Kadavan Adam v. K.P. Musthafa, K.P. Faizal, K.P. Shameem, and K.P. Shajeer

## **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 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943** **R.C.REV.NO. 349 OF 2019** **AGAINST THE JUDGMENT DATED 11.04.2019 IN R.C.A.10 OF 2017 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE),THALASSERY AND AGAINST THE ORDER DATED 31.10.2016 IN R.C.P.NO.266 OF 2015 OF RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR.** ## **REVISION PETITIONER:** ## **KADAVAN ADAM** **AGED 41 YEARS, S/O.HAMSA, MEAT STALL MARKET, PUTHIYATHERU, KANNUR-670 011.** **BY ADV C.LEENA** ## **RESPONDENT/S:** - **1 K P MUSTHAFA AGED 46 YEARS, S/O.ABDUL HAMEED HAJI, FATHIMA COTTAGE, MILLA ROAD, VALAPATTANAM, P.O.VALAPPATANAM S.O., KANNUR DISTRICT-670 010.** **2 K.P.FAIZAL, AGED 42 YEARS, S/O.ABDUL HAMEED HAJI, FATHIMA COTTAGE, MILLA ROAD, VALAPATTANAM, P.O.VALAPPATANAM S.O., KANNUR DISTRICT-670 010.** **3 K.P.SHAMEEM AGED 37 YEARS, S/O.ABDUL HAMEED HAJI, FATHIMA COTTAGE, MILLA ROAD, VALAPATTANAM, P.O.VALAPPATANAM S.O., KANNUR DISTRICT-670 010.** 2 ## R.C.Rev.No. 349 of 2019 **4 K.P.SHAJEER, AGED 35 YEARS, S/O.ABDUL HAMEED HAJI, FATHIMA COTTAGE, MILLA ROAD, VALAPATTANAM, P.O.VALAPPATANAM S.O., KANNUR DISTRICT-670 010. BY ADV SRI.K.RAJESH SUKUMARAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 20.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 349 of 2019 ## **O R D E R** ## Ajithkumar, J. This is a Rent Control Revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner is the tenant. The respondents-landlords filed R.C.P.No.266 of 2015 before the Rent Court (Additional Munsiff), Kannur, seeking eviction of the petitioner from the petition schedule shop room under Section 11(3) and 11(4) (iii) of the Act. The petition was allowed, ordering eviction under Section 11(3) of the Act. The relief claimed under Section 11(4)(iii) of the Act was rejected. The petitioner filed an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (District Judge), Thalassery as R.C.A.No.10 of 2017. The appeal was dismissed. The petitioner feeling aggrieved by the said judgment and also the order, has filed this revision petition. 2. Heard the learned counsel for the petitioner and also the learned counsel appearing for the respondents. 3. The petition schedule shop room and its two adjoining rooms originally belonged to Smt.K.P.Pathoonhi. On 4 ## R.C.Rev.No. 349 of 2019 her death, the said shop rooms devolved upon the respondents as well as their three siblings. One of the siblings, Smt.Naseema, wanted to start a readymade manufacturing and selling unit by making use of the three rooms, including the petition schedule shop room. The respondents have no other buildings suitable for the purpose in their possession. Hence, they filed three Rent Control Petitions, including R.C.P.No.266 of 2015, which is against the petitioner. 4. The petitioner filed a counter statement resisting the petition for eviction. He contended that the need urged by the respondents was not bonafide and several other rooms are available in the possession of the respondents, which can be made use, if at all Smt.Naseema wanted to start such a business. The area where the petition schedule shop room situates is not suitable for a readymade garment shop and that the petitioner is entitled to get the benefit of the second proviso to Section 11(3) of the Act. 5. PW1, Naseema, and PW2 were examined and Exts.A1 and A2 were marked on the side of the respondents; 5 ## R.C.Rev.No. 349 of 2019 RW1 and RW2 were examined and Ext.B1 was marked on the side of the respondents in the joint trial of the aforesaid three Rent Control Petitions. The Rent Control Court after considering the aforesaid evidence, ordered eviction under Section 11(3) of the Act and rejected the relief claimed under Section 11(4)(iii) of the Act. 6. The learned counsel appearing for the petitioner stressed on two points, namely, the need urged by the respondents is not bonafide and the respondents failed to satisfactorily explain the special reasons for not occupying the rooms in their possession for the projected need. It is the contention of the learned counsel that apart from stating that PW1 did some enquiries about the price of machines and other equipments required for starting a readymade manufacturing unit, no effort was put in by her, and therefore, there was no genuine need for PW1 to start such a business. As regards the first proviso to Section 11(3) of the Act, the learned counsel for the petitioner contended that at least four rooms are available vacant with the respondents, but no explanation for not occupying the said rooms is offered by the 6 ## R.C.Rev.No. 349 of 2019 respondents. 7. PW1 Smt.Naseema deposed in court categorically that she remained unemployed and she wanted to start a readymade manufacturing and selling unit. There is no much dispute as to the fact that three rooms together can be made use for the purpose. One reason stated for unsuitability of the said rooms is that the area where the rooms are situated is a market place. There is nothing on record to infer that since the rooms are situated near a market place, those rooms are not suitable to start such a business. The Rent Control Court as well as the Appellate Authority considered the evidence in detail and had come to the conclusion that the need urged by the respondents is bonafide. 8. PW2 is the tenant in room No.1038 belonging to the respondents. Ext.A2 is the rent agreement. From the said document, it is quite evident that PW2 has been in occupation of the said room. Other rooms pointed out by the petitioner are not shown to be lying vacant. Thus there is only a contention that such rooms are vacant and it is not supported by any evidence. 7 ## R.C.Rev.No. 349 of 2019 9. 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. 10. 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 8 R.C.Rev.No. 349 of 2019 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. 11. 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 9 ## R.C.Rev.No. 349 of 2019 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. 12. 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 10 ## R.C.Rev.No. 349 of 2019 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 reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 13. 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 11 R.C.Rev.No. 349 of 2019 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]** 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. 15. In view of the above legal principles, it is not possible for us to re-appreciate the evidence, especially when 12 R.C.Rev.No. 349 of 2019 the Appellate Authority, being the first appellate court, has considered and appreciated the entire evidence in great detail and confirmed the finding of the Rent Control Court. 16. The learned counsel for the petitioner did not stress on the contention of the petitioner, based on the second proviso to Section 11(3) of the Act. 17. Having considered all the aforesaid aspects, we are of the view 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, in exercise of the powers under Section 20 of the Act. Hence this Revision Petition fails. We, accordingly, dismiss it. 18. The learned counsel for the petitioners has made a request to afford one year time for vacating the premises pointing out the difficulty in finding out another room for shifting the business. 19. Having considered all the aspects, we deem it appropriate to grant one year time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: 13 R.C.Rev.No. 349 of 2019 - (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 shop room to the petitioners-landlords within one year 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 14 ## R.C.Rev.No. 349 of 2019 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 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