Karimpanakkal Hamza v. Kollampparambil Shaiju Kurian

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944** **R.C.REV. NO. 211 OF 2020** **(AGAINST THE JUDGMENT IN R.C.A. No. 9/2017 DATED 05.03.2020 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY/ ADDITIONAL DISTRICT JUDGE-III, MANJERI)** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** **KARIMPANAKKAL HAMZA** **AGED 56 YEARS S/O. AHAMMED, KARIMPANAKKAL HOUSE, NILAMBUR (P.O), MALAPPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADBULLA** **BY ADVS.K.DILIP SMT.SUSAN MATHEW** ## **RESPONDENT/APPELLANT/RESPONDENT:** **KOLLAMPARAMBIL SHAIJU KURIAN AGED 47 YEARS S/O. KURIAN,PROPRIETOR NOBLE STORE, V.K.ROAD, NILAMBUR AMSOM, (P.O) NILAMBUR, MALAPPURAM DISTRICT-679 330** **BY ADVS.SHRI.T.K.AJITH KUMAR SMT.AISWARYA RAMESAN** ## **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING** **ON 02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No.211 of 2020** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.211 of 2020** **------------------------------------------Dated this the 2[nd] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 05/03/2020 in R.C.A.No.9/2017 on the file of the Rent Control Appellate Authority (RCAA), Manjeri, against the order dated 04/01/2017 in R.C.P.No.48/2013 on the file of the Rent Control Court (RCC), Manjeri. The revision petitioner herein is the respondent in the appeal and the petitioner-landlord in the R.C.P. The respondent herein is the appellant in the appeal and the respondent-tenant in the R.C.P. The parties and documents will be referred to as described in the R.C.P. 2. R.C.P.No.48/2013 was filed by the petitioner-landlord seeking eviction of the respondent-tenant under Sections 11(2)(b) and 11(3) of the Act. According to the petitioner, as per the rental agreement dated 23/07/2012, the petition schedule room was let out to the respondent for a monthly rent of ₹3,000/-. The respondent had given an interest free 3 ## **R.C.R.No.211 of 2020** security deposit of ₹50,000/- at the time of execution of the rental agreement. It was further agreed that in case the agreement is renewed, the rent would be enhanced by 10%. The period of agreement expired on 23/06/2013. However, the respondent has not vacated the room so far. The respondent has also defaulted the payment of rent from July, 2013 onwards. It is further alleged in the petition that for the last 30 years, the petitioner has been working abroad. Now he intends to return home due to health reasons. The petitioner intends to start a mobile sale and service centre in the petition schedule room. Hence he _bona fide_ requires the tenanted premises for starting the proposed business. 3. The respondent-tenant filed counter denying the allegations in the petition. According to him, the need alleged is only a ruse for eviction. The petitioner is quite well off and so there is no necessity for him to start the proposed business. The petitioner has also other vacant buildings in his possession. The respondent is entitled to the benefit of the second proviso to Section 11(3). 4. PW1 was examined and Exts.A1 and A2 were marked on the side of the petitioner. RWs.1 and 2 were examined and Exts.B1 to B5 were marked on the side of the respondent. The report and plan of the advocate commissioner have been marked as Exts.C1 and C1(a) respectively. The 4 ## **R.C.R.No.211 of 2020** RCC on appreciation of the oral and documentary evidence, found the need to be _bona fide_ and hence allowed the R.C.P. under Section 11(3). R.C.A.No.9/2017 filed by the respondent-tenant against the order of the RCC, has been allowed finding the need to be not _bona fide_ . Aggrieved, the petitioner/landlord has come up in revision. 5. The only point that arises for consideration is, whether the findings of the RCC or the RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Adv.K.Dilip, the learned counsel for the revision petitioner and Adv.T.K.Ajith Kumar, the learned counsel for the respondent. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an appellate authority. The revisional authority has to satisfy itself of the legality, regularity or propriety of the order or proceedings of the appellate authority. It can interfere when the impugned order is illegal, irregular or improper. It is no doubt true that this Court sitting in revision, cannot convert itself into an evidence collecting or fact finding court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied on an irrelevant consideration, ignored valuable 5 ## **R.C.R.No.211 of 2020** items of evidence or applied wrong principles of law. As held by the Constitutional Bench in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, AIR 2014 SC 3708** _,_ a finding of fact recorded by the RCC or the RCAA if perverse, or has been arrived at without consideration of the material evidence or 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 is open to correction, because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the Act is entitled to set aside the impugned order as being not legal or proper. 8. The RCAA interfered with the finding of the RCC on the question of _bona fides_ of the need alleged on the ground that there is no discussion on the point by the RCC. However, the RCAA in turn has not given any reason(s) as to why it concluded that the need is not _bona fide_ . The discussion relating to the _bona fides_ of the need alleged is seen discussed in paragraphs 16 and 17 of the impugned judgment, the relevant portions of which read - “ _….......PW1 has specifically deposed that he needs to start a mobile sales and service center on an extensive basis. At the same time he admits the fact that the petition schedule shop room is too small to start such an extensive business. He has no case that he intends to_ 6 ## **R.C.R.No.211 of 2020** _utilise the other vacant rooms, which form part of the same building along_ _with the petition schedule shop room for this purpose._ ” Further in paragraph 17 it is stated thus - “ ….......... _On the other hand a scrutiny of the evidence tendered in this case would go to show that the need put forward by the respondent/ landlord is lacking in bonafides and is a mere ruse to evict the appellant tenant. Hence, I have no hesitation in holding that the respondent/landlord has not succeeded in proving the bonafides of the need put forward by him in the petition seeking eviction of the tenanted premises._ ” 8.1. The petitioner examined as PW1 has never admitted that the petition schedule shop room is too small to start an extensive business, as held by the RCAA. PW1 denied the suggestion put to him in the cross examination that the petition schedule room does not have the facility or that it is not convenient for starting a big mobile shop (പട�ക പ�ട�ക മറ� വല�യ ഒര mobile shop തടങ�ന സ�കര�മ�ല�ത മറ�യ�ണ� എന� പറഞ�ല ശര�യല). Therefore, the finding by the RCAA to the contrary is apparently wrong/incorrect. 9. Further, the RCAA found the petitioner to be in possession of other vacant rooms in the same building housing the petition schedule room. However, the respondent when examined as RW1 in his cross 7 ## **R.C.R.No.211 of 2020** examination admitted that the vacant rooms are available in the first floor and not in the ground floor. He also admitted that apart from the said vacant rooms in the first floor, the petitioner is not in possession of any other room(s). In the additional proof affidavit filed by the petitioner, he has offered the rooms on the first floor to the respondent in exchange for the petition schedule room. The respondent when examined as RW1 in his cross examination, was asked whether he was ready to shift his business to the first floor, to which he answered in the negative and deposed that the said rooms are not suitable for his business. Therefore it appears that the tenant wants the landlord to start his proposed business in rooms which even according to him are not suitable for conducting a business. The tenant certainly cannot dictate terms to the landlord or tell him as to where he is to start his business. As far as the protection under the second proviso to Section 11(3) of the Act is concerned, it has already been held by the RCAA that the respondent-tenant is not entitled to the same. The RCAA apparently has misread the evidence on record leading to an apparently wrong conclusion and hence interference into the same is called for. In the result, the RCR is allowed. The impugned judgment is set aside. The order of eviction passed by the RCC under Section 11(3) of the 8 ## **R.C.R.No.211 of 2020** Act is confirmed. The respondent shall vacate the building within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/