts.B1, B2, B2(a) and B2(b). Ext.C1 is the commission report dated 27.7.2015 and Exts.C1(a) and C1(b) are the sketches. On evaluating the evidence on record and appreciating the rival contentions the Rent Control Court allowed the petition both under Sections 11(2) (b) and 11(3) of the Act. Feeling aggrieved by the said order of the Rent Control Court the revision petitioner herein took up the matter in appeal. The Rent Control Appellate Authority confirmed the order of the Rent Control Court under Section 11(3) of the Act and at the same time, set aside the order passed under Section 11(2)(b) of the Act. It is in the said circumstances that challenging the order passed by the Appellate Authority confirming the order passed by the Rent Control Court under Section 11(3) of the Act this appeal has been preferred. 2. We have heard the learned counsel for the revision petitioner. 3. Before adverting to the contentions raised on behalf of the revision petitioner it is only worthwhile to look into the scope of interference, in exercise of the revisional jurisdiction under Section 20 of the Act, with the concurrent findings of the courts below on a particular issue. The said question was considered in detail by a R.C.R.No.9 of 2018 3 Constitution Bench of the Hon'ble Apex Court in **Hindustan Petroleum Corporation Ltd.** v. **Dilbahar Singh (2014 (4) KLT 182 (SC)).** An earlier two Judge Bench decision of the Hon'ble Apex Court in **M/s. Sri.Raja Lakshmi Dyeing Works & Ors.** v. **Rangaswamy Chettia** r reported in **(1980) (4) SCC 259,** was quoted with approval by the Hon'ble Apex Court as follows:- “`Appeal' and `revision' are expressions of common usage in Indian statute and the distinction between `appellate jurisdiction' and `revisional jurisdiction' is well known though not well defined. Ordinarily, the appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute.” Going by Section 20 of the Act, the revisional jurisdiction can be exercised for the purpose of satisfying by the High Court itself as to the legality, regularity or propriety of the order or proceedings against the R.C.R.No.9 of 2018 4 orders passed by the subordinate courts. In the said decision, the Hon'ble Apex Court further held that a finding of fact recorded by a Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or if such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, then it would be open for correction by the revisional court as in such circumstances, it is to be treated as a finding not in accordance with law. Bearing in mind the aforesaid settled position we will consider the question whether exercise of revisional jurisdiction is required in this case. 4. As noticed hereinbefore, as regards the bona fide need, projected for getting an order of eviction under Section 11(3) of the Act, there is concurrent findings. Though the Rent Control Court passed an order in favour of the landlord under Section 11(2)(b) as well the same was set aside by the Rent Control Appellate Authority. However, no revision has been preferred by the landlord. In such circumstances, the question to be looked into is whether the concurrent findings made in this case under Section 11(3) of the Act invite interference. We have already adverted to the bona fide need expressed by the landlord in the case on hand. In a bid to establish the same, the landlord who is the respondent herein got himself examined as PW1 besides getting R.C.R.No.9 of 2018 5 examined his son-in-law as PW2. The order passed by the Rent Control Court and the judgment delivered by the Rent Control Appellate Authority would reveal that the landlord while being examined as PW1 deposed to the effect that his daughter Smt.Rasitha was married to PW2, who is working under another employer for a very meagre salary. He would further depose that his son-in-law wanted to start a business in the name and style “Sales and Services of Electrical equipments” and the petition schedule building is bona fidely required for establishing such business. As noticed hereinbefore, the son-in-law of the landlord was examined as PW2 and he would depose in tune with the oral account of PW1. The learned counsel appearing for the revision petitioner submitted that PW2 had failed to depose regarding the bona fide need of the room in question and gave emphasis to the fact that while being examined PW2 had deposed to the effect that he had not seen the room in question. A scanning of the impugned order passed by the Rent Control Court as also the judgment delivered by the Rent Control Appellate Authority would reveal that on evaluating the evidence on record the courts below arrived at the conclusion that the landlord had succeeded in establishing the bona fide need. The question is whether in a petition seeking eviction of a building on the ground of bona fide need for starting business by the son-in-law would fall within the purview of the provisions under Section 11(3) of the Act. R.C.R.No.9 of 2018 6 It has been considered in detail by the courts below. The learned counsel appearing for the revision petitioner, to mount challenge against such findings, relied on the decision of a Division Bench of this Court in **Albert Mendez** v. **Rema Chandran (2007 (3) KLT 23)** . A perusal of paragraph 8 thereof would reveal that in that case, the Rent Control Court found that there was absolute absence of pleadings disclosing the bona fide requirement. Still, the Rent Control Appellate Authority reversed the adverse conclusion arrived at, by the Rent Control Court. Evidently, in that case, the Division Bench considered the question whether the mere reason that the husband is a member of the family, would presuppose the fact that the husband is a dependent of the wife. The Division Bench further observed that the section contemplates eviction only if a member of the family for whose benefit eviction is sought, is a dependent of the landlord. True that dependency need not be financial dependency and it can also be a dependency on building. Furthermore, a family can have a member, who is not a dependent of the landlord and in which case Section 11(3) cannot be pressed into service. The requirement of the section can be satisfied only if it is pleaded and proved that the concerned member of the family is dependent on the landlord. We have already adverted to the pleadings made by the landlord in the rent control petition. In the contextual situation it is only apropos to refer to the recital in paragraph R.C.R.No.9 of 2018 7 7 of the Order of the Rent Control court in R.C.P.No.33 of 2014. It would reveal that the respondent had denied the pleading of the petitioner that he has bona fide requirement for the petition schedule room in order to start sales and services of electrical goods for his sonin-law, Santhosh. The respondent had also denied the pleading of the petitioner that his daughter, son-in-law and their family are depending on him. The aforesaid recital itself would reveal that the landlord had made pleadings regarding bona fide need of the family member concerned in the rent control petition and evidently, to substantiate such pleadings he had adduced oral evidences as well. The revision petitioner did not dispute the said aspects. In such circumstances, the decision in **Albert Mendez'** case (supra) would offer no help to the petitioner herein. That apart, a perusal of the decision in **Albert Mendez'** case would reveal that in paragraph 10 therein the decision of another Division Bench of this Court in **Shaji Varghese** v. **Cherian (1993 (1) KLT 133)** was referred to. In **Shaji Varghese'** case this Court held that a meticulous evaluation of the pleadings is not necessary in a summary proceeding under the Kerala Buildings (Lease and Rent Control) Act, 1965. At the same time, while agreeing with the said view made by this Court in **Shaji Varghese'** case (supra) the Division Bench in **Albert Mendez'** case (supra) held that what would be required to be proved as per the express words of the section could not R.C.R.No.9 of 2018 8 be compromised and to that extent proper pleadings are required to be made and evidence would also be led and in the absence thereof, a petition under Section 11(3) of the Act is bound to fall. We have already noted that the recital in **Albert Mendez'** case (supra) would offer no help to the petitioner and arrived at the conclusion that there are sufficient pleadings on matters required to be proved as per the express words in Section 11(3) of the Act in the rent control petition. Evidently, the landlord had adduced evidence as PW1 besides getting examined his son-in-law as PW2. Their oral testimonies elaborately discussed by the courts below would undoubtedly show that they had deposed in tune with the pleadings regarding the bona fide need. It is not the case of the revision petitioner that the courts below had incorrectly adverted to the evidence though he got grievance against appreciation of evidence. When once the bona fide need is established by the landlord, it is for the tenant to establish that he is entitled to the benefit either under the first proviso to Section 11(3) or under the second proviso to Section 11(3), to avert eviction. Evidently, in this case, a feeble attempt was made by the revision petitioner to establish that he is entitled to get the benefit under the first proviso to Section 11(3) of the Act. He would contend that even the evidence of PWs 1 and 2 would reveal the availability of a vacant room adjacent to the petition schedule room. Evidently, the said contention was also R.C.R.No.9 of 2018 9 considered by the courts below. In paragraphs 14 to 16 the appellate authority dealt with the said issue. After referring to Exts.C1, C1(a) and C1(b), the appellate authority found that what was reported thereunder is that other than the `office room' no other room is vacant in the said building. Ext.B1 is the abstract of property tax register of Manjeri Municipality produced on the side of the revision petitioner. It would go to show that one room near court road in PNA Complex bearing No.XX/976 D is vacant. It was found that Ext.B1 would reveal such a vacancy position during the period 2007-2008. The appellate authority took note of the fact that the rent control petition was filed only in the year 2014 and therefore, the availability of a vacant building during the period 2007-2008 would be of no significance while considering the petition. This view taken by the courts below cannot be said to be a palpably erroneous view warranting interference. In fact, it is only a plausible view in view of the evidence discussed in detail. Paragraph 15 of the judgment of the appellate authority would reveal that even the revision petitioner himself would admit the fact that the room in question is styled only as `office room'. The courts below further found that occupation of an office room by the landlord could not be a reason for declining the relief sought for. In short, after hearing the learned counsel for the revision petitioner and perusing the concurrent findings entered into by the courts below we do not find any R.C.R.No.9 of 2018 10 reason at all to hold that the finding under Section 11(3) of the Act as also disinclination shown by the courts below to accept the contentions of the revision petitioner for getting the benefit of the first proviso to Section 11(3), warrant interference. 5. Now, the question is whether the revision petitioner has established that he is entitled to get the benefit of the second proviso to Section 11(3) of the Act. There can be little doubt with respect to the position that the burden that he is depending for his livelihood mainly on the income derived from the business carried in the building in question and that no suitable room for conducting the said business is available in the locality is on the tenant. The said conditions are conjunctive and both have to be proved to earn eligibility for the benefit of the said proviso. It is to be noted that besides his oral testimony there is absolutely no cogent evidence to establish that he is mainly depending for his livelihood on the income derived from the business being conducted in the building in question. In short, it is to be held that the courts below had rightly held that the revision petitioner had failed to establish his entitlement to get the benefit under the second proviso as well. In such circumstances and in the absence of reasons to hold that the conclusions and findings arrived at by the Rent Control Court and the appellate authority are an outcome of a misreading of evidence or that they are grossly erroneous and based on no evidence, R.C.R.No.9 of 2018 11 we are of the considered view that this revision petition has to fail. While we are about to part with the order the learned counsel for the revision petitioner made a submission that the revision petitioner may be granted some reasonable time to surrender vacant possession of the room in question in the light of the impugned order. In such circumstances, we grant six months' time to the revision petitioner/tenant to give vacant possession of the room in question to the respondent herein/landlord provided. He shall file an affidavit before the Rent Control Court carrying an undertaking that he would vacate the room in question on the date of expiry of the aforesaid period and further that he would continue to pay the rent at the admitted rate during such period. Such an affidavit shall be filed within two weeks from the date of receipt of a copy of this order. In the event of his failure to file such an affidavit in the aforesaid manner the benefit of extension of time granted would stand automatically re-called. Subject to the above, this revision petition is dismissed. Sd/- ## **C.T.RAVIKUMAR** ## **Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS