P.K. YOUSAPH and others v. AYISAKUTTY and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943 R.C.REV.NO.97 OF 2021** **AGAINST THE JUDGMENT IN R.C.A.NO.100 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), KOZHIKODE** **ARISING OUT OF THE ORDER IN R.C.P.NO.2 OF 2014 OF THE RENT CONTROL COURT (ADDITIIONAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONERS:** **1 P.K.YOUSAPH, AGED 50 YEARS** **S/O. MOIDEEN KUTTY, MANAGING PARTNER P.K. TRADERS, 18/350, G VELLARIYIL GARDENS, M.M. ALI ROAD, PALAYAM, KOZHIKODE-673002.** - **2 P.K. MUHAMMED HAJI, AGED 62 YEARS, S/O. P.K. MOIDEEN KUTTY HAJI, P.K. TRADERS, PARAYIL HOUSE, P.O. PARAMBIL PEEDIKA, VIA VELLIMUKKU, MALAPPURAM DISTRICT-676317.** **3 P.K. SAIDALAVI, AGED 59 YEARS, S/O. P.K. MOIDEEN KUTTY HAJI, PARTNER, P.K. TRADERS, PARAYIL HOUSE, P.O. PARAMBIL PEEDIKA, VIA VELLIMUKKU, MALAPPURAM DISTRICT-676317.** - **4 P.K. SUBAIDA, AGED 57 YEARS** **S/O. P.K. MOIDEEN KUTTY HAJI, PARTNER, P.K. TRADERS, PARAYIL HOUSE, P.O. PARAMBIL PEEDIKA, VIA VELLIMUKKU, MALAPPURAM DISTRICT-676317.** R.C.REV. NO. 97 OF 2021 -2- - **5 PULPADAM MUHAMMED, AGED 63 YEARS S/O.AHAMMED, PARTNER, P.K. TRADERS, POTTAMMAL MEDU, P.O. PERUVALLUR, MALAPPURAM DISTRICT-673638.** **6 P.K. TRADERS, REPRESENTED BY ITS MANAGING PARTER P.K. YOUSAPH, S/O. MOIDEEN KUTTY, 18/350 G, M.M. ALI ROAD, PALAYAM, KOZHIKODE-673002.** **BY ADVS. T.KRISHNANUNNI (SR.) VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH THAREEQ ANVER K.** ## **RESPONDENTS:** **1 AYISAKUTTY, W/O. LATE V. SAIDALIKUTTY HAJI, AGED 76, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** ## **2 ABDURAHIMAN, AGED 59 YEARS** **S/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** - **3 ABDUL HAMEED, AGED 49 YEARS S/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** R.C.REV. NO. 97 OF 2021 -3- - **4 ANWAR SADIQUE, AGED 41 YEARS** **S/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** - **5 AMINA, AGED 45 YEARS S/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** - **6 SUBAIDA, AGED 42 YEARS** **D/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** - **7 HAFSA, AGED 38 YEARS** **S/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** - **8 MUMTHAS, AGED 34 YEARS** **D/O. LATE V. SAIDALIKUTTY HAJI, VELLARIYIL HOUSE, THEKKENKUTTOOR AMSOM, VENKALOOR DESOM, TIRUR, MALAPPURAM DISTRICT-676102.** **BY ADVS. P.SANJAY A.PARVATHI MENON P.P.MOHAMED SHAREEF** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV. NO. 97 OF 2021 -4- ## **ORDER** ## **Anil K. Narendran, J.** The revision petitioners are the tenants in R.C.P.No.2 of 2014 on the file of the Rent Control Court (Additional MunsiffII), Kozhikode, a petition filed by one V. Saithalikutty Haji along with respondents 1 to 4 herein, seeking eviction of the tenants from the petition schedule shop rooms, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The bona fide need projected in the Rent Control Petition is that of K.P. Shaheer Hussain, who was examined as PW1, who is the grandson of V. Saithalikutty Haji and Smt.Ayisakutty, for starting bakery, cool bar and cafeteria business in the petition schedule shop rooms. Since V. Saithalikutty Haji died on 17.05.2021, his other legal heirs are arrayed as respondents 5 to 8 in this Rent Control Revision. 2. Before the Rent Control Court, the tenants filed objections, opposing the reliefs sought for in the Rent Control Petition. On the side of the landlord, PW1 was examined and Exts.A1 to A2 series were marked. On the side of the tenants, RWs1 and 2 were examined and Exts.B1 to B5 were marked. R.C.REV. NO. 97 OF 2021 -5- Exts.C1 and C2 are the report of the Advocate Commissioner. The copy of the passport of PW1 was marked as Ext.X1. 3. After considering the pleadings and materials on record, the Rent Control Court arrived at a conclusion that the need projected by the landlords under Section 11(3) of the Act is not bona fide. On the claim of the tenants for protection from eviction from the petition schedule shop rooms under the second proviso to Section 11(3) of the Act, the Rent Control Court held that, since the tenant failed to prove the first limb of the second proviso to Section 11(3) of the Act, they are not entitled to get protection under the second proviso to Section 11(3) of the Act. 4. The order of the Rent Control Court, disallowing the claim of eviction under Section 11(3) of the Act was under challenge before the Rent Control Appellate Authority (Additional District Judge-V), Kozhikode, in R.C.A.No.100 of 2017 filed by the landlords. The finding of the Rent Control Court in its order dated 29.03.2017 that the tenants failed to prove the first limb of the second proviso to Section 11(3) of the Act need no interference and since proof of a single limb of R.C.REV. NO. 97 OF 2021 -6- the second proviso is not sufficient to entail the tenants to avail the benefit under that proviso, the Appellate Authority confirmed the finding of the Rent Control Court that the tenants are not entitled to get protection under the second proviso to Section 11(3) of the Act attained finality, in the absence of an appeal filed by the tenants before the Appellate Authority. By the judgment dated 27.02.2021, the Appellate Authority allowed R.C.A.No.100 of 2017 by setting aside that part of the order of the Rent Control Court in R.C.P.No.2 of 2014 disallowing eviction under Section 11(3) of the Act and the landlords are granted an order of eviction under Section 11(3) of the Act and the tenants are ordered to put the landlords in possession of the petition schedule shop rooms, within one month from the date of that order. 5. Feeling aggrieved by the judgment of the Appellate Authority in R.C.A.No.100 of 2017, the petitioners-tenants are before this Court in this revision petition filed under Section 20 of the Act. 6. Heard the learned counsel for the petitionerstenants and also the learned counsel for the respondents- R.C.REV. NO. 97 OF 2021 -7- landlords. 7. The issue that arises for consideration in this revision petition is as to whether any interference is warranted on the judgment of the Rent Control Appellate Authority dated 27.02.2021 in R.C.A.No.100 of 2017, setting aside the order of the Rent Control Court dated 29.03.2017 in R.C.P.No.2 of 2014 to the extent of disallowing the order of eviction under Section 11(3) of the Act. 8. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per the first proviso to Section 11(1), nothing contained in this Section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act. As per the second proviso to Section 11(1), where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it R.C.REV. NO. 97 OF 2021 -8- records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this Section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 9. 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 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 R.C.REV. NO. 97 OF 2021 -9- 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. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 10. The bona fide need projected in the Rent Control Petition by the landlords for vacant possession of the petition schedule shop rooms is that of PW1 for starting bakery, cool bar and cafeteria business. The Rent Control Court held that the need projected by the landlords is not bona fide and declined order of eviction under Section 11(3) of the Act, on the ground that during the pendency of the Rent Control R.C.REV. NO. 97 OF 2021 -10- Petition, the landlords obtained vacant possession of other rooms and those rooms are not occupied by PW1 and that, as evident from Ext.X1 passport, PW1 is frequently visiting Gulf countries and such a person cannot be expected to run business in the petition schedule shop rooms. 11. The learned counsel for the petitioners-tenants would contend that the Appellate Authority without any valid grounds reversed the finding of the Rent Control Court that the need projected by the landlords under Section 11(3) of the Act is not bona fide. The fact that the landlords obtained vacant possession of other rooms in the building, which are still lying vacant, and also the fact that, PW1 is a person frequently visiting Gulf countries shows lack of bona fides in the need for eviction projected in the Rent Control Petition under Section 11(3) of the Act. 12. Per contra, the learned counsel for the respondentstenants would contend that, as evident from Ext.C2 report of the Advocate Commissioner and the sketch enclosed therewith, other vacant rooms in the building are not suitable for the bona fide need of PW1 for starting bakery, cool bar and R.C.REV. NO. 97 OF 2021 cafeteria business. Further, frequent visits of PW1 to Gulf countries, on visiting visas, as borne out from Ext.X1 passport, is not a valid ground to disallow the order of eviction sought for under Section 11(3) of the Act. Therefore, the Appellate Authority rightly reversed the finding of the Rent Control Court and granted an order of eviction under Section 11(3) of the Act. 13. 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 R.C.REV. NO. 97 OF 2021 -12- bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. 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. 14. 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. 15. Before the Rent Control Court, the oral testimony of PW1 in support of the bona fide need projected in the Rent Control Petition was that he requires the petition schedule shop rooms for starting bakery, cool bar and cafeteria business. PW1 has categorically stated that the rooms lying vacant in the building in question are not suitable for his intended business and that the petition schedule shop rooms are suitable for starting the said business. The Advocate R.C.REV. NO. 97 OF 2021 Commissioner, who inspected the building in question on 25.09.2015 and 17.02.2016, has submitted Exts.C1 and C2 commission reports. A perusal of the sketch prepared by the Advocate Commissioner enclosed along with Ext.C2 report shows that the shop rooms on the western side of the building are having a long varanda with an advantage of parking facility on the western side of the building and also direct view from the main road. RW1 has admitted the above factual aspects, during cross examination. Therefore, admittedly the petition schedule shop rooms, in respect of which an order of eviction is sought for under Section 11(3) of the Act, which is on the western side of the building in question are having the advantage of a long varanda and the parking facility available on the western side of that building. The learned counsel for the respondents-landlords would point out that the tenants have not chosen to file objection to the report of the Advocate Commissioner in which the Advocate Commissioner has pointed out the advantages of the petition schedule shop rooms with three shutters having frontage to varanda and also the parking facility available on the western side of the R.C.REV. NO. 97 OF 2021 -14- building. 16. In the impugned judgment, the Appellate Authority noticed that other rooms lying vacant in the building in question are not suitable for the business proposed by PW1, i.e., bakery, cool bar and cafeteria business. Some of the vacant rooms are on the 1st floor of the building. Shop room bearing No.18/350 G2, which was subsequently surrendered to the landlords and let out to 'Mangalodhayam Ayurvedic Store', is having far lesser dimension than the petition schedule shop rooms. The shop room bearing No.18/350 E4 & E5, which was occupied by 'Walk Foot Wear', is having a plinth area of 330 sq.ft. As evident from the sketch, which forms part of Ext.C1 report of the Advocate Commissioner, that shop room is not having the advantage of varanda and parking facility available on the western side of the building in question. As evident from the sketch, the room let out to 'Mangalodhayam Ayurvedic Store' and the room which was occupied by 'Walk Foot Wear' have no interconnection, as those rooms are lying separately on either side of the building, which cannot be used by PW1 for starting the proposed business. On a proper R.C.REV. NO. 97 OF 2021 -15- evaluation of the pleadings and materials on record and also the admissions made by PW2, during cross examination, the Appellate Authority arrived at a conclusion that the explanation offered by PW1 for non-occupation of the rooms, which fell vacant subsequently, can be regarded as the sufficient and special reasons for not opting those rooms for the intended business. In arriving such a conclusion, the Appellate Authority relied on the decision of this Court in **C. Ambika v. K. Padmanabhan and others [2017 (3) KHC 673]** , wherein it was held that the suitability of the building for the own occupation of the landlord is the prerogative of the landlord, unless it is fainted by malice and ill-will. 17. In **Valsan v. Furtal [2004 (3) KLT 1046]** , a decision relied on by the learned counsel for the respondentstenants, a Division Bench of this Court held that, the mere fact that a landlord has come into possession of a premises while the rent control proceedings is pending does not mean that he should occupy that premises rather than proceeding with the rent control proceedings initiated against another tenant. After having decided to file rent control petition against the tenant R.C.REV. NO. 97 OF 2021 -16- A, tenant B vacates, it will be for the landlord to decide whether he should occupy the vacant premises. The landlord after having made a preference cannot be forced to occupy the premises B, which became available subsequently unless the tenant's need is wholly satisfied, which is essentially a question of fact. 18. In **Sheela V.M. v. KAMCO Employees Union [2010 (2) KLT 435]** , another decision relied on by the learned counsel for the respondents-tenants, a Division Bench of this Court held that it is not for the tenant to dictate to the landlord how to satisfy his need. When the landlord has sufficiently spacious room owned by him, there is nothing wrong in the landlord wanting possession of the said room for his need. The need cannot be rejected on the ground that the landlord would be able to satisfy his need by utilising the varanda. 19. Another contention raised by the tenants before the Appellate Authority is that, since PW1 is a frequent visitor to Gulf countries, as evident form Ext.X1 passport, he is a person employed abroad. As rightly noticed by the Appellate R.C.REV. NO. 97 OF 2021 -17- Authority, no employment visa is stamped on Ext.X1 passport. PW1 has deposed that, on various occasions, he visited Gulf on visiting visa. He has deposed that, till the closure of 'Walk Foot Wear', he was working as an employee in that shop and thereafter, he is jobless. On a reappraisal of the evidence of PW1, the Appellate Authority found that, he is determined to start bakery, cool bar and cafeteria business of his own in the petition schedule shop rooms. Therefore, the Appellate Authority found in favour of the landlords the bona fide need projected in the Rent Control Petition, thereby setting aside the findings to the contra by the Rent Control Court, in its order dated 29.03.2017. 20. 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. 21. In **Ammeer Hamsa v. Ramabhadran and** R.C.REV. NO. 97 OF 2021 -18- **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 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 R.C.REV. NO. 97 OF 2021 -19- 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 satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 22. The Rent Control Court found that the tenants could establish that they are mainly depending upon the income R.C.REV. NO. 97 OF 2021 -20- derived from the business conducted in the petition schedule shop rooms for their livelihood. However, they failed to prove that there are no other suitable buildings available in the locality for carrying on the business conducted in the petition schedule shop rooms. The Appellate Authority noticed that, no evidence was adduced by the tenants to show that there are no other suitable buildings available in the locality. RW1, during cross examination, has conceded that he is not aware of availability of suitable buildings in the locality. In Ext.C2 report, the Advocate Commissioner has reported that the tenants have not taken any measure to bring any such factual aspects to his notice, at the time of inspection. Therefore, the Appellate Authority rightly found no reason to interfere with the finding of the Rent Control Court on the second limb of the second proviso to Section 11(3) of the Act. Though the Appellate Authority found that the finding of the Rent Control Court on the first limb of the second proviso to Section 11(3) of the Act warrants no interference, since the proof of a single limb alone is not sufficient to entail the tenants to avail the benefit of the second proviso, the Appellate Authority rightly R.C.REV. NO. 97 OF 2021 -21- confirmed the finding of the Rent Control Court that the tenants are not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 23. 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-section (1) shall be in its discretion. 24. 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 R.C.REV. NO. 97 OF 2021 -22- 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 re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean - that there could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. ## 25. 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 R.C.REV. NO. 97 OF 2021 -23- 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. 26. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma** **Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act R.C.REV. NO. 97 OF 2021 -24- 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. 27. 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 R.C.REV. NO. 97 OF 2021 -25- 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. 28. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to - be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by R.C.REV. NO. 97 OF 2021 -26- ## the High Court while exercising revisional jurisdiction. 29. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the judgment of the Appellate Authority in R.C.A.No.100 of 2017 is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed against the petitioners-tenants under Section 11(3) of the Act. 30. The learned counsel for the petitioners-tenants would would submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenants may be given at least one year time to give vacant possession of the petition schedule rooms. 31. On the above request made by the learned counsel for the tenants, the learned counsel for the respondentslandlords would submit that a reasonable period of six months may be granted to the tenants for giving vacant possession of the petition schedule shop rooms, on condition that the tenants shall clear the entire dues towards arrears of rent and R.C.REV. NO. 97 OF 2021 -27- continue to pay the monthly rent for the remaining period, without any default. 32. The learned counsel for the tenants would submit that the tenants are prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and they shall continue to pay the monthly rent for the remaining period, without any default, till they give vacant possession of the petition schedule shop rooms to the landlords. 33. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however by granting seven months' time to the petitioners-tenants, to surrender vacant possession of the petition schedule shop rooms to the respondents-landlords, considering the situation prevailing in the Country on account of COVID-19 pandemic, subject to the following conditions: - (i) The respondents-tenants 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 R.C.REV. NO. 97 OF 2021 -28- of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule shop rooms to the petitioners-landlords within seven months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms; (ii) The respondents-tenants 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 month, without any default; (iii) Needless to say, in the event of the respondentstenants 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 petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. sd/Sd/--SD **ANIL K. NARENDRAN, JUDGE** Sd/- **M.R. ANITHA JUDGE** STK