Parakulangary Baby v. Ozhukkal Madathile Valappil Rasiya

1 R.C.Rev.No.23 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ``` R.C.REV.NO.23OF 2024 ``` ``` ORDER DATED 30.11.2019 IN R.C.P.NO.67 OF 2014 OF MUNSIFF COURT, THALIPARAMBA CONCURRING WITH THE COMMON JUDGMENT DATED 07.11.2023 IN R.C.A.NO.22 OF 2020 OF ADDITIONAL DISTRICT COURT - II, THALASSERY REVISION PETITIONER/APPELLANT/RESPONDENT: ``` ``` PARAKULANGARY BABY AGED 67 YEARS S/O.MATHEW, PARAKULANGARA HOUSE, TALIPARAMBA P.O., TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670141 ``` ``` BY ADVS. V.T.MADHAVANUNNI V.A.SATHEESH ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` OZHUKKAL MADATHILE VALAPPIL RASIYA, ``` ``` AGED 48 YEARS D/O ABDUL HAMEED HAJI, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA P.O, KANNUR DISTRICT, PIN - 670141 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.Rev.No.23 of 2024 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.67 of 2014 on the file of the Rent Control Court (Munsiff), Thaliparamba, which was one filed by the respondent herein-landlady under Sections 11(2)(b), 11(3), 11(4)(ii), 11(4)(iii) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. Before the Rent Control Court, the tenant entered appearance and filed counter opposing the order of eviction sought for. On the side of the landlord, PWs1 to 3 were examined and Exts.A1 to A18 were marked. On the side of the tenant, he was examined as RW1 and Exts.B1 to B12 were marked. Exts.C1 and C1(a) are the report and plan of the Advocate Commissioner. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the son of the landlady, who was examined as PW3, for starting a stationary shop in the petition schedule building. After considering the pleadings and evidence on record, the Rent Control Court granted an order of eviction under Sections 11(2)(b) and 11(3) of the Act, on a finding that the tenant has kept the rent of the petition schedule building in arrears, 3 R.C.Rev.No.23 of 2024 that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide, that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case and the tenant is not entitled to get the protection under the second proviso to Section 11(3) of the Act. Accordingly, R.C.P.No.67 of 2014 was allowed under Sections 11(2)(b) and 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule building to the landlady, within the time limit specified in that order. It was made clear that the order of eviction under Section 11(2)(b) of the Act will be subject to the conditions provided in Section 11(2)(c). The order of eviction sought for under Sections 11(4)(ii), 11(4)(iii) and 11(4)(ii) were disallowed. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.22 of 2022 before the Rent Control Appellate Authority (Additional District Judge – II), Thalassery, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 07.11.2023, thereby confirming the order of eviction granted by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act. Feeling aggrieved, the petitionertenant is before this Court in this Rent Control Revision, invoking 4 R.C.Rev.No.23 of 2024 the provisions under Section 20 of the Act. 2. Heard the learned counsel for the petitioner-tenant. 3. The learned counsel for the petitioner-tenant would contend that the finding of the Rent Control Court that the tenant has defaulted payment of arrears of rent and that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide and that the landlord is entitled to an order of eviction under Section 11(2)(b) and 11(3) of the Act are perverse and patently illegal, which warrants interference in this Rent Control Revision. 4. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an 5 ## R.C.Rev.No.23 of 2024 order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the first proviso to Section 11(2)(b), an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order. ## 5. In **Ouseph Mathai v. Abdul Khader [(2002) 1 SCC** **319]** the Apex Court noticed that the Kerala Buildings (Lease and Rent Control) Act is a social welfare legislation meant to protect and safeguard the interests of the tenants but it does not confer 6 R.C.Rev.No.23 of 2024 unfettered powers on the tenants to remain in possession of the leased premises notwithstanding the compliance with directions of the court or the provisions of the statute. The Act is intended to protect the interests of bona fide tenants in possession. The Act has put restrictions on the right of the landlord to seek eviction of the tenant on the ground of defaults in the payment of rent which are regulated by Section 11(2). A tenant is under an obligation to pay or tender the rent in respect of the building under his occupation within 15 days after the expiry of time fixed in the agreement of tenancy or in the absence of such agreement by the last day of next month falling for which the rent is payable. Nonpayment of rent, as per contract and statutory provisions, entitles the landlord to seek possession only after compliance of sending a registered notice to tenants intimating the default. If after the receipt of such a notice a genuine tenant pays or tenders the rent together with interest at 6% per annum and postal charges, the right accrued to the landlord to get possession on this ground is defeated. Even after passing of the eviction order, a further right is conferred upon tenant in terms of Section 11(2)(c) of the Act. It is only such tenant who defaults to pay the rent at all the three relevant times, the law requires him to be dispossessed. 7 ## R.C.Rev.No.23 of 2024 6. Before the Rent Control Court the tenant has not chosen to adduce any reliable evidence to show that he had paid rent till July, 2014, as stated in the counter filed in R.C.P.No.67 of 2014. After considering the pleadings and evidence on record, Rent Control Court as well as the Appellate Authority arrived at a conclusion that the tenant has defaulted payment of rent in respect of the petition schedule building and as such the landlord is entitled for an order of eviction under Section 11(2)(b) of the Act. The reasoning of the Rent Control Court as well as the Appellate Authority on the above aspect, is neither perverse nor patently illegal, which requires no interference in this Rent Control Revision. 7. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular 8 ## R.C.Rev.No.23 of 2024 case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 8. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v.** 9 R.C.Rev.No.23 of 2024 **Pooran Lal [(2001) 5 SCC 705]** bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 9. In **Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815]** , a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in **Kizhakkayil Suhara v.** **Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19]** that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench 10 ## R.C.Rev.No.23 of 2024 noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was crossexamined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord. 10. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. ## 11. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2)** **KLJ 164]** , another decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the decision of the Apex Court in **Deena Nath v. Pooran Lal [(2001)** **5 SCC 705]** , wherein the Apex Court held that, in order to order 11 R.C.Rev.No.23 of 2024 eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in **Shiv Sarup Gupta [(1999) 6 SCC** **222]** , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In **Abdul Salam** **v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, 12 ## R.C.Rev.No.23 of 2024 if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act. ## 12. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, held that, in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act but, of course, subject to the first and second provisos to Section 11(3). 13. The need projected in the Rent Control Petition for 13 ## R.C.Rev.No.23 of 2024 seeking an order of eviction under Section 11(3) of the Act is that of the son of the landlady, who was examined as PW3, to start a stationery shop in the petition schedule building. That need was established by the oral testimony of PW3. Nothing could be brought out to discredit the version of PW3. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. Before the Appellate Authority, the tenant contended that PW3 is working abroad and as such the need is not bona fide. The learned counsel for the landlady pointed out that PW3 is available in the locality for the last so many years. In the impugned judgment, the Appellate Authority noticed that PW3 was present in court, who produced his Passport for verification. After verification, the Appellate Authority has found that PW3 has not gone abroad for the last so many years. 14. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority arrived at a conclusion that the need projected in the rent control petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. Viewed in the light of the law laid down in the decisions 14 R.C.Rev.No.23 of 2024 referred to supra, it cannot be contended that the reasoning of the Rent Control Court and the Appellate Authority on the above aspect is either perverse or patently illegal, warranting interference by this Court in this Rent Control Revision. 15. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. 16. In **M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355]** the Apex Court was dealing with a case in which eviction on the ground of _bona fide_ requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in **Ram Narain Arora** **v. Asha Rani [(1999) 1 SCC 141]** , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding _bona fide_ requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other 15 R.C.Rev.No.23 of 2024 accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question. 17. In **Vasantha Mallan v. N.S. Aboobacker Siddique** **[2020 (1) KHC 21]** the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of the vacant building, if any, is only upon the tenant 16 R.C.Rev.No.23 of 2024 unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. 18. In **Vasantha Mallan** , relying on the law laid down by the Apex Court in **M.L. Prabhakar [(2001) 2 SCC 355]** the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to 17 ## R.C.Rev.No.23 of 2024 Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not _bona fide_ . What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for nonoccupation of the premises for his alleged needs. ## 19. In **Dineshan Pillai P.B. v. Joseph @ Jose [2019 (3)** **KHC 206]** a Division Bench of this Court was dealing with a case in which one of the contentions of the tenant was that the landlord has several other vacant buildings of his own in his possession to start the proposed business. The Division Bench noticed that, the pleadings are very vague with respect to the first proviso to Section 11(3) of the Act. It is stated that the landlord has several other buildings. No particular vacant room has been identified or pointed out in the pleadings. The Division Bench opined that it is obligatory on the part of the tenant to plead and prove the identity 18 R.C.Rev.No.23 of 2024 of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the tenant has not discharged the initial burden of proof under the first Proviso to Section 11(3) of the Act. 20. In the instant case, before the Rent Control Court, the tenant contended that the room on the western side of the petition schedule building is in the possession of the landlady. The landlady, who was examined as PW1, denied that fact. She has produced Exts.A6 to A15 passbooks issued from Taliparamba Municipal Women Service Co-operative Bank in her name. The collection agent of that Bank was examined as PW2 to show that the tenant of that room, namely, Rajesh, is remitting monthly rent in respect of that room in the account of the landlady. Therefore, the Rent Control Court as well as the Appellate Authority rightly found that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case on hand. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be contended that the reasoning of the Rent Control Court and the Appellate Authority on the above aspect is either perverse or patently illegal, warranting interference by this Court in this 19 R.C.Rev.No.23 of 2024 Rent Control Revision. 21. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 22. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the 20 R.C.Rev.No.23 of 2024 knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged 21 R.C.Rev.No.23 of 2024 satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 23. In the instant case, the tenant has not adduced any evidence to prove that he is mainly depending upon the income derived from the business conducted in the petition schedule building for his livelihood and that there is no other suitable building in the locality for shifting his business. In the absence of any cogent and convincing evidence to prove both the limbs of the second proviso to Section 11(3) of the Act, the Rent Control Court as well as the Appellate Authority concurrently found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be contended that the reasoning of the Rent Control Court and the Appellate Authority on the above aspect is either perverse or patently illegal, warranting interference by this Court in this Rent Control Revision. 24. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. 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 22 R.C.Rev.No.23 of 2024 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. 25. 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, 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 23 R.C.Rev.No.23 of 2024 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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. ## 26. 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 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. ## 27. 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 24 R.C.Rev.No.23 of 2024 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 re-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 re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 25 R.C.Rev.No.23 of 2024 28. 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 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. ## 29. 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 26 R.C.Rev.No.23 of 2024 concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 30. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can reappreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence. ## 31. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2)** **KLJ 164]** , a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the 27 R.C.Rev.No.23 of 2024 purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. 32. Viewed in the light of the law laid down in the decisions referred to supra, we find that the reasoning of the authorities below, while granting an order of eviction under Section 11(2)(b) and 11(3) of the Act are neither perverse nor patently illegal, which requires interference in this revision. 33. The learned counsel for the petitioner-tenant would submit that the petitioner-tenant is conducting business in the petition schedule building and he may be granted one year to vacate the premises. The learned counsel would submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule building to the landlady. 34. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent 28 R.C.Rev.No.23 of 2024 Control Court; however, by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlady, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, 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 building to the petitioner-landlady within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further he shall conduct any business in the petition schedule building 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 two 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 29 R.C.Rev.No.23 of 2024 of the petition schedule building will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **G. GIRISH, JUDGE** MIN