Koraprath Pazhakara Kasim v. Kuppayya Rajan

## **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 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **R.C.REV. NO. 112 OF 2021** **AGAINST THE JUDGMENT DATED 26.03.2021 IN R.C.A.NO.39 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERI AND THE ORDER DATED 16.12.2015 IN R.C.P.NO.5 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF), KUTHUPARAMBA** ## **REVISION PETITIONER:** **KORAPRATH PAZHAKARA KASIM** **AGED 61 YEARS, S/O.PAKKU, NATIONAL STORES, (INFRONT OF SHYLA TALKIES KUTHUPARAMBA), KANNUR ROAD, P.O.KUTHUPARAMBA, THALASSERY, PIN-670 643.** **BY ADVS. K.V.PAVITHRAN JITHIN S.SUNDARAN** ## **RESPONDENT:** ## **KUPPAYYA RAJAN** **AGED 66 YEARS, S/O.CHINNAN, RESIDING AT MALAVYAM, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA, THALASSERY TALUK, PIN-670 643.** **BY ADV CIBI THOMAS** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.112 of 2021 ## **O R D E R** ## Ajithkumar, J. Rent Control Petition No.5 of 2014 was filed by the respondent-landlord before the Rent Control Court (Munsiff), Kuthuparamba seeking eviction of the petitioner-tenant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The R.C.P was allowed in part ordering eviction under Section 11(3) of the Act as per order dated 16.12.2015. The petitioner filed an appeal under Section 18(1)(b) of the Act as R.C.A.No.39 of 2016. The Appellate Authority dismissed the appeal. Feeling aggrieved thereof, the petitioner has filed this revision petition invoking the jurisdiction of this Court under Section 20 of the Act. 2. The respondent contended in the rent control petition that rent from 2010 onwards was kept in arrears by the petitioner and the respondent, who retired from service in 2011, wanted to start a stationery business in the petition schedule shop room. Accordingly, the respondent sought eviction on the grounds of arrears of rent and bonafide need. 3 R.C.Rev.No.112 of 2021 3. The petitioner resisted the eviction petition by contending that rent was not in arrears and that the need set forth by the respondent was not bonafide, as he has no intention to start any business. But the need urged is only a ruse for eviction. The respondent claimed rent at an exorbitant rate and as the petitioner did not oblige, and that is the reason why the eviction proceedings was initiated. The petitioner also claimed benefits of the first and second provisos to Section 11(3) of the Act. 4. The respondent entered appearance. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the petitioner would contend that a building belonging to the respondent, which is situated on the backside of the petition schedule shop room, was got vacated during the pendency of the proceedings, and the respondent can use that building for his proposed business in stationery articles. There is no valid explanation for not using that building and that not only belies the bonafides of the 4 R.C.Rev.No.112 of 2021 respondent but also disentitles him from claiming eviction in view of the provisions of the first proviso to Section 11(3) of the Act. 6. It is true, if the landlord obtained vacant possession of another building during the pendency of the proceedings also, despite it being a subsequent event, the tenant may be able to claim protection under the first proviso to Section 11(3) of the Act; provided that building is sufficient and suitable for the purpose of the landlord. If vacancy of such a building has come in evidence, the landlord has an obligation to offer explanation for not occupying the said building. In this case, the building that was got vacated is a residential one. PW1 explained before court that the said building was situated on a higher level and not convenient for conducting any business. The petitioner while giving evidence as RW1 admitted that the said building was a residential one. The proposed business is on stationery articles. The petitioner is now conducting the very same business in the petition schedule shop room. When the respondent says that he wants the petition schedule shop room to conduct a stationery 5 R.C.Rev.No.112 of 2021 business, which indisputably is suitable for such a business in preference to the other residential building, the tenant cannot insist that the landlord should opt the residential building for his business. A business is conducted for generating profit. If a stationery business is accommodated in a residential building having not enough public visibility, it cannot be expected that the business would be a success. In the said circumstances, we are of the view that the need urged by the respondent that he need the petition schedule building in order to start a stationery business is bonafide. We also hold that obtaining of vacant possession of such a building does not fail his plea for eviction of the petitioner from the petition schedule shop room. 7. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to 6 R.C.Rev.No.112 of 2021 carry on such trade or business. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 8. PW1 deposed in court regarding availability of other vacant shop rooms in the locality. Exts.A5 to A7 are the copies of extract from the register of building tax assessment maintained in the Koothuparamba Municipality. Vacancy of a few shop rooms are noted in the said documents. The evidence let in by the petitioner is not at all satisfactory so as to reach a finding that no suitable buildings for shifting his business is available in the locality. The Appellate Authority after referring to the principle laid down in the aforesaid decision and the evidence on record found that even on finding that the petitioner can depend on the income derived from the business in the petition schedule shop room alone 7 R.C.Rev.No.112 of 2021 for eking out his livelihood, he is not entitled to the protection of the second proviso to Section 11(3) of the Act. 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 8 R.C.Rev.No.112 of 2021 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 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 9 R.C.Rev.No.112 of 2021 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. 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 10 R.C.Rev.No.112 of 2021 **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 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 R.C.Rev.No.112 of 2021 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 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 12 R.C.Rev.No.112 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. 15. In the light of the aforesaid principle of law, We find no reason to interfere with the findings in the judgement of the Appellate Authority dated 26.3.2021 or the order of the Rent Control Court dated 16.12.2015, in exercise of the powers under Section 20 of the Act. It is not suffering from any illegality, irregularity or impropriety. Therefore, we hold that the Rent Control Revision can only fail. It is accordingly dismissed. 16. The learned counsel for the petitioners has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting the business. The learned 13 R.C.Rev.No.112 of 2021 counsel for the respondent is agreeable to grant four months’ time. 17. 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 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 14 R.C.Rev.No.112 of 2021 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 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