Pradeep v. V. V. Imbichikoya and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 R.C.REV.NO. 146 OF 2021** **AGAINST THE JUDGMENT DATED 23.03.2021 IN R.C.A.NO.121 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), KOZHIKODE AND THE ORDER DATED** **09.08.2019 IN R.C.P.NO.1 OF 2016 OF THE RENT CONTROL COURT** **(PRINCIPAL MUNSIFF-I), KOZHIKODE** ## **REVISION PETITIONER:** ## **PRADEEP,** **AGED 53 YEARS, S/O. PERACHUTTY, PRADEEP ENTERPRISES, DOOR NO.35/299, PULINTODE, NEAR HALSIYAN DIALYSIS CENTER, KOZHIKODE - 673 001.** **BY ADVS. R.SUDHISH M.MANJU** ## **RESPONDENTS:** **1 V.V.IMBICHIKOYA AGED 73 YEARS, S/O. ASSAN, PUTHENVEETTIL, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE - 673001.** - **2 BABU** **AGED 75 YEARS, S/O. PERACHUTTY, VALIYATHODI HOUSE, POST NADAKKAVU, KOZHIKODE - 673 011.** 2 R.C.Rev.No. 146 of 2021 - **3 PRAKASAN,** **AGED 70 YEARS, S/O. PERACHUTTY,** **VIJAYA TANK & VESSELS PRIVATE LIMITED, MULLAND, MUMBAI - 400079, MAHARASHTRA STATE. (DELETED)*** - **4 THANKAM** **AGED 69 YEARS, D/O. PERACHUTTY, RANDAMKOTT HOUSE, P.O. KOYILANDY, KOZHIKODE - 673 305.(DELETED)*** - **5 MANI AGED 65 YEARS, KOTTAMARKANDY PARAMB, P. O. PALLIKUNNU, KANNUR - 670004.** - **6 GEETHA AGED 63 YEARS, D/O. PERACHUTTY, CHALAPURATH HOUSE, POST CHALAPPURAM, KOZHIKODE - 673 002.** ***RESPONDENTS R3 AND R4 DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 23/2/2022 IN IA NO.1 OF 2022 IN R.C.REV.NO.146 OF 2021.** **BY ADVS. JAGAN ABRAHAM M.GEORGE JAISON ANTONY** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 146 of 2021 ## **O R D E R** ## Ajithkumar, J. This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, has been filed by the 1[st] respondent-tenant in R.C.P.No.1 of 2016 on the file of the Rent Control Court (Principal Munsiff-I), Kozhikode. The 1[st] respondent-landlord filed the rent control petition seeking eviction under Section 11(3) of the Act. That petition was dismissed by the Rent Control Court. The 1[st] respondent filed an appeal under Section 18(1)(b) of the Act, R.C.A.No.121 of 2019, challenging that order before the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode. The appeal was allowed ordering eviction. Feeling aggrieved thereof, the petitioner approached this Court with this revision petition. 2. The 1[st] respondent-landlord along with his son has been doing business in oil as a partnership firm under the name and style Shameena Traders. They want petition schedule room for being used as the godown of that business. 4 R.C.Rev.No. 146 of 2021 Therefore, he filed the petition seeking eviction on the ground of bonafide need. 3. The petitioner and respondents 2 to 6, are the legal heirs of the original tenant, Sri.Perachutty, who is no more. The petitioner is now conducting business in the petition schedule shop room. His business is manufacturing gunny bags. The petitioner alone filed counter statement, wherein he contended that the need urged by the 1[st] respondent is not bonafide, he has other buildings in his possession and that the petitioner is entitled to get the benefit of second proviso to Section 11(3) of the Act. 4. The Rent Control Court recorded oral evidence of PW1 and RW1 and received in evidence Exts.A1 to A8, B1, C1 and C1(a). Essential contentions raised before the Rent Control Court were that the wife of the 1[st] respondent has three rooms which situated adjoining to Shameena Traders, of which at least, one room is lying vacant, and avoiding that room, staking a claim for the petition schedule shop room, which is situated around 1 km. away, is with some oblique 5 R.C.Rev.No. 146 of 2021 motive, the 1[st] respondent did not disclose availability of those rooms in the petition and that such facts tell upon the credibility and genuineness of the need urged by the 1[st] respondent. Those contentions as well as the claim for the benefit of the second proviso to Section 11(3) of the Act were considered by the Rent Control Court in the light of the evidence available on record and answered that the need urged by the 1[st] respondent was not bona fide. The 1[st] respondent filed appeal, reiterating the said contentions before the Appellate Authority. The Appellate Authority reappreciated the evidence in detail. As far as three rooms owned by the wife of the 1[st] respondent is concerned, the Appellate Authority took the view that the fact relevant in the context of the first proviso to Section 11(3) of the Act is whether the landlord has any other building in his possession and the fact that the spouse of the landlord has a building, does not have any relevance. Holding that the petitioner failed to prove that the landlord has any other building of his own, the Appellate Authority answered the said contention against 6 R.C.Rev.No. 146 of 2021 the petitioner. It was further found that suitability-wise also opting for the petition schedule shop room by the 1[st] respondent, cannot be found fault with. The Appellate Authority has considered all such relevant aspects of the matter and ordered eviction in reversal of the order of the Rent Control Court. 5. Assailing the findings of the Appellate Authority, the petitioner has preferred this revision petition. While contending generally that the said findings are incorrect, the contention that availability of vacant room with the wife of the landlord, which is suitable and convenient for the purpose urged by the 1[st] respondent, should not have been simply brushed aside by the Appellate Authority for, that is a fact belies the honesty, sincerity and genuineness of the projected need. Accordingly, the revision petitioner urged that the order of eviction is liable to be set aside. 6. On 02.11.2021, this revision petition was admitted to file directing notice to the respondents. Notice was served on all the respondents, except respondent Nos.3 and 4 who 7 ## R.C.Rev.No. 146 of 2021 were deleted from the party array as per Order dated 23.02.2022 on I.A.No.1 of 2022. 7. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] respondent. 8. The learned counsel appearing for the petitioner stressfully urged that possession of vacant room by the spouse of the landlord, even if cannot be taken as a reason to invoke the first proviso to Section 11(3) of the Act, the same is certainly an aspect affecting the genuineness and bonafides of the need. It is pointed out that out of the three rooms owned by the wife of the 1[st] respondent, one room is lying vacant. That room is situated quite adjacent to the premises where Shameena Traders is functioning. When such a convenient room is available, the learned Counsel contends, there is no justification for the landlord instead of using that room as a godown to go for the petition schedule room that is situated one kilometer away. 9. PW1, during examination before court, admitted that 8 R.C.Rev.No. 146 of 2021 room bearing door Nos.9/378, 9/378A and 9/378B belonged to his wife. He also admitted that room No.9/378B is quite close to his business house. As regards occupancy of this room, he maintained that the same has been in the possession of somebody else. It appears that he eluded from answering such a specific question. The learned counsel for the petitioner fell back on that evidence, and also Ext.B1, which is an information obtained from the local authority officials disclosing that after 2017-18 nobody has been holding any licence for conducting a business in room No.9/378B to contend that such a vacant room is available with the 1[st] respondent. The claim that the petition schedule shop room is required for being used as a godown, notwithstanding availability of such a room belonging to his wife was considered by the Appellate Authority and found in favour of the landlord. We may now consider how far this Court can interfere with those findings by invoking the jurisdiction under Section 20 of the Act. 10. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of 9 R.C.Rev.No. 146 of 2021 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 subsection (1) shall be at its discretion. 11. 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, 10 R.C.Rev.No. 146 of 2021 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. 12. 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 11 R.C.Rev.No. 146 of 2021 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. 13. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after 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 the High Court while exercising revisional jurisdiction. 12 R.C.Rev.No. 146 of 2021 14. PW1 categorically stated that the petition schedule shop room has the convenience of loading/unloading of large quantities of oils by bringing in lorries. A godown need not be at a commercially important place. Shameena Traders and the rooms said to be with the wife of the 1[st] respondent are in the big-market area, which is the most important commercial hub in Kozhikode city. If a room, which has high commercial potency, is used as a godown, the same would not be advantageous to its owner. In the said circumstances, the 1[st] respondent instead of looking for the help of his wife, opted for getting his own room, which is in the possession of his tenant, the petitioner. Such a decision of the 1[st] respondent cannot be said to be irrational. Such aspects were considered by the Appellate Authority in the light of the evidence available on record. We are therefore of the view that the findings entered into by the Appellate Authority that the need urged by the 1[st] respondent is bona fide cannot be interfered with, invoking jurisdiction of this Court under Section 20 of the Act. 13 R.C.Rev.No. 146 of 2021 15. First proviso to Section 11(3) reads thus,- 'Provided that the Rent control court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.' 16. A plain reading of this provision conveys that in order to deny a claim for eviction under Section 11(3) of the Act, the landlord should have in his possession a building of his own. When a literal interpretation of a provision conveys its meaning without any ambiguity, the provision can not be stretched or stressed to find out any different meaning. When the proviso says that possession of a building by the landlord of his own is the reason to deny eviction, it cannot be construed to mean that owning of a building by the spouse or another member of the family of the landlord can also be a reason for disentitling the landlord from claiming eviction. Hence, even if it is true that room No.9/378B is lying vacant, that is not a reason to invoke the first proviso to Section 11(3) of the Act. 14 R.C.Rev.No. 146 of 2021 17. The learned counsel appearing for the petitioner did not harp much upon plea under the second proviso to Section 11(3) of the Act. Having considered the evidence on record, we do not find any reason also to find that the view taken by the Appellate Authority with reference to the second proviso is incorrect. 18. In view of what are stated above, we are of the view that the eviction ordered by the Appellate Authority by the judgment dated 23.03.2021 does not warrant any interference. The judgment of the Appellate Authority is not suffering from any illegality, irregularity or impropriety. Therefore, we find that this revision petition lacks merits and we dismiss it. 19. The learned counsel for the petitioner has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting the business. 20. Having heard the learned Counsel appearing on either side and considered all the relevant aspects, we deem it 15 R.C.Rev.No. 146 of 2021 appropriate to grant four months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The 1[st] respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule building to the petitioner-landlord within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/consent issued by the local authority/ statutory authorities; - (ii) The 1[st] 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 16 R.C.Rev.No. 146 of 2021 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 building 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