Noufal v. A.P. Asharaf

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **RCREV. NO. 163 OF 2021** **AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II), THALASSERY DATED 29.07.2021 IN RCA NO.47/2018 AS AGAINST THE ORDER IN RCP NO.2/2014 ON THE FILE OF THE RENT CONTROL COURT(MUNSIFF), THALASSERY DATED 23.09.2017** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** NOUFAL, AGED 52 YEARS, S/O. A.K. HAMZA, PARVEES STORES, ROOM NO. 45/1099, MAIN ROAD, THALASSERY, KANNUR DISTRICT. BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MUHAMMED SHAFI ## **RESPONDENT/APPELLANT/PETITIONER:** A.P. ASHARAF, S/O. T.M. MOIDU, AGED 67 YEARS, RESIDING AT FALAHI, VANIKAKAL ROAD, THANA P.O, KANNUR - 670 012. BY ADV T.P.SAJID. THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No. 163 of 2021 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.No. 163 of 2021** **------------------------------------------Dated this the 21[st ] day of November, 2022** ## **ORDER** ## **C.S.Sudha, J.** This Rent Control Revison under Section 20 of the Kerala Building (lease and Rent Control) Act, 1965, (the Act) has been filed against the judgment dated 29/07/2021 in R.C.A.No.47/2018 on the file of the Rent Control Appellate Authority (RCAA), Thalassery against the order dated 23/09/2017 in R.C.P.No.2/2014 on the file of the Rent Control Court (RCC), Thalassery. The revision petitioner-tenant is the respondent in the appeal as well as the respondent in the R.C.P. The respondent herein-the landlord, is the appellant in appeal and the petitioner in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. The R.C.P was filed seeking eviction under Section 11(2)(b) and 11(4) (ii) of the Act. According to the petitioner-landlord, the petition schedule room was let out to the respondent for a monthly rent of ₹1,500/-. The respondent has paid rent only up to February 2013 and has defaulted the payment of rent thereafter. The respondent has damaged the petition schedule building by altering and removing a portion of the wall of the building, without the knowledge and consent of the R.C.R.No. 163 of 2021 3 petitioner. As the respondent has damaged the building, the value and utility of the petition schedule building has been reduced materially and permanently. The respondent has no right to damage the building or make material alterations in the premises. Therefore, he has no right to continue in possession of the building. 3. The respondent filed counter denying the allegations in the R.C.P. According to him, the R.C.P. has been filed only because he did not accede to the demand of the petitioner for enhancing the rent to ₹3,000/- per month. The respondent denied the allegation that he has materially or permanently altered or removed a portion of the wall of the petition schedule building. According to the respondent, the building stands as such without any alteration for the past more than 100 years. He has not removed any portion of the wall as alleged by the petitioner. After taking possession of the building in the year 1998 till date, the respondent has not even removed a single stone in the building. There is also no arrears of rent as alleged in the petition. 4. PW1 was examined and Exts.A1 to A3 were marked on the side of the petitioner. RW1 was examined on the side of the respondent. Exts.C1 and C2 report and plan of the advocate commissioner have also been marked. The RCC finding no evidence to substantiate the case of the petitioner, dismissed the R.C.P. However, it allowed the ground for eviction sought under Section 11(2)(b) of the Act. The respondent-tenant took up the matter in appeal. The RCAA, reversed the order of the RCC and allowed eviction under Section 11(4)(ii) of the Act. Aggrieved, the R.C.R.No. 163 of 2021 4 respondent-tenant has come up in appeal. 5. Heard Sri.Abdul Raoof.P, the learned counsel for the petitioner and Sri. T.P.Sajid, the learned counsel for the respondent. 6. The only point that arises for consideration in this revision is whether there is any illegality, irregularity or impropriety in the findings of the courts below. 7. Section 20 of the Act says that, 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 the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and it may pass such order in reference thereto as it thinks fit. It is true that this Court under Section 20 is not expected to reappraise the evidence produced by the parties in exercise of its revisional jurisdiction and the limited question that falls for its consideration is whether the procedure followed by the RCC and the RCAA is illegal, irregular or improper. However, it is well settled that the powers of S.20 are wider than that is conferred under S.115 CPC. The nature and scope of the powers of revision under S.20 has been considered by the Apex Court in the decision in **Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 KHC 762: 2002 (6) SCC 1.** It has been held that when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Subject to limitations placed on the exercise of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a R.C.R.No. 163 of 2021 5 superior Court in a wider and larger sense. It has been further held that, a jurisdiction to examine the propriety of the order or decision carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. If any other view is taken, the expression "propriety" would lose its significance. It was further held in that- (i) There is no reason to read and interpret S.20 of the Act narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby. (ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to "any order" and / or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of the High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and justice demands. The Court can examine whether the findings rendered by the appellate authority are plausible and to consider that aspect, the Court can refer to the pleadings and evidence adduced by the parties. A pedantic approach cannot be made while examining the issue in the light of the requirement of the Act ( **Simon v. Rappai, 2008 (2) KHC 863** ). R.C.R.No. 163 of 2021 6 8. The schedule in the R.C.P. describes the tenanted premises as a shop room bearing no.45/1099 in Thalassery Municipality. Apart from a mere statement that a portion of wall of the tenanted premises has been removed, the R.C.P. does not specify the alteration or removal of wall that is alleged to have been done by the respondent. It is true as argued on behalf of the petitioner-landlord that meticulous analysis of pleadings should not be adopted, which if done, would lead to failure of justice. If taking the entire circumstances emerged in the case, if the court feels that no prejudice has been caused to the respondent-tenant on account of the pleadings of the petitioner, it would not be proper to deny the relief to the petitioner on the ground that there is no pleadings. It is also true that when the pleadings are being construed, a liberal approach is warranted, as otherwise there would be risk of justice becoming a causality. This however does not mean that proper pleadings are not necessary in a proceedings under the Act. There has to be some pleadings for the court to find out whether the ground for eviction alleged is made out. 9. We have already referred to the pleadings contained in the R.C.P. Ext.C1 commission report does not help the petitioner in any way. The advocate commissioner reports that she had not seen any signs of removal of the wall or alteration of wall in the petition schedule building. Further, as per the plan appended to Ext.C1 report, five rooms shown as A,B,C,D and E is described as the tenanted premises. The petitioner when examined as PW1, in his cross examination claimed R.C.R.No. 163 of 2021 7 that all the said rooms belong to him. However, the RCAA finds that the tenanted premises in this case is the portions shown as A,B and C in Ext.C2 plan. The impugned judgment further says that the portions shown as D and E in Ext.C2 belongs to another person, namely, Cheerapurath Aiysha, from whom the respondent herein has taken the said rooms also on rent. The petitioner has no such case. On the other hand, he claims title over all the five rooms, namely, the portions shown as A,B,C,D and E in Ext.C2 plan. True, openings are seen in the wall of all the rooms and it is possible to enter the portion marked as 'E', the northern most end of the rooms by passing through the portions shown as A,B,C and D. All the portions are seen connected to each other. Apart from the entrance from the road situated on the southern side into the premises, no other entrance has been shown to exist in Ext.C2 plan or has been reported by the advocate commissioner. Therefore, the entry to D and E also seems to be through A,B and C portions. The respondent-tenant asserts that he has not brought about any change in the premises. He also contends that the position has been the same right from the date of entrustment as well as before the entrustment. It is true as alleged by the petitioner, if the connecting wall between the rooms is cut open, it would certainly affect the utility and stability of the building. However, there is no evidence to substantiate the allegation that the respondent had removed any portion of the tenanted premises after the same was let out to him. Even if, quite a liberal interpretation is given to the pleadings in the R.C.P, combined with the evidence on record, a case under Section 11(4)(ii) of the Act is not made out. The R.C.R.No. 163 of 2021 8 burden is certainly on the petitioner to establish that a wall or portion of the wall has been removed by respondent resulting in the value and utility of the building being affected materially and permanently. Pleadings and evidence are lacking to substantiate the case of the petitioner. Therefore, the RCC was right in rejecting the ground for eviction sought under Section 11(4)(ii) of the Act. The RCAA erred in interfering with the finding of the RCC. In these circumstances, the Rent Control Revision is allowed and the impugned judgment of the RCAA is set aside and the order of the RCC dated 23/09/2017 in R.C.P.No.2/2014 is restored. Interlocutory applications, if any pending, shall stand closed. **Sd/P.B.SURESH KUMAR JUDGE** **Sd/C.S.SUDHA JUDGE** Jms/16.11