N.P.K. Abdul Salam v. Mottammal PuthiyaPurayil Abdul Saleem

**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.159 OF 2021** **AGAINST THE JUDGMENT DATED 13.08.2020 IN RCA NO.57 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY AND THE ORDER DATED 27.02.2019 IN RCP NO.127 OF 2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **N.P.K.ABDUL SALAM, AGED 47 YEARS, S/O. K.P.MAMMU, RESIDING AT 'RASHIDA MANZIL', KOLAPPA, PATTANUR P.O., PATTANUR AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.E.MOHAMMED SHAFI SMT.VIDYA M.K.** ## **RESPONDENT:** ## **MOTTAMMAL PUTHIYAPURAYIL ABDUL SALEEM** **AGED 51 YEARS, S/O. KAMAL, RESIDING AT SHAMIS, KOLAPPA, PATTANUR P.O., PATTANUR AMSOM DESOM, THALASSERY TALUK, KANNUR-670602.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No. 159 of 2021 ## **O R D E R** ## Ajithkumar, J. This Rent Control Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is filed by the respondent in Rent Control Petition No.127 of 2018 on the file of the Rent Control Court (Principal Munsiff), Kannur. The R.C.P. was for eviction under Section 11(3) of the Act. It was allowed. The appeal filed by the petitioner as Rent Control Appeal No.57 of 2019 was dismissed by the Rent Control Appellate Authority (District Judge), Thalassery. Hence the revision. 2. The petition for eviction was filed on the ground that the respondent, who has been conducting a furniture business in Saudi Arabia, is compelled to come home due to the localisation policy in that country, and therefore, he wanted to start a furniture shop making use of the petition schedule shop room and other adjoining rooms, which are already in his possession. 3. The petitioner filed objection challenging the 3 R.C.Rev.No. 159 of 2021 bonafide need urged by the respondent. It was contended that the respondent has no idea to come back to India in any immediate future and his attempt is only to evict the petitioner somehow. The petitioner is conducting a grocery shop in the petition schedule shop room, which is the only source of income for his livelihood. He would further contend that no other convenient room is available in the locality to shift his business. 4. The Rent Control Court, after considering the evidence on record; oral evidence of PW1 and RW1 and Exts.A1, A1(a), B1 to B4(a) and Ext.C1 ordered eviction finding that the need projected by the respondent is genuine and bonafide. The contentions raised under the first and second proviso to Section 11(3) were repelled. The Appellate Authority re-appreciated the evidence and after detailed consideration confirmed the order of the Rent Control Court. 5. When the case has come up for admission today, we heard the learned counsel appearing for the petitioner in detail. 4 R.C.Rev.No. 159 of 2021 6. The learned counsel appearing for the petitioner would submit that the history of the case belies the bonafides of the respondent in claiming eviction on the ground of own occupation. It is contended that on an earlier occasion, the respondent issued a notice, Ext.B1, demanding vacant possession of the petition schedule shop room saying that his brother in law wanted to start a business. The respondent did not pursue further that matter, but he tried to forcibly evict the petitioner. The petitioner, therefore, was constrained to file a suit for injunction for restraining the respondent from forcibly evicting him from the petition schedule shop room. It was in the said background the present eviction petition was filed and the sole object behind it is to see that the petitioner is evicted somehow. 7. Ext.B1 was issued in 2014. The petitioner admits that action for evicting him was not pursued further by the respondent. The suit was filed in the year 2016. Ext.B4 is the decree in O.S.No.371 of 2016 of the Principal Munsiff's Court, Kannur. Ext.B4(a) is the judgment in that suit. Those previous 5 R.C.Rev.No. 159 of 2021 incidents by themselves cannot be reasons for doubting the bonafides of the respondent; provided he is able to convince the court that he genuinely requires the building for his own purpose. 8. In **Basheer M. v. Remani Gopalan and another [2014 (1) KHC 436]** the contention raised by the tenant was that earlier the demised premises was occupied by another tenant and he was evicted by filing a petition for eviction and hence, there is no bonafides in again seeking eviction for own occupation. This Court held that merely because on an earlier occasion an eviction petition was filed, the plea for eviction under Section 11(3) of the Act in view of the change of circumstances would not be affected. 9. PW1 categorically deposed before the court with respect to his proposal to start a furniture business in the petition schedule shop room. He intends to make use of the petition schedule room and the adjoining rooms, which belong to him and are lying vacant now. When he states that he has decided to come back from Saudi Arabia essentially, owing to 6 R.C.Rev.No. 159 of 2021 the reason that he would not be able to continue there due to the localisation policy of the Government of Saudi Arabia, there need not be any reason to reject that version. The petitioner did not deny the fact that the respondent, at present, has been doing furniture business in Saudi Arabia. With that experience, he wanted to start the business in his own building. His capacity to conduct such a business cannot be doubted. Considering the said evidence, the authorities below concluded that the need urged by the respondent is bonafide. 10. There is no evidence to show that any room other than those in the building to which the petition schedule building forms part is available in the possession of the respondent. It has come out in evidence that rooms are available to avail on rent in the vicinity of the petition schedule shop room itself. Taking into account that evidence, it was held by the Appellate Authority that the petitioner is not entitled to get the benefit of the first or second provisos to Section 11(3) of the Act. 7 R.C.Rev.No. 159 of 2021 11. 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 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. 12. 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, 8 R.C.Rev.No. 159 of 2021 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 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. 13. 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 9 R.C.Rev.No. 159 of 2021 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 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. 14. 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 reappreciate the evidence and substitute its own finding 10 R.C.Rev.No. 159 of 2021 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. 15. 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** 11 R.C.Rev.No. 159 of 2021 **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 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. 16. 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 12 R.C.Rev.No. 159 of 2021 the High Court while exercising revisional jurisdiction. 17. 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 considered and marshalled the entire evidence in great detail and confirmed the finding of the Rent Control Court. 18. 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. 19. The learned counsel for the petitioner has made a request to afford nine months time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. 20. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: 13 ## R.C.Rev.No. 159 of 2021 (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 will surrender vacant possession of the petition schedule shop room to the petitioners-landlord within six 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; 14 ## R.C.Rev.No. 159 of 2021 - (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 the petition schedule shop room will stand cancelled automatically and the petitioners-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