MADATHIL PRADEEPAN v. KUNNOTH PARAMBATH CHATHUPERI SAMEERA

## **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 1[ST] DAY OF NOVEMBER 2021/ 10TH KARTHIKA, 1943** **R.C.REV. NO. 93 OF 2020 AGAINST JUDGMENT DATED 13.02.2020 IN R.C.A.62 OF 2018 OF THE RENT CONTROL COURT (ADDITIONAL DISTRICT JUDGE & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL),THALASSERY, KANNUR AND THE ORDER DATED 26.02.2018 IN R.C.P.NO.203 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF), THALASSERY, KANNUR** ## **REVISION PETITIONER:** **MADATHIL PRADEEPAN, AGED 50 YEARS S/O. KUNHIKANNAN, BUSINESS, RESIDING AT MADATHIL HOUSE, PANOOR AMSOM DESOM, P.O.PANOOR, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.K.P.HAREENDRAN SMT.N.SHAMNA** ## **RESPONDENT:** **KUNNOTH PARAMBATH CHATHUPERI SAMEERA, D/O. KIZHAKKAYIL CHOMBALAN KUNHAMI, W/O. REAFEEQ, AGED 41 YEARS, NO OCCUPATION, RESIDING AT PADINJHARE THAYYULLATHIL HOUSE, PANNOOR AMSOM, DESOM, P.O.PANOOR, THALASSERY TALUK, KANNUR DISTRICT,PIN-670 692.** **BY ADVS. SRI.U.K.DEVIDAS SRI.K.K.ANILRAJ** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev. No.93 of 2020 ## **O R D E R** ## Ajithkumar, J. The tenant is the revision petitioner. The respondent filed R.C.P.No.203 of 2015 before the Rent Control Court (Munsiff), Thalassery seeking eviction of the petitioner under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction under Sections 11(2)(b) and 11(3) of the Act. The petitioner challenged the order of eviction before the Rent Control Appellate Authority (Additional District Court-I), Thalassery by filing R.C.A.No.62 of 2018. The respondent filed R.C.A.No.80 of 2018 assailing the order rejecting the plea for eviction under Section 11(4)(i) of the Act. Both appeals failed. The petitioner came on revision challenging the judgment in R.C.A.No.62 of 2018. 2. The case of the respondent is that rent since January 2014 has been in arrears and the petitioner failed to make payment in spite of notice and, that she bonafide in need of the building for starting a business of her own. She 3 R.C.Rev. No.93 of 2020 wants to start a business in churidar materials and purdah articles in the petition shop room. She asserted that she was not in possession of any other building suitable to house such a business. Her further case was that that the appellant sublet the building but, she left the decision of the Appellate Authority refusing eviction on the ground of subletting as such and hence that ground does not survive. 3. The appellant filed counter statement contending that the grounds set out in the petition for eviction are false. He contended that he offered entire arrears of rent on receipt of lawyer's notice and as the respondent refused to receive, he could not make the payment in time. As regards the bonafide need, the appellant maintained that the respondent did not have any genuine need and she is incompetent to conduct any business. She is a person coming from an aristocratic family and now living away at Bangalore and, therefore she does not want to start such a business. It was further urged that the other buildings in her possession are sufficient to start the business, if at all, the respondent needs. The petitioner also 4 R.C.Rev. No.93 of 2020 claimed the benefit of the second proviso to Section 11(3) of the Act by contending that his main source for livelihood is the income he has been deriving from the textile business in the petition schedule shop room and that no other building is available in the locality for shifting his business. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 5. The petitioner assailed in the revision petition the eviction ordered by the Rent Control Court both under Sections 11(2)(b) and 11(3) of the Act and confirmed by the Appellate Authority. However, the learned counsel for the petitioner during arguments did not raise any serious contention in regard to the eviction ordered under Section 11(2)(b) of the Act. 6. Eviction on the ground of arrears of rent was claimed on the premises that payment of rent since January, 2014 has been defaulted and the petitioner refused to make payment in spite of receiving the Ext.A1(a) notice. Case of the petitioner was that he sent a demand draft for Rs.19,800/- 5 R.C.Rev. No.93 of 2020 which was the up-to-date rent, immediately after receiving the notice and as the respondent readily accepted the same she was ineligible to claim eviction under Section 11(2)(b) of the Act. 7. An order of eviction under Section 11(2)(b) will result if the tenant fails to pay or tender the rent together with interest and charges due from him in respect of the building within fifteen days of receipt of the notice. During cross-examination PW1, the landlady, admitted that she received and encashed the draft for Rs.19,800/-. The said amount covers the rent due upto the date of notice. It is however an undisputed fact that the interest and charges obliged to be paid by the petitioner remains unpaid. To that extent, the petitioner was in default. In view of that matter, the findings entered into by the authorities below that an order of eviction under Section 11(2)(b) of the Act was grantable, cannot be said to be illegal or perverse. Hence, there is no reason to interfere with that finding. 8. Coming to the bonafide need, the learned counsel 6 R.C.Rev. No.93 of 2020 for the petitioner would contend that the landlady hailing from an aristocratic family and now residing along with her husband at Bangalore has no competence or plan to start a business in churidar materials and purdah articles as she claimed. It is his contention that if at all she wanted to start a business, other vacant rooms are available in her possession. PW1 categorically stated that she has been residing along with her family and mother in the residential building situated adjacent to the petition schedule shop room and her husband alone is at Bangalore, engaged in a business. She asserted that she wanted to start the business to render assistance to her family, having her children grown up and that she has the capacity to do such a business. 9. In **Ameer and another v. M/s. B. Amoo and Brothers and others [2019 (4) KLT 476]** this Court considered what should be the extent of proof required to say the need put forth by the landlord is bonafide. It was held that a mere desire or wish evinced by a landlord would not amount to bona fide need, but the landlord must prove that he 7 R.C.Rev. No.93 of 2020 genuinely requires the accommodation for his own use or for the occupation of any member of his family dependent on him. The bona fide need must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting a tenant. It was further observed that the bona fide need being a state of mind, the landlord must place all the materials before the court to assess the genuineness and truthfulness of his claim for eviction. 10. Referring to the need put forward by the landlady, RW1, the tenant conceded that it was convenient for her to conduct such a business in the petition schedule shop room and that he did not have any apprehension that the landlady would not commence the business, if she obtained vacant possession of the room. Considering such evidence and the attending circumstances, the authorities below came to the conclusion that the need urged by the respondent was bona fide. In the light of the said legal proposition, we hold that the evidence justifies the findings of the Appellate Authority that the need of the respondent is bonafide and we do not find any 8 R.C.Rev. No.93 of 2020 reason to interfere with that finding. 11. As held by this Court in **Ashraf v. Shamnas [AIR 2020 NOC 485: 2020 KHC 3391]** only when it is established by the tenant that there are other suitable buildings in the possession of the landlord for the need projected, the burden to prove special reasons would be shifted to the landlord. 12. So the question is whether the petitioner was able to establish that there are other suitable shop rooms available in the possession of the landlord for the need projected by her. The contention set forth by the petitioner that the respondent has in her possession other vacant rooms, is not supported by any evidence. PW1 asserted that although she owns four rooms, none is vacant. In the absence of any evidence to the contrary, the finding of the courts below in favour of the respondent with reference to the first proviso to Section 11(3) stands sound and legal. 13. In relation to the plea based on the second proviso to Section 11(3) the learned counsel appearing for the petitioner argued that the Appellate Authority went totally 9 R.C.Rev. No.93 of 2020 wrong inasmuch as it gave over emphasis to the evidence of RW1 even where there was no sufficient pleading in the petition for eviction. During cross-examination, RW1 admitted that since 2013 he has been in Gulf countries most of the period each year. It is his admission that he was in Gulf countries for 10 months in 2013, 10 months in 2014, 8 months in 2015, 9 months in 2016 and 9 months in 2017. He also admitted that in his visa, it has been noted that he was a labourer. The said evidence is enough to find that the petitioner has been employed abroad. Even though he admitted that the day book, ledger, etc. with respect to the business in the petition scheduled shop room are being maintained, nothing has been produced before the court. Regarding the non-availability of other buildings suitable to shift the business of the petitioner also, no convincing evidence has been let in by the petitioner. As against the assertion of the landlady that there are other suitable rooms available in the locality, the version of the respondent was one of ignorance. In the light of the said evidence, the petitioner’s 10 R.C.Rev. No.93 of 2020 claim for the benefit on the second proviso to Section 11(3) was negatived by the Rent Control Court and Appellate Authority. 14. When the 2[nd] proviso to Section 11(3) of the Act imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the 2[nd] proviso, is insignificant and irrelevant. Even if the landlord failed to plead, the burden of proof will not be shifted to him, since the 2[nd] proviso to Section 11(3) of the Act is an exception to the principal provision. Observing so, this Court in **Ammeer Hamsa v. Ramabhadran and Another [2019 (2) KHC 465]** held that the burden of proof under the 2[nd] proviso is always on the tenant and unless the burden of proof under the 2[nd] proviso is discharged satisfactorily, the tenant is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. 15. We shall now consider how far this Court under its revisional jurisdiction can interfere with the impugned judgment. Section 20 of the Act deals with revision. As per 11 R.C.Rev. No.93 of 2020 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 in its discretion. ## 16. 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 Act came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated the entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot 12 ## R.C.Rev. No.93 of 2020 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. Even by the presence of the word ‘propriety’ it cannot mean that there could be a reappreciation 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. 17. 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 Act, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such a 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- 13 R.C.Rev. No.93 of 2020 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 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. 18. 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 14 R.C.Rev. No.93 of 2020 referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Act 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 reappreciate 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. 19. 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 reappreciated the evidence and the concurrent findings rendered by the courts below ought not to have been 15 R.C.Rev. No.93 of 2020 interfered with by the High Court while exercising revisional jurisdiction. 20. We are of the view that applying the principle of law as discussed above, the impugned judgment is not suffering from any illegality, irregularity or impropriety. Hence, this revision fails and is dismissed. 21. The learned counsel for the petitioner at this juncture requested to grant a period of one year for vacating the premises, pointing out the difficulty in view of the pandemic situation to find out a new room for shifting the textile business being conducted in the petition schedule shop room. We deem it appropriate to grant three months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, 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 16 R.C.Rev. No.93 of 2020 will surrender vacant possession of the petition schedule shop room to the petitioner-landlord within three 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 of the conditions stated above, the time limit granted by this order to surrender vacant possession of 17 ## R.C.Rev. No.93 of 2020 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