Peravankandi Abdul Salam v. Othayoth Payancheri Badarul Muneer and Sara Muneer

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ## **`RCREV. NO.3 OF 2024`** ``` AGAINST THE JUDGMENT DATED 06.12.2022 IN RCP 1 of 2020 OF MUNSIFF COURT, NADAPURAM ``` ``` JUDGMENT DATED 31.10.2023 IN RCA NO.11/2023 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` PERAVANKANDI ABDUL SALAM, AGED 50 YEARS PERAVANKANDI HOUSE, VELOM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT., PIN - 673508 ``` ``` BY ADVS. ARUNKUMAR P. BALAGOPALAN P. ZUBAIR PULIKKOOL ``` ## **`RESPONDENTS/RESPONDENT/PETITIONER:-`** - **`1 OTHAYOTH PAYANCHERI BADARUL MUNEER, AGED 52 YEARS OTHAYOTH PAYANCHERI HOUSE, KAYAKKODY AMSOM, DEVARKOVIL DESOM, VATAKARA TALUK, KOZHIKODE, PIN - 673508`** - **`2 SARA MUNEER, AGED 50 YEARS OTHAYOTH HOUSE, KAYAKKODY AMSOM, DEVARKOVIL DESOM, VATAKARA TALUK, KOZHIKODE, PIN - 673508`** ``` BY ADV R.K.MURALEEDHARAN(K/330/1989) (CAVEATOR) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev.)No.3 of 2024 ## **O R D E R** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.1 of 2020 on the file of the Rent Control Court (Munsiff), Nadapuram, which was one filed by the respondents herein-landlord and his wife under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop rooms, six in number, which are on the ground floor of a three-storied building owned by the landlord. 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 landlord and his wife to start a supermarket in that building. The tenant entered appearance and filed counter statement, opposing the reliefs sought for in that Rent Control Petition. Before the Rent Control Court, on the side of the landlord, he was examined as PW1 and Exts.A1 to A5 were marked. The tenant has not chosen to adduce any oral or documentary evidence. 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, that the 3 R.C.(Rev.)No.3 of 2024 provisions under the first proviso to Section 11(3) of the Act is not attracted and that the tenant is not entitled to the protection under the second proviso under Section 11(3). Accordingly, the Rent Control Court, vide order dated 06.12.2022, granted an order of eviction under Section 11(3) of the Act and the tenant was directed to put the landlord in vacant possession of the petition schedule shop rooms, within a period of 30 days from the date of that order. 2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.11 of 2023 before the Rent Control Appellate Authority (Additional District Judge), Vatakara, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 31.10.2023, thereby confirming the order of eviction granted by the Rent Control Court. Feeling aggrieved by the order of eviction concurrently passed by the authorities below, the petitioner-tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 3. Heard the learned counsel for the petitioner-tenant and the learned counsel for the respondents-landlord and his wife. 4 R.C.(Rev.)No.3 of 2024 4. The issue that requires consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction concurrently passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act. 5. During the course of arguments, the learned counsel for the petitioner-tenant would confine the challenge made in this Rent Control Revision against the finding of the Rent Control Court and the Appellate Authority on the applicability of the first proviso to Section 11(3) of the Act. 6. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 case it will be just and proper to do so. As per the second proviso to Section 11(3), the 5 R.C.(Rev.)No.3 of 2024 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. 7. 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. 8. 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_ 6 R.C.(Rev.)No.3 of 2024 requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and nondisclosure 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. ## 9. 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. 7 R.C.(Rev.)No.3 of 2024 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 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. 10. 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 8 R.C.(Rev.)No.3 of 2024 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 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 non-occupation of the premises for his alleged needs. ## 11. 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 9 R.C.(Rev.)No.3 of 2024 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 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. 12. In the instant case, the need projected in the Rent Control Petition for seeking eviction of the tenant from the petition schedule shop rooms, six in numbers, which are on the ground floor of a three-storied building owned by the 1[st] respondent-landlord was that of the landlord and his wife, who is the 2[nd] respondent herein, to start a supermarket in the multistoried building. The specific case of the landlord is that he is in possession of nine rooms on the first floor, which are required for packing section, office and rest rooms for the supermarket. The work of the rooms on the second floor is not yet completed. Therefore, the landlord bona fide requires the petition schedule shop rooms on the ground floor. The need projected in the Rent 10 R.C.(Rev.)No.3 of 2024 Control Petition for seeking an order of eviction under Section 11(3) of the Act in respect of the petition schedule shop rooms was established through the oral testimony of the landlord, who was examined as PW1. After analysing the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority found that the need projected in the Rent Control Petition is bona fide and that the first proviso to Section 11(3) of the Act is not attracted 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, the conclusion of the authorities below on the above aspect cannot be said to be either perverse or patently illegal, warranting an interference by this Court. 13. 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 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, 11 R.C.(Rev.)No.3 of 2024 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 in its discretion. 14. 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 reappreciated 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 reappreciating 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 12 R.C.(Rev.)No.3 of 2024 evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 15. 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. 16. 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 13 R.C.(Rev.)No.3 of 2024 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 reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 17. In **Hindustan Petroleum Corporation Limited** **v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of 14 R.C.(Rev.)No.3 of 2024 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. 18. 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 15 R.C.(Rev.)No.3 of 2024 below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 19. 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. 20. 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 purpose of ascertaining whether the conclusion arrived at 16 R.C.(Rev.)No.3 of 2024 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. 21. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Appellate Authority in the impugned order/judgment 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 first proviso to Section 11(3) has no application in the facts and circumstances of the case, are neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. In such circumstances, this Rent Control Revision fails and the same is accordingly dismissed. 22. The learned counsel for the petitioner-tenant would submit that the petitioner is conducting a supermarket in the ground floor of the petition schedule shop rooms and he may be granted at least six months’ time to vacate the premises. 23. The learned counsel for the respondents-landlord and his wife would submit that the Rent Control Petition was originally commenced in the year 2016 before the Grama 17 R.C.(Rev.)No.3 of 2024 Nyayalaya, Kuttiyadi, which was later transferred to the Rent Control Court (Munsiff), Nadapuram in the year 2020 and numbered as R.C.P.No.1 of 2020. In case this Court grants reasonable time to the tenant to vacate the petition schedule premises, that order may be a conditional order directing the tenant to deposit the admitted arrears of rent and continue to pay the rent during the period of occupation. 24. 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 Control Court; however by granting six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop rooms to the 1[st] respondent-landlord, 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 rooms to the 1[st] petitionerlandlord 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 18 R.C.(Rev.)No.3 of 2024 further he shall conduct any business in the petition schedule shop rooms 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 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 rooms will stand cancelled automatically and the 1[st] petitionerlandlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** ded