Moossa Kombu Kulangara v. Rohini Kallankandiyil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 17[TH] DAY OF JANUARY 2023 / 27TH POUSHA, 1944** **RCREV. NO. 92 OF 2020** **AGAINST THE JUDGMENT DATED 28/02/2020 IN RCA NO.9/2018 OF RENT CONTROL APPELLATE AUTHORITY, VATAKARA AGAINST THE ORDER DATED 07/07/2017 IN RCP NO.84/2016 OF RENT CONTROL COURT, VATAKARA** ## **REVISION PETITIONER:** **MOOSSA KOMBU KULANGARA, AGED 69 YEARS, S/O.ABDURAHIMAN, KUNNOTH THAZHA KUNIYIL, KARTHIKAPPALLI AMSOM, KURINHALIYODE DESOM, VATAKARA TALUK, KOZHIKODE-673 542.** **BY ADVS. P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **RESPONDENT:** **ROHINI KALLANKANDIYIL, AGED 45 YEARS, D/O.GOPALAN, KANDOTH MEETHAL HOUSE, VILLIAPPALLI AMSOM, MAYYANNUR DESOM, VATAKARA TALUK, MAYYANNUR P.O., KOZHIKODE-673 107.** **BY ADVS. SRI.U.K.DEVIDAS SRI.K.K.ANILRAJ** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING** **ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.C.R.No.92 of 2020** **2** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.92 of 2020** **------------------------------------------Dated this the 17[th] day of January, 2023** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 28/02/2020 in R.C.A.No.9/2018 on the file of the Rent Control Appellate Authority (RCAA), Vatakara, which appeal is against the order dated 07/07/2017 in R.C.P. No.84/2016 on the file of the Rent Control Court (RCC), Vatakara. The revision petitioner 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 the documents will be referred to as described in the R.C.Ps. 2. R.C.P.No.84/2016 was filed by the petitioner-landlord seeking eviction under Section 11(3) of the Act. According to the petitioner, he intends to start a stationery shop in the petition schedule room, which has been let out to the respondent. Hence he _bona fide_ requires the premises for his own use. It is also alleged that the respondent is not entitled to the benefit of the second proviso to Section 11(3). **R.C.R.No.92 of 2020** **3** 3. The respondent-tenant entered appearance and filed counter denying the need alleged and contended that it is a mere ruse for eviction. In order to evict him and let it out to others for higher rent. The respondent also claim the benefit of the second proviso to Section 11(3) of the Act. 4. PW1 was examined and Exts. A1 to A4 were marked on the side of the petitioner. RW1 and 2 were examined and Exts. B1 to B4(a) were marked on the side of the respondent. The commission report has been marked as Ext.C1. The RCC, on an appreciation of the oral and documentary evidence and after hearing both the parties, allowed the R.C.P. under Section 11(3) of the Act. In R.C.A.No.9/2018 filed by the tenant, the benefit of the first proviso has been found in favour of the tenant. So finding, the appeal has been allowed and the order of the RCC reversed. Aggrieved, the petitioner-landlord has come up in revision. 5. Heard Sri. P.B. Krishnan, the learned counsel for revision petitioner and Sri. K.K. Anil Raj, the learned counsel for the respondent. 6. The only point that arises for consideration is, whether the findings of the RCC or the RCAA suffer from any illegality, irregularity or impropriety. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of the **R.C.R.No.92 of 2020** **4** Appellate Authority. It is no doubt true that this Court sitting in revision cannot convert itself in to 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 an irrelevant consideration, ignored valuable items of evidence or applied wrong principles of law. As held by a Constitution Bench of the Apex Court in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 SCC 78** , 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. The High Court is entitled to satisfy itself of the correctness or legality or propriety of any decision or order impugned before it. 8. The finding of the RCC that the need alleged is _bona fide_ has been confirmed by the RCAA also. However, the RCAA on a reappreciation of evidence concluded that the petitioner is in possession of two vacant rooms, for which no special reasons have been shown and hence found that the petitioner cannot be granted an order of eviction. We **R.C.R.No.92 of 2020** **5** are called upon to decide the correctness of this finding alone in this revision. The first proviso to Section 11(3) says that the RCC shall not order the tenant to vacate the premises or order eviction, if the landlord had another building of his own in his possession in the same city, town or village, except if the court is satisfied that for special reasons, in any particular case it would be just and proper to do so. Ext.A1 rent deed dated 11/05/2009 shows that two rooms, that is, rooms bearing Nos.EP/XI 523 and 524 were let out to the respondent. In Ext.A4 lawyer notice dated 22/07/2016 also, the petitioner seeks vacant possession of the aforesaid two rooms let out to the respondents. It is admitted that one of the rooms in the possession of the tenant was surrendered to the landlord. The landlord when examined as PW1 deposed that the tenant had surrendered one room not because he had demanded the same, on the other hand, it was surrendered saying that she no longer requires the same. Whether the tenant had voluntarily surrendered or surrendered on demand of the landlord, the fact remains that the room was surrendered by the tenant. This obviously must have been before the filing of the R.C.P. because the schedule to the R.C.P. refers to only one room, that is, room bearing No.EP/XI 523, which is sought to be evicted. 9. In the R.C.P., the relevant pleadings are contained in paragraphs 5 and 8. In paragraph No.5 it is stated that the petitioner **R.C.R.No.92 of 2020** **6** intends to start a provision store in the petition schedule room and in the adjoining rooms. In paragraph No.8 it is stated that he intends to use the petition schedule room and a small room situated adjacent to the petition schedule room. Admittedly, the building housing the tenanted premises has three rooms in total. A reading of Ext.A1 shows that the rooms let out to the respondent are situated on the northern side of the building. If that be so, the small room bearing no number must be the room on the southern end. Therefore, it cannot be the middle room but the room on the extreme southern end of the building. From a reading of Ext.A4 notice as well as paragraphs 5 & 8 in the R.C.P., the case put forward by the petitioner appears to be that the petitioner intends to start the business in all the three rooms in the building. The petitioner when examined as PW1 deposed that apart from the petition schedule room and the room surrendered by the tenant, there is one another room, which bears no number. According to him, he stores fire wood in this room and therefore in effect there are only two rooms in the building. PW1 was further asked whether the said room situated on the southern end was lying vacant when the R.C.P. was filed, to which he replied that the said room had never been rented out at any point of time. To a question as to why he had not referred to the said room in the R.C.P, PW1 replied that the said room is used as a room for storing fire wood and hence he did not mention the same in the **R.C.R.No.92 of 2020** **7** R.C.P. On further questioning he deposed that he had never made an effort to get a number allotted for the said room. According to him, the said room was made for dumping waste. This part of the evidence or testimony of PW1 has not been discredited in any way. Not even a suggestion is seen put to PW1 on behalf of the tenant that the said room, purportedly used for storing fire wood, is more than sufficient or for that matter sufficient or suitable for the need proposed. When the landlord deposed that the same is being used as room for storing fire wood, the tenant seems to have left it at that without any further challenge. However, according to RCAA, this room along with the room surrendered by the tenant is more than sufficient for the proposed need and as no special reasons have been shown eviction cannot be granted. We are afraid, we cannot agree to this conclusion of the RCAA. 10. It is true that PW1 when asked about the exact plinth area he requires for the business, answered that he is unaware of the same. However, he added that he knows that two rooms are required for the proposed need. It is pertinent to note that the respondent-tenant neither in his counter nor in the box has a case that the landlord is in possession of two rooms suitable for his business. In the counter, the only contention is that there are three rooms in the building including the petition schedule room. Out of the remaining two rooms one room is lying vacant. **R.C.R.No.92 of 2020** **8** Therefore, even the tenant has no case that the third room is suitable for the proposed need. It is true that in Ext.A4 lawyer notice, the landlord says that the third room also if necessary can be used for the proposed business. This aspect has also not been challenged by the tenant. It is upto the landlord to decide which all rooms are to be used for the proposed need. Therefore, the RCAA is seen to have developed a case which even the tenant does not have. The RCAA, apparently is seen to have misread the pleadings and evidence on record resulting in an incorrect conclusion. The RCC on a proper appreciation of the oral and documentary evidence, had arrived at the right decision, which is in tune with the precedents on the subject. 11. It was argued on behalf of the tenant, that the RCAA has omitted or failed to consider the correctness of the finding of the RCC on the point as to whether the tenant is entitled to the benefit of the second proviso to Section 11(3) of the Act, though the same had also been challenged by the tenant in the appeal. We went through the order of the RCC. The discussion on the question whether the tenant is entitled to the benefit of the proviso is seen dealt with in paragraphs 12 to 15 of the order of the RCC. The RCC has considered the contention of the tenant on the point and on a correct appreciation of the evidence on record has rightly concluded that the tenant is not entitled to the benefit of the said **R.C.R.No.92 of 2020** **9** proviso. We do not find any infirmity, irregularity or impropriety in the said finding too. In the result, the rent control revision is allowed. The impugned judgment in R.C.A.No.9/2018 is set aside and the order of the RCC granting eviction under Section 11(3) of the Act is restored. The respondent is directed to vacate the tenanted premises 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** ak