N.P. Abdul Khader v. T.P. Bhargavi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944 RCREV. NO. 18 OF 2020** **AGAINST THE JUDGMENT DATED 30.09.2019 IN RCA NO.55 OF 2017 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY,THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.16 OF 2016 DATED 15.12.2016 OF THE RENT CONTROL COURT, KUTHUPARAMBA** ## **REVISION PETITIONER/APPELLANT/RESPONDENT IN RCP/TENANT:** N.P.ABDUL KHADER, AGED 63 YEARS S/O.MAMMOOTTY, BUSINESS, KEEZHALLUR AMSOM, THERUR DESOM, P.O. EDAYANNUR, 670 595, THALASSERY TALUK, KANNUR DISTRICT. BY ADVS. R.SURENDRAN S.MAYUKHA ## **RESPONDENT/RESPONDENT/PETITIONER IN RCP/LANDLADY:** T.P.BHARGAVI W/O. RAVEENDRAN, HOUSEWIFE AMBADI, CANAL KARA, T.C. ROAD, PAZHASSI AMSOM, MATTANNUR DESOM, P.O. MATTANNUR, IRITTY TALUK, KANNUR DISTRICT 670 702. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No.18 of 2020 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.No.18 of 2020** **------------------------------------------Dated this the 2[nd] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This Rent Control Revision under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 30/09/2019 in R.C.A.No.55 of 2017 on the file of the Rent Control Appellate Authority (RCAA), Thalassery against the order dated 15/12/2016 in R.C.P.No.16/2016 on the file of the Rent Control Court (RCC), Kuthuparamba. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.16/2016 was filed by the petitioner-landlady claiming eviction under Section 11(3) of the Act. According to the petitioner, the building housing the petition schedule room originally belonged to her husband, who leased out the same on the basis of an oral agreement on 15/05/1990 for a monthly rent of ₹500/- to the respondent. Thereafter, the petitioner's husband transferred the property to her. The petition schedule building consists of four rooms including the petition schedule room. After the property was transferred in favour of the petitioner, the R.C.R.No.18 of 2020 3 respondent has attorned to the petitioner and has also paid rent. The rent that was originally fixed has been revised to ₹2500/- per month. The respondent has paid rent till November 2015. The two daughters of the petitioner have been married off and they are settled at different places. The petitioner has no avocation of her own and therefore, she has decided to start a fancy shop in the petition schedule room in order to augment the income of her family. She is not in possession of any vacant room. Out of the four rooms in the petition schedule building, the room adjacent to the petition schedule room is presently in the occupation of the petitioner's husband, where he is conducting a retail business in electrical items. The remaining two rooms are in possession of two other tenants. The respondent who is conducting a grocery business in the schedule room, is not entitled to the benefit of second proviso to Section 11(3) of the Act. 3. The respondent filed counter denying the need alleged. According to him, the need is not _bona fide_ and it is a mere ruse for eviction. The petitioner has several vacant rooms in her possession. The respondent is entitled to the benefit of the second proviso to Section 11(3) of the Act. 4. PW1 was examined and Exts.A1 and A2 were marked on the side of the petitioner. No oral evidence was adduced on behalf of the respondent. Exts.B1 series and B2 have been marked on the side of the respondent. On an appreciation of the oral and documentary evidence, the RCC found the need to be _bona fide_ and R.C.R.No.18 of 2020 4 hence granted eviction under Section 11(3) of the Act. The order of the RCC has been confirmed in R.C.A.No.55/2017. This revision by the respondent-tenant is against the concurrent findings of the RCC and the RCAA. 5. The only point that arises for consideration is whether the concurrent findings of the RCC and RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Sri. R.Surendran, the learned counsel for the revision petitioner and Sri. K.V.Pavithran, the learned counsel for the respondent. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an appellate authority. The revisional court can interfere when the RCC and RCAA have relied on irrelevant consideration, ignored valuable items of evidence or apply wrong principles of law. Interference is also possible when the view that is taken by the RCC or the RCAA is perverse or when the statutory scheme has not been kept in mind. If the approach made by the authorities is perverse, then this Court in exercise of its jurisdiction under Section 20 can certainly look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the basis of the pleadings on record. It is no doubt true that this Court sitting in revision cannot convert itself into an evidence collecting or fact finding court. As held by the Constitution Bench in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, AIR 2014 SC 3708** _,_ a finding of fact recorded by the RCC or the RCAA if perverse, R.C.R.No.18 of 2020 5 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. In the case on hand, the respondent-tenant challenges the _bona fides_ of the need alleged on three grounds, namely,- (i) the petitioner is an old lady aged 60 years and therefore, it is highly improbable for her to start the proposed business; (ii) a room which was evicted earlier citing _bona fide_ need was thereafter sold to a third party and (iii) the petitioner's husband is in possession of about seven vacant rooms in a building situated just 30 mtrs away from the petition schedule building housing the tenanted premises. We will consider the aforesaid grounds one by one. 9. As far as the first ground raised is concerned, the relevant pleadings in paragraph 2 and 3 of the counter reads – “ _2._ ......S _he is a housewife never involved so far in any avocation or business. She is aged 50 years, going by the cause title of the R.C.P. and she is a lady hailing from an aristocratic family with traditional orthodoxy. She never entertained any idea to start a fancy shop or any other_ R.C.R.No.18 of 2020 6 _business so far_ ....”. “ _3. The allegation in the petition that the petitioner is idling at her house for want of avocation is not correct. She is a full time housewife with housewifely manners, doing house keeping and taking care of all domestic affairs. Her husband is busily engaged in business and he is not a househusband.......”_ . There is no law which prescribes an age limit for starting a business. Any enterprising person has the freedom to start a business of his choice for which age is no bar. It is less said the better regarding the contention of the improbability of the petitioner starting the proposed business for the reasons stated in the counter. Therefore, the first ground raised against the _bona fides_ of the need alleged is only to be rejected. 9.1. As far as the second ground is concerned, the petitioner examined as PW1 admits that a room in the possession of a tenant was got vacated on the ground of own occupation and thereafter it was assigned to a third party. In the cross examination, PW1 has a case that the said shop was sold due to financial stringency. However, no evidence has been let in to substantiate the same. During the course of arguments, it was submitted on behalf of the petitioner that the aforesaid room was got vacated not for the petitioner's need but for the need of her son-in-law. There is no such case for the petitioner either in the R.C.P. or in the box. Therefore, the fact remains that after obtaining vacant possession of a room alleging the need for own occupation, the same was assigned to a third party. We will assume for a moment that R.C.R.No.18 of 2020 7 the said room was sold due to financial stringency, though no evidence has been let in by the petitioner to substantiate the same. 9.2. Coming to the third ground of attack, that is, the petitioner's husband is in possession of vacant rooms in a building situated about 30 mtrs away from the tenanted premises. PW1 admits that a three storied building belonging to her husband is situated about 30 mtrs away from the petition schedule building and that there are seven rooms vacant in the said building and that too in the ground floor. It is true that the said rooms do not belong to the petitioner and therefore, the first proviso to Section 11(3) is not attracted. However, this aspect was pointed out to show that had the need projected been _bona fide_ , the petitioner would certainly have started the business therein. It is true that it is not for the tenant to dictate terms as to where the petitioner landlord/landlady is to start the proposed business. However, when it is shown that there are seven rooms belonging to the husband of the petitioner lying vacant quite near the tenanted premises, though the first proviso is not attracted, the same certainly tells upon the _bona fides_ of the petitioner, as no reasons whatsoever have been given for not utilising the same. This is especially so when it has also been brought in that a room which was got vacated claiming own occupation was sold off by the petitioner. This aspect affecting the _bona fides_ of the petitioner, has not been correctly appreciated either by the RCC or the RCAA. There appears to have been a misreading of the evidence on record warranting an R.C.R.No.18 of 2020 8 interference under Section 20 of the Act and hence we do so. In the result, the rent control revision is allowed and the impugned judgment is set aside. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms/29.11