Kurunthaliyimmal Narayani and others v. Pothullathil Ayissa and Suhara (R.C.Rev.No.266 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 R.C.REV.NO. 266 OF 2016** **AGAINST THE JUDGMENT DATED 07.11.2015 IN R.C.A.NO.28 OF 2012 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I),THALASSERY AND THE ORDER DATED 26.08.2011 IN R.C.P.NO.90 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF), THALASSERY, KANNUR** ## **REVISION PETITIONERS:** - **1 KURUNTHALIYIMMAL NARAYANI, AGED 74 YEARS, W/O KRISHNADAS, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** **2 SATHEESAN AGED 59, S/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** - **3 MANI** **AGED 57 YEARS, S/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** - **4 SUDHA AGED 56, D/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** - **5 SUVARNA AGED 52, D/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** - **6 SUJAYA** - **AGED 47, D/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** - **7 SHIBU** - **AGED 44, S/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT.** 2 R.C.Rev.No.266 of 2016 **8 AMAR AGED 40, S/O.NARAYANI, KURUNTHALIYIMMAL, LALITHA PRINTING WORKS, CHOKLI, KANNUR DISTRICT. BY ADV SRI.K.I.SAGEER** ## **RESPONDENTS:** **1 POTHULLATHIL AYISSA AGED 64, D/O MAMMU HAJI, CHOKLI AMSOM, MENAPRAM DESOM, THALASSERY TALUK, KANNUR DISTRICT, PIN - 670 101.** **2 SUHARA, AGED 58 YEARS, POTHULLATHIL, CHOKLI AMSOM, MENAPRAM DESOM, THALASSERY TALUK, KANNUR DISTRICT, PIN -670 101.** **BY ADVS. SRI.C.KHALID SRI.T.P.SAJID SMT.SHIFA LATHEEF** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.266 of 2016 ## **O R D E R** ## Ajithkumar, J. The petitioners are the tenants. The respondentslandlords filed Rent Control Petition No.90 of 2010 before the Rent Control Court (Munsiff), Thalasery, seeking eviction of the petitioners under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered under Section 11(3) alone. The petitioners herein filed appeal before the Rent Control Appellate Authority (Additional District Judge-I), Thalassery as Rent Control Appeal No.28 of 2012. The appeal was dismissed as per judgment dated 7.11.2015 and hence this Rent Control Revision. 2. The respondents filed petition for eviction for the reasons that the petitioners defaulted rent since May, 1996 and that they require vacant possession of the building for the purpose of starting a supermarket by their dependents. Son of the 1[st] respondent, Jamsheer and son of the 2[nd] respondent, Sanoj wanted to start a supermarket. The petition schedule 4 R.C.Rev.No.266 of 2016 room along with the neighbouring rooms, after evicting the tenants therein, is intended to be used for the purpose of starting the supermarket. 3. The petitioners filed counter statement resisting the petition for eviction. They contended that the rent upto January 2010 was already paid and only because the respondents refused to receive, the rent thereafter fell is arrears. They contended that Jamsheer and Sanoj did not intend to start the business as proposed. The proposed need is only a ruse for eviction. Sri. Jamsheer is a mentally ill person. The petition schedule room is not at all suitable for such a business. They have other businesses and sources of income. The respondents are in vacant possession of other rooms also. The petitioners claimed the benefit of the second proviso to Section 11(3) as well. 4. The Rent Control Court disallowed the plea for eviction under Section 11(2)(b) of the Act and that order has not been appealed against. What survives now is the plea for eviction under Section 11(3) of the Act, on the ground of bonafide need. 5 R.C.Rev.No.266 of 2016 5. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 6. The learned counsel for the petitioners would contend that the bonafide need urged by the respondents is untenable for more than one reason. The respondents are affluent persons, having in their possession other rooms and their sons are already having employment and sources of income. PW1, the 2[nd] respondent and PW2, Sanoj, who along with Jamsheer proposed to start business, deposed in court regarding their intended business. PW2 admitted having a job now, but he wanted to start a business of his own. The petitioners raised a contention that Jamsheer had mental illness, and therefore, he was incompetent to join the business. PW1 and PW2 categorically denied the said allegation, but the petitioners did not adduce any reliable evidence in that regard. We express our anguish on it. That allegation certainly torments the person for no fault of his. No party to this kind of a litigation should raise such a wanton allegation, which they themselves are not sure about. 6 R.C.Rev.No.266 of 2016 Considering the entire evidence of PW1 and PW2 and the attending circumstances, the Rent Control Court arrived at the conclusion that the need put forward was genuine. 7. The contentions raised by the learned counsel for the petitioners are based on factual aspects alone; not only with respect to the bonafide need, but also regarding their claims under the first and second provisos to Section 11(3) of the Act. Both Rent Control Court and the Appellate Authority did not subscribe to those contentions. The learned counsel appearing for the petitioners would contend that finding on facts should have been in their favour, but both the Authorities below went wrong in appreciating the evidence. In the light of the concurrent findings of both the authorities on those aspects, we may consider how far under Section 20 of the Act we can delve into the matter. 8. 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 7 ## R.C.Rev.No.266 of 2016 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 sub-section (1) shall be at its discretion. 9. 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 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 8 ## R.C.Rev.No.266 of 2016 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. 10. 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 Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different 9 ## R.C.Rev.No.266 of 2016 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. 11. 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 re-appreciate 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 10 R.C.Rev.No.266 of 2016 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. 12. 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 11 ## R.C.Rev.No.266 of 2016 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. 13. 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. 14. In view of the above legal principles, it is not possible for us to re-appreciate the evidence, especially when the Appellate Authority, being the first appellate court, has 12 R.C.Rev.No.266 of 2016 considered and marshalled the entire evidence in great detail and confirmed the finding of the Rent Control Court. 15. Having considered all the aforesaid aspects, we are of the view 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, accordingly, dismiss it. 16. The learned counsel for the petitioners has made a request to afford six months' time for vacating the premises pointing out the difficulty in locating another room and making necessary arrangements for shifting the business. The learned counsel for the respondents is agreeable to grant five months’ time. 17. Having considered all the aspects, we deem it appropriate to grant five months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondents-tenants in the Rent Control Petition shall file an affidavit before the Rent Control Court 13 R.C.Rev.No.266 of 2016 within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule shop rooms to the petitionerslandlords within five months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop room and further that they 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 respondents-tenants 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 respondents-tenants 14 ## R.C.Rev.No.266 of 2016 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 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