P.K. Chandu v. Kavilumpara Sri Bhagavathi Temple represented by its Secretary, Kavilumpara Sri Bhagavathi Kshetra Committee Society

# **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 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** **R.C.REV.NO. 13 OF 2016** **AGAINST THE JUDGMENT DATED 20.10.2015 IN R.C.A.NO.53 OF 2014 OFD THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA AND THE ORDER DATED 26.02.2014 IN R.C.P.NO.20 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), NADAPURAM** ## **REVISION PETITIONER:** **P.K.CHANDU, AGED 65 YEARS, S/O. KANNAN CHETTIAR, XII/775, SREYAS TEXTILES, THOTTIPALAM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.S.VAIDYANATHAN** ## **RESPONDENT/S:** **KAVILUMPARA SRI BHAGAVATHI TEMPLE REPRESENTED BY ITS SECRETARY, KAVILUMPARA SRI BHAGAVATHI KSHETRA COMMITTEE SOCIETY, REG. NO.19/64, KAVILUMPARA, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-671001.** **BY ADVS. SRI.R.K.MURALEEDHARAN SRI.N.M.RAJAGOPAL** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No. 13 of 2016 ## **O R D E R** Ajithkumar, J. The respondent-tenant in R.C.P.No.20 of 2013 on the file of the Rent Control Court (Munsiff), Nadapuram, is the revision petitioner herein. The respondent-landlord filed the rent control petition seeking eviction under Section 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge), Vatakara. The appeal was dismissed. Feeling aggrieved thereof, the petitioner filed this revision petition under Section 20 of the Act. 2. The respondent, Kavilumpara Sri Bhavagathi Kshetra Committee Society, sought eviction for and on behalf of the Kavilumpara Sri Bhavagathi Temple projecting a need that in order for opening a pooja store, prasada counter and a book stall, the respondent requires the petition schedule shop room. The petitioner filed a counter statement challenging 3 R.C.Rev.No. 13 of 2016 maintainability of the petition, besides contending that the need urged by the respondent was not bonafide. Two-fold were the contentions regarding maintainability; firstly that the petition is hit by Section 11(9) of the Act, and secondly that the Society had no right or authority to represent the deity. 3. The Rent Control Court, after considering the evidence came on record, which consists of oral testimony of PW1 and Exts.A1 to A5, B1 to B3 and C1 found that the eviction petition was maintainable and the respondent was entitled to get an order of eviction. Against the said order, the petitioner preferred an appeal, wherein findings of the Rent Control Court were strongly assailed. The Appellate Authority considered all the contentions in detail and after reappreciation of evidence held that the appeal was devoid of merits. 4. On 05.01.2016, this revision petition was admitted to file and an interim stay of execution of the order of eviction was granted. The order of stay has been extended from time to time and is in force. 4 R.C.Rev.No. 13 of 2016 5. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 6. The learned counsel appearing for the petitioner would contend that Kavilumpara Sri Bhavagathi Temple is a private temple, and the respondent Society is not competent to represent the deity. It was contended that the society, which was created for the management of the temple affairs, has no authority to represent the deity, and therefore, the institution of the petition was bad. Whether the temple is private or public has no much relevance as far as a petition for eviction under Section 11(7) of the Act is concerned. 7. In **Miahael v. Paramara Group Devaswom [2006 (1) KLT 979]** this Court considered the extent of applicability of Section 11(7) of the Act and it was held, '12. The Rent Control Court as well as the Appellate Authority have taken the view that though the temple is a private temple, the public come in large numbers for worship in the temple. That fact is not seriously in dispute. Under Section 2(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, “place 5 R.C.Rev.No. 13 of 2016 of public worship” means a place, by whatever name known to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for the offering prayers therein. It is not in dispute that Paramara Temple is not a place where the family members of the trustees alone come for worship. Therefore, though the temple is a private temple, it is open to the Hindu public in general and Section 11(7) of the Act is attracted where such a landlord needs the building for the purpose of the institution. Therefore, the contention of the learned counsel for the revision petitioner that Section 11(7) is not attracted cannot be accepted.' 8. From Ext.A5, the nature of Kavilumpara Sri Bhavagathi Temple can be seen. Though the temple is managed by the temple committee society, it is open for all idol worshippers. Therefore, the temple is a religious institution coming under Section 11(7) of the Act and therefore, this petition is maintainable. 9. The learned counsel appearing for the petitioner would contend that the eviction petition was filed not by the deity. The properties belong to the deity, and therefore, 6 R.C.Rev.No. 13 of 2016 eviction could be claimed only on behalf of the deity; whereas the society for and on behalf of the temple had filed this petition. The petitioner has no case that the building does not belong to the temple. It is the settled law that properties of a temple are vested with the deity. Solely because the litigation has been instituted in the name of the temple, instead of the deity, it cannot be said that the proceedings are vitiated. In this case, the very claim is that the petition schedule shop rooms are required for the purpose of opening a pooja store, a prasada counter and a book stall, all for the benefit of the temple. 10. In the context of Section 92 of the Code of Civil Procedure, 1908, the Apex Court in **Bishwanath and another v. Sri Thakur Radha Ballabhli and others [AIR 1967 SC 1044]** , held that in order to enforce a civil right of idol, any worshipper of the temple can institute a suit for and on behalf of the idol. Relying on the decision in **Vemareddi Ramaraghava Reddy and others v. Konduru Seshu Reddy and others [AIR 1967 SC 436]** , the learned Counsel 7 R.C.Rev.No. 13 of 2016 would contend that the Society having been in charge of the administration of the temple is not entitled to represent the deity. The Apex Court in this decision held that under Section 20 of the Hindu Religious and Charitable Endowments Act, 1951, the Commissioner, Hindu Religious Endowment Board, is vested with the power of superintendence and control over the temple, but that does not mean that he has authority to represent the deity in proceedings before a Court. That is because the Board being a statutory authority having the superintendence and control of the temple management cannot be permitted to represent the deity. That principle is not applicable to this case. 11. That apart, going by Section 2(3) of the Act, the person who is receiving or is entitled to receive the rent of the building whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive, or entitled to receive the rent is the landlord. The petitioner has no case that the respondent is not receiving 8 R.C.Rev.No. 13 of 2016 rent for the temple. In that view of the matter, the right of the respondent to initiate eviction proceedings in respect of buildings owned by the temple cannot be disputed. Therefore, the finding of the courts below that the petition is maintainable is not liable to be interfered with. 12. The petitioner is conducting a textile shop in the petition schedule shop room. He raised a contention that the shop room was constructed by him with the permission of the Kshetra Committee Society with a covenant that he can continue as long as he desires so, and therefore, the petition comes within the mischief of Section 11(9) of the Act. That contention faded away for the reason that the agreement purported to be relating to the tenancy arrangement was not admitted in evidence. 13. What shall be the proof required to show that the need projected is bonafide in the context section 11(7) of the Act was considered by this Court in **Social Service Guild of Assissi Sisters and another v. Ouseph Chacko and others [2009 (2) KHC 639].** It was held, 9 R.C.Rev.No. 13 of 2016 '10. We are unable to agree with the learned counsel for the revision petitioners when he submits that when eviction is sought under sub-section (7) of Section 11, the bonafides of the claim can be established by examining any witness. It is now trite by judgments of Division Bench of this Court in Pakran v. Kunhiraman Nambiar, 2004 KHC 126: 2004 (1) KLT 824 and in K.T.Thomas v. P.Sreedhara Varma, 2007 (4) KHC 409: 2008 (1) KLJ 125: 2007 (4) KLT SN 64 : ILR 2007 (4) Ker.492, that the standards to decide the bonafides of a claim under Section 11(3) and that of a requirement of additional accommodation coming under Section 11(8) are different, the former being more rigorous than the later. According to us, the same principle can be invoked to petitions under Section 11(7) and it can be safely held that the standards for deciding the bonafides of a claim under Section 11(7) are not so rigorous as the standards for deciding the bonafides of a claim under sub-section (7) of Section 11 are even more liberal than the standards for deciding the bonafides of claims under sub-section (8) of Section 11. This is because unlike claims under sub-sections (3) and (8) of Section 11, where a private need of the landlord is being recognized by the Court, in a claim under sub-section (7) of Section 11, the need which is given recognition and accepted as a ground for evicting the tenant, will have certain elements of interest of the 10 R.C.Rev.No. 13 of 2016 public or a section of the public since the accomplishment of the need will be beneficial not only to the landlord but also to the entire public who are beneficiaries of the activities of the institution.' 14. The petition schedule room is a three-shuttered one. It is admittedly used as a single unit. The respondent would contend that this is the convenient one for the intended purpose and the other rooms, which are in occupation of various other tenants are small ones and cannot conveniently be used for the purpose. PW1, the Secretary of the Kshetra Committee, deposed in detail regarding the projected need. The resolutions of the committee exhibited in evidence contain the decision of the committee regarding proposal to put in use the petition schedule shop room for such a purpose. The report contained in Ext.C1, the report of the commissioner would show that the other rooms are small ones. It has come out in evidence that two rooms were let out by the respondent to two different tenants after 04.08.2012. PW1 deposed that the said rooms were situated at distant places and not suitable to accommodate the pooja store, 11 R.C.Rev.No. 13 of 2016 prasada counter and book stall, whereas in the petition schedule shop room the same can be accommodated conveniently. The petition schedule shop room had an advantage on account of its proximity to the temple as well. All such evidence were considered by the courts below to come to the conclusion that the projected need is bonafide. 15. 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, 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- 12 R.C.Rev.No. 13 of 2016 section (1) shall be at its discretion. 16. 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 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; 13 R.C.Rev.No. 13 of 2016 on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 17. 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. 18. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the 14 R.C.Rev.No. 13 of 2016 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 the High Court while exercising revisional jurisdiction. 18. Viewed in the light of the above principle of law, the evidence let in the respondent has sufficiently proved that the need urged by it is bonafide. There is no reason to interfere with the said finding under Section 20 of the Act. 20. In view of what are stated above, we do not find any reason to hold that the judgment of the Appellate Authority or the order of the Rent Control Court are vitiated by any illegality, irregularity or impropriety, requiring interference by this Court in exercise of the jurisdiction under Section 20 of the Act. We hold that the revision petition filed by the petitioner is devoid of any merits and the same is 15 R.C.Rev.No. 13 of 2016 dismissed. 21. The learned counsel for the petitioner has made a request to afford one year for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant six months’ time. 22. Having considered all the aspects, we deem it appropriate to grant seven months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (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 petitioner-landlord within seven 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 16 R.C.Rev.No. 13 of 2016 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; - (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 petitioner-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