Jose v Abdul Sageer

## **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 22[ND] DAY OF NOVEMBER 2021/ 1ST AGRAHAYANA, 1943 R.C.REV.NO.89 OF 2021 AGAINST THE JUDGMENT DATED 18.12.2020 IN R.C.A.NO.27 OF 2014 OF RENT CONTROL APPELLATE AUTHORITY (I ADDITIONAL DISTRICT JUDGE), THRISSUR AND AGAINST ORDER DATED 12.12.2013 IN R.C.P.NO.2 OF 2020 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), IRINJALAKUDA** ## **REVISION PETITIONER:** **JOSE** **AGED 83 YEARS, S/O. ALAPPATT OUSEPH, RESIDING AT ALAPATT HOUSE, VELLANGALLUR DESOM, VADAKUMKARA VILLAGE, VELLANGALLUR P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 662. BY ADV SRI.G.SREEKUMAR (CHELUR)** **RESPONDENT:** **ABDUL SAGEER AGED 60 YEARS, S/O. PALLATHU SAIDU MUHAMMED, VELLANGALLUR DESOM, VADAKKUMKARA VILLAGE, VELLANGALLUR P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 662.** **BY ADVS. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.89 of 2021 ## **O R D E R** ## Ajithkumar, J. The petitioner is the respondent-tenant in R.C.P.No.2 of 2010 of Rent Control Court (Principal Munsiff), Irinjalakuda, a petition for eviction filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction as per order dated 12.12.2013. The petitioner preferred an appeal, R.C.A.No.27 of 2014 under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (Additional District Judge-I), Thrissur dismissed the appeal. Feeling aggrieved of the judgment of the Appellate Authority, the petitioner has filed this Revision Petition under Section 20 of the Act. 2. The respondent purchased the petition schedule shop rooms in 2007. He remained jobless. In order to raise income for looking after his family, he decided to start a business in provision articles and vegetables in the petition schedule shop rooms. He has no other convenient rooms in his possession. The petitioner has other sources of income. Several other vacant rooms are available to avail on rent in 3 ## R.C.Rev.No.89 of 2021 the locality. For those reasons, the respondent filed the petition for eviction on the ground of bonafide need. 3. The petitioner filed a counter statement. He contended that the need set forth by the respondent is without any bonafides. He is a real-estate broker. He has no intention to start a business as claimed. He has, in his possession, several other rooms. Suppressing that matter, he approached the court claiming eviction. The petitioner has no other source of income and he is depending for his livelihood solely on the income derived from the business in the petition schedule shop room. No other building is available in the locality to avail on rent also. The petitioner, for the above reasons, sought to dismiss the petition for eviction. 4. Heard Adv.Sri.G.Sreekumar Chelur, the learned Counsel appearing for the petitioner and Adv.Sri.K.G. Balasubramanian, learned counsel appearing for the respondent. 5. The bonafides of the respondent in seeking eviction is seriously challenged by the learned counsel appearing for the petitioner. It is his contention that if the respondent had 4 ## R.C.Rev.No.89 of 2021 an intention to start a business, he would have started in the upstairs rooms, which are lying vacant. He instead, even without disclosing availability of those rooms, has come forward with the plea for eviction of the petitioner. The learned counsel invited our attention to the oral testimony of PW1, the respondent, admitting availability of the vacant rooms in the first floor. Suppression of that fact while filing the petition itself is enough to find that the respondent has filed the petition for with a malafide intention. 6. It was further contended by the learned counsel appearing for the petitioner that the evidence of RW2, a witness examined by the petitioner to prove the business and sources of income of the respondent, stated that the respondent's intention is to get vacant possession of the petition schedule rooms and then sell it out. As regards the first proviso, the learned counsel brought to our attention the availability of other rooms and lack of proof regarding special reasons for claiming eviction. 7. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of 5 ## R.C.Rev.No.89 of 2021 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. 8. 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 6 R.C.Rev.No.89 of 2021 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. 9. 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 7 ## R.C.Rev.No.89 of 2021 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. 10. 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 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 reappreciate 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 8 R.C.Rev.No.89 of 2021 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 reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 11. 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 9 ## R.C.Rev.No.89 of 2021 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. 12. 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 rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 13. In **Gireeshbabu T.P. v. Jameela and others** **[2021 KHC 650]** , this Court considered as to what shall be the nature of proof required to establish the bonafide need as a ground for eviction. This Court in paragraph 49 of that 10 ## R.C.Rev.No.89 of 2021 decision after referring to the decisions relevant on the point held as follows: '49. 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 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 11 R.C.Rev.No.89 of 2021 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 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.' 12 ## R.C.Rev.No.89 of 2021 14. Keeping that in mind, we shall consider the contention of the petitioner. PW1, the respondent-landlord deposed regarding his desire to start a business in stationery items and vegetables in the petition schedule shop rooms. Oral testimony of RW2 with respect to real-estate business of PW1 unsupported by any other evidence is not sufficient to prove such a fact. Considering that evidence in detail, both the authorities below come to the conclusion that the need urged was bonafide. We find no reason to find that the reasoning are perverse or illegal. Hence, we do not propose to interfere with the said finding. 15. In **Kunju v. Fathima [2014 (3) KLT 563]** , this Court held that it cannot be understood from the first proviso to Section 11(3) of the Act that the landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. It was also held that a combined reading of the provision and the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he need 13 ## R.C.Rev.No.89 of 2021 satisfy the Rent Control Court the special reasons for not occupying the said premises. In other words, to non-suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord. 16. In **Kunhamina K. v. V.K.T.Aboobacker Haji [2016 (3) KLJ 247]** this Court considered the question as to the requirement of pleadings regarding other vacant building with the landlord. It was held that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before Court and he had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non-disclosure of this fact in the rent control petition and it is for the court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bonafide need. 17. Applying the aforesaid legal principles there was no reason to hold in this case that the respondent by not disclosing the availability of upstairs rooms forfeited his right 14 ## R.C.Rev.No.89 of 2021 to claim eviction. The reasons given by the respondent that he can conduct the proposed business profitably only in the ground floor rooms and the upstairs rooms are not conducive or suitable for his business is convincing. We accordingly hold that the first proviso to Section 11(3) does not stand in the way of the respondent's claiming eviction of the petitioner. 18. Coming to the second proviso to Section 11(3), no documentary evidence is produced by the petitioner regarding his income. There is no reliable evidence to show the quantum of income derived from the business in the petition schedule shop room. Thus the evidence on record is not at all sufficient to find that the income from the petition schedule shop rooms is the sole source of income of the petitioner. PW2, the local village officer produced and proved Ext.X1. That evidence would show that the petitioner possesses five items of property. However, the petitioner did not choose to bring in evidence the details of income generated from those properties. In such circumstances, we are of the view that the petitioner is not depending solely on the income derived from the business in the petition schedule shop rooms for his 15 ## R.C.Rev.No.89 of 2021 livelihood. The reports of the commissioner established availability of other convenient rooms for shifting the business of the petitioner as well. In view of those matters, we hold that the petitioner is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 19. Accordingly, we hold that there is no reason to interfere with the finding of the judgment of the Appellate Authority. It does not suffer from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We dismiss it. 20. The learned counsel for the petitioner has made a request to afford one year time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent would submit that a period of two months for surrendering the room is reasonable. 21. Having considered all the aspects, we deem it appropriate to grant four months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: (i) The respondent-tenant in the Rent Control Petition shall 16 ## R.C.Rev.No.89 of 2021 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 shop room to the petitioner-landlord within four 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 that he will 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 17 ## R.C.Rev.No.89 of 2021 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 and the petitioner-landlord 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