PEETAKANDIYIL RAJAN v. KIZHAKKEDATH IBRAYI

## **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 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943 RCREV. NO. 204 OF 2019** **AGAINST THE JUDGMENT DATED 08.03.2019 IN R.C.A 200 OF 2017 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA CONFIRMING THE ORDER DATED 23.09.2017 IN R.C.P No.13 OF 2016 OF RENT CONTROL COURT (MUNSIFF), VATAKARA REVISION PETITIONER:** **PEETAKANDIYIL RAJAN AGED 62 YEARS S/O.KANNAN, ARAMANA HOUSE, KARTHIKAPPALLY AMSOM, KURINJALIYODE, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT:** **KIZHAKKEDATH IBRAYI AGED 25 YEARS S/O.KUNHAMMAD HAJI, KIZHAKKEDATH HOUSE, VILLIAPPALLY AMSOM, DESOM, VILLIAPPALLY P.O., VATAKARA TALUK, KOZHIKODE DISTRICT-673 542. BY ADV. SMT.K.REEHA KHADER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R.No.204 of 2019 ## **O R D E R** ## Anil K. Narendran, J The petitioner is the respondent-tenant in R.C.P.No.13 of 2016 on the file of the Rent Control Court (Munsiff), Vatakara, a petition filed by the respondents herein-landlord under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop room. Before the Rent Control Court, the tenant filed counter opposing the order of eviction sought for. On the side of the landlord, he was examined as PW1 and Exts.A1 to A4 were marked. The tenant was examined as RW1. The report of the Advocate Commissioner, which is one dated 13.01.2017, was marked as Ext.C1. After considering the pleadings and evidence on record, the Rent Control Court arrived at a finding that the landlord is entitled for an order of eviction under Section 11(8) of the Act. Such a finding has been arrived at, after taking note of the comparative hardship under Section 11(10) of the Act. By the order dated 23.09.2017, the Rent Control Court allowed R.C.P.No.13 of 2016, granting an order of eviction under Section 11(8) of the Act and the tenant was directed to put the landlord in vacant possession of the petition schedule shop room within three 3 ## R.C.R.No.204 of 2019 weeks, failing which the landlord can get the order of eviction executed through court. 2. Challenging the order of eviction granted by the Rent Control Court in R.C.P.No.13 of 2016, the tenant filed R.C.A.No.200 of 2017 before the Rent Control Appellate Authority (Additional District Judge), Vatakara, invoking the provisions under Section 18(1)(b) of the Act. By the judgment dated 08.03.2019 the Appellate Authority dismissed that appeal, thereby confirming the order of eviction granted by the Rent Control Court. 3. Challenging the judgment dated 08.03.2019 of the Appellate Authority in R.C.A.No. 200 of 2017, whereby the order of eviction granted by the Rent Control Court dated 23.09.2017 in R.C.P.No.13 of 2016 stands confirmed, the tenant is before this Court in this Rent Control Revision, under Section 20 of the Act. 4. On 23.05.2019, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondent. In I.A.No.1 of 2019, this Court granted an interim stay of the judgment of the Rent Control Appellate Authority, Vatakara, in R.C.A.No.200 of 2017, confirming the order of eviction by the Rent Control Court, Vatakara in R.C.P.No.13 of 2016, for a period of three months. The said interim order, which 4 R.C.R.No.204 of 2019 was extended from time to time, is still in force. 5. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 6. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the findings of the court below in granting an order of eviction under Section 11(8) of the Act. 7. The learned counsel for the petitioner-tenant would contend that the order of eviction granted by the Rent Control Court and confirmed by the Appellate Authority, under Section 11(8) of the Act is without properly considering the comparative hardship as contemplated under Section 11(10) of the Act, which warrants interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 8. Per contra, the learned counsel for the respondentlandlord would contend that, on a proper appreciation of the pleadings and evidence on record, the Rent Control Court and the Appellate Authority arrived at a conclusion that the landlord is entitled to an order of eviction under Section 11(8) of the Act. The finding of the Rent Control Court and that of the Appellate Authority is after properly considering the comparative hardship, 5 ## R.C.R.No.204 of 2019 as contemplated under Section 11(10) of the Act, which warrants no interference in this Rent Control Revision. 9. Section 11 of the Act deals with eviction of tenants. As per Section 11(8), a landlord who is occupying only a part of a building may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use. Section 11(10) of the Act provides that, claim under sub-section (3), (4), (7) or (8) should be bona fide. As per Section 11(10), the Rent Control Court shall, if it is satisfied that the claim of the landlord - - under sub section (3), (4), (7) or sub section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent control Court, and if the Court is not so satisfied, it shall make an order rejecting the application. As per the first proviso to Section 11(10), in the case of an application made under subsection (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. As per the second proviso to Section 11(10), the Rent control Court may 6 ## R.C.R.No.204 of 2019 give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate. 10. In **Hassan Koya K. v. James George and others [2019 (4) KLJ 74]** a Division Bench of this Court held that, under the provisions of the Kerala Buildings (Lease and Rent Control) Act, the distinction maintained by the legislature between Section 11(3) and Section 11(8) is clear. The test to be applied in a proceeding for eviction under Section 11(8) or Section 11(3), as the case may be, for distinguishing these two grounds of eviction is to ascertain whether landlord and tenant are stated to be occupying different portions of the same building owned by the landlord or whether the tenant is stated to be occupying the whole building of the landlord. If the landlord is in occupation of a portion of his building and asks for eviction of the portion let to his tenant urging need for additional accommodation for personal use, it would then be a case of eviction falling under Section 11(8). On the other hand, if the tenant is put in occupation of a building owned by the landlord who has no part of the structure in his custody, it is then a case brought for eviction under Section 11(3) of the Act alone, provided other conditions for eviction are also 7 ## R.C.R.No.204 of 2019 present. Legally, the grounds of eviction under Section 11(3) and Section 11(8) are fundamentally different and considered therefore as mutually exclusive. The distinction emerging between these two grounds has been discussed in **S.R. Sabu v. T.K. Vasudevan [(2001) 8 SCC 110]** and **Indian Saree House and others v. Radhalakshmy and others [2006 (3) KLT 129]** . 11. In **Hassan Koya K. [2019 (4) KLJ 74]** the Division Bench noticed that, the bona fide claim understood in terms of Section 11(10) of the Act is no way different from the expression 'bona fide' used in Section 11(3) of the Act. Bona fide need or requirement must be the outcome of the natural, sincere, real and honest desire of the landlord rather than a mere wish or desire. This principle of law has long been settled as is discernible from **Mattulal v. Radhe Lal [(1974) 2 SCC 365], Chandukutty v. George [1977 KLT 607]** and **Adil Jamshed Frenchman (Dead) By Lrs. v. Sardar Dastur Schools Trust and others [(2005) 2 SCC 476]** . 12. In **Hassan Koya K.** the Division Bench held that, it is mandatory that a definite finding on the issue of comparative hardship between the parties must be entered in a proceeding for eviction under Section 11(8) of the Act. If the Rent Control 8 ## R.C.R.No.204 of 2019 authorities find on evidence that hardship to which the tenant would be exposed in the case of eviction will be higher than that of the landlord in the case of refusal of eviction, prayer for eviction could only be declined. If, on the other hand, the evidence fortifies a finding that landlord would occasion to suffer greater than the tenant in case of refusal of eviction, an order of eviction under Section 11(8) in such a case would certainly be justified. 13. In **Hassan Koya K.** the Division Bench held that, Section 11(3) of the Act has laid down in very clear and specific terms certain conditions to be satisfied by the landlord as well as tenant in prosecution or defence of eviction proceeding, as the case may be, before the Rent Control authorities. A landlord not being in possession of any building of his own in the locality sufficient to satisfy his proved bona fide need, cannot nonetheless recover tenanted premises on the ground of Section 11(3), if the tenant mainly depends on the income derived from his business and further has no alternative suitable accommodation available in the locality for shifting his business. Strictly speaking, none of the conditions appearing in Section 11(3) is relevant in an eviction petition brought under Section 11(8) seeking additional accommodation. Section 11(8) is absolutely silent as to the 9 ## R.C.R.No.204 of 2019 relevant considerations on which comparative hardship in issue between parties could be decided. Nonetheless the preponderance of judicial precedents is in favour of the view that availability of suitable and alternative premises with both the landlord and tenant to satisfy their needs in a proceeding for eviction under Section 11(8) is one of the matters relevant to the decision on the issue of comparative hardship between the parties. Equally relevant is the question as to whether parties mainly depend for their livelihood on the income derived from the business or trade in case tenanted premises have been let out for conducting business. The Division Bench made reference in this connection to **Phiroze Bamanji Desai v. Chandrakant M. Patel [(1974) 1 SCC 661]** , **Mst. Bega Begum v. Abdul Ahad Khan (Dead) by L.Rs [(1979) 1 SCC 273]** , **Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada [(2003) 2 SCC 320** ], **Arumugham v. R. Leena [ILR 2005 (3) Ker. 584]** , **Jose v. Antony [2005 (1) KLT 252] and Indian Saree House and others v. Radhalakshmy and others [2006 (3) KLT 129]** . 14. In **Hassan Koya K.** the Division Bench found that, the considerations relevant for decision on the issue of comparative hardship in terms of Section 11(10) of the Act are unrestricted and 10 ## R.C.R.No.204 of 2019 wider in scope than the conditions specified in Section 11(3). But only thing that needs to be ensured by the court is that those considerations must be materially relevant and essential to the just decision of the issue. Discretion of the court in this respect should be exercised carefully guided by sound judicial principles and also in conformity with principles of justice, equity and good conscience. Burden of proving such relevant facts within the scope of Section 11(10) is equal to both the parties unlike the burden of proof cast by Section 11(3) of the Act. The landlord seeking eviction under Section 11(8) has not only to prove the bona fides of his claim for additional accommodation but also the comparable degree of hardship which he would suffer than the tenant in the case of refusal of eviction. Burden thereafter shifts to the tenant who would then be liable to show that hardship on him will exceed than that of the landlord in case he fails to secure a decision favourable to his continuance. The Division Bench noticed that the decisions in **Phiroze Bamanji Desai v. Chandrakant M. Patel [(1974) 1 SCC 661]** and **Arjunan v. Eranu [1991 (2) KLT 279]** make the legal position clear in this respect. 15. In **Marzook K.N. and others v. A. J. Simon [2012 (2) KLT 276]** a Division Bench of this Court noticed that, as per 11 ## R.C.R.No.204 of 2019 Section 11(10) of the Kerala Buildings (Lease and Rent Control) Act, the hardship that may be caused to the tenant by granting eviction should outweigh the advantage to the landlords. The Division Bench held that, t he fact that the landlords are affluent and that the tenant may have to shell out money for alternative accommodation is no ground to deny eviction. The comparative hardship even if there is any can be mitigated by granting a reasonable time to vacate. The Division Bench placed reliance on the view taken by the Apex Court in **Bhimanagouda Basanagouda Patil v. Mohammed Gudusaheb [2003 (3) SCC** **101]** . The Division Bench granted the tenant a period of 18 months to vacate the commercial premises in question and held that, comparative hardship under Section 11(10) of the Act can be mitigated by granting larger time to vacate as above. 16. The pleadings and evidence on record would show that the landlord is conducting business in fancy items and footwear under the name and style 'Safiya Fancy Footwear' in shop rooms bearing No.3/490A and 3/490B of Villiappally Grama Panchyath. He obtained shop room bearing No.3/490A on lease from his father, on a monthly rent of Rs.4,000/-. Shop room No.3/490B is owned by the landlord. The need projected in the Rent Control 12 ## R.C.R.No.204 of 2019 Petition, seeking an order of eviction under Section 11(8) of the Act, is the additional requirement to occupy the petition schedule shop room bearing No.3/490D, which is in the possession of the tenant, in which the tenant is conducting business in electric and hardware items and plumbing materials, under the name and style 'P.K.Enterprises'. 17. The need projected in the Rent Control Petition, seeking an order of eviction under Section 11(8) of the Act, is proved by the oral testimony of PW1 and also Ext.C1 report of the Advocate Commissioner. During cross-examination nothing could be brought out to discredit the version of PW1 for additional accommodation for conducting his business in fancy items and footwear. In Ext.C1 report, the Advocate Commissioner noticed that the landlord is not having sufficient space in shop room numbers 3/490A and 3/490B for conducting business in fancy items and footwear. The Advocate Commissioner has also reported that vacant rooms are available in the locality for the tenant to shift his business. 18. The tenant has not chosen to file any objections to Ext.C1 report of the Advocate Commissioner. When the need projected in the Rent Control Petition, seeking an order of eviction under Section 11(8) of the Act, is for expanding the business 13 ## R.C.R.No.204 of 2019 conducted by the landlord in two shop rooms in the building in question, by utilising the additional accommodation, after evicting the tenant from the adjacent shop room, it can be safely concluded that the hardship which may be caused to the tenant, who is conducting business in electric and hardware items and also plumbing materials, in case an order of eviction is granted, will outweigh the advantage to the landlord on granting an order of eviction. It is after considering the oral testimony of the landlord as PW1 and that of the tenant as RW1, the Rent Control Court as well as the Appellate Authority arrived at a conclusion that the landlord is entitled for an order of eviction under Section 11(8) of the Act. The finding of the Rent Control Court and the Appellate Authority after considering the comparative hardship, as contemplated under Section 11(10) of the Act, cannot be said to be either perverse or patently illegal. It cannot also be held that the Rent Control Court or the Appellate authority has committed any material irregularity while granting an order of eviction. 19. 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 14 ## R.C.R.No.204 of 2019 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 subsection (1) shall be at its discretion. 20. 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 15 ## R.C.R.No.204 of 2019 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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. ## 21. 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. ## 22. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High 16 ## R.C.R.No.204 of 2019 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 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. 17 R.C.R.No.204 of 2019 23. 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. 24. 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 18 R.C.R.No.204 of 2019 concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 25. Viewed in the light of the law laid down in the decisions referred to above, we find that the reasoning of the Rent Control Court and the Appellate Authority in the impugned order/judgment cannot said to be either perverse or illegal, warranting an interference, of this Court invoking the review jurisdiction of this Court under Section 20 of the Act. It cannot be said that while passing such order, the court below have committed any mistake. 26. The learned counsel for the petitioner–tenant would submit that, considering the situation prevailing in the country on account of Covid-19 pandemic the tenant may be granted time 6 months' time for vacating the premises. 27. On the above request made by the learned counsel for the petitioner-tenant, the learned counsel for the respondentlandlord would submit that a reasonable period of three months may be granted to the tenant for giving vacant possession of the premises, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 19 ## R.C.R.No.204 of 2019 28. The learned counsel for the petitioner-tenant 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 premises to the landlord. 29. In such circumstances, this Rent Control Revision is dismissed declining interference on the order of eviction granted by the courts below under Section 11(8) of the Act; however by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, considering the situation prevailing in the Country on account of Covid19 pandemic, 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 shop room to the petitioner-landlord within four months from the date of this order and that, he shall not induct third 20 R.C.R.No.204 of 2019 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, 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; - (iii) Needless to say, in the event of the respondenttenant 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 petitionerlandlord will be at liberty to proceed with the execution of the order of eviction. ## **Sd/ANIL K.NARENDRAN JUDGE** ## **Sd/P.G. AJITHKUMAR JUDGE** PV