RadhaKrishnan Unni v. Hussain s/o Mytheen Kunju and Ashik s/o Abdul Salam

## **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 27[TH] DAY OF OCTOBER 2021/5TH KARTHIKA, 1943 RCREV. NO. 126 OF 2021** **AGAINST THE JUDGMENT DATED 07.10.2020 IN R.C.A.NO.36 OF 2019 OF II ADDITIONAL RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOLLAM ARISING OUT OF THE ORDER DATED 22.08.2019 OF THE RENT CONTROL COURT (MUNSIFF), KARUNAGAPPALLY IN I.A.NO.737 OF 2019 IN BRC(OP)NO.12 OF 2015 AND ORDER DATED 08.03.2021 OF THE II ADDITONAL RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOLLAM IN R.P.NO.13 OF 2020 IN R.C.A.NO.36 OF 2019** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **RADHAKRISHNAN UNNI AGED 53 YEARS S/O. VASUDEVAN UNNI, NELLIRETH BHAVAN, PAYIKUZHY, OACHIRA P. O., OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, PIN - 690526.** **BY ADV T.R.RAJAN** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** **1 HUSSAIN S/O. MYTHEEN KUNJU, K. P. HOUSE, WARD NO.XIV, HOUSE NO.468, SASTHAMCOTTA GRAMA PANCHAYATH, PALLISSERIKKAL MURI, PALLISSERIKKAL P. O., SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK, PIN690521.** -2- RCREV. NO. 126 OF 2021 **2 ASHIK S/O. ABDUL SALAM, AISHA BUNGLOW, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE, HOUSE NO.XI-4, KRISHNAPURAM GRAMA PANCHAYATH, KARTHIKAPPALLY TALUK, PIN - 690533.** **R BY ADV.SMT K.G.BINDU** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- RCREV. NO. 126 OF 2021 ## **ORDER** ## Anil K. Narendran, J. The petitioner, who is the tenant in RC(OP)No.12 of 2015 on the file of the Rent Control Court (Munsiff), Karunagappally, a petition filed by the respondents hereinlandlords seeking eviction of the tenant from the petition schedule shop room under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. In that Rent Control Petition, the Rent Control Court passed an exparte order of eviction dated 11.03.2019, whereby the tenant is directed to vacate the petition schedule shop room and give vacant possession of the same to the landlords within a period of 30 days from the date of that order. In the said order, it was made clear that execution of the order of eviction under Section 11(2)(b) will be subject to deposit of the arrears of rent, interest and costs of proceedings, under Section 11(2) (c) of the Act. 2. The tenant filed I.A.No.737 of 2019 before the Rent Control Court invoking the provisions under Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979, read with Section 151 of the Code of Civil Procedure, 1908, seeking -4- RCREV. NO. 126 OF 2021 an order to set aside the ex-parte order of eviction dated 11.03.2019 granted by that court. That application was opposed by the landlords by filing objection. Thereafter considering the rival contentions, the Rent Control, by the order dated 22.08.2019, dismissed I.A.No.737 of 2019 in BRC(OP)No.12 of 2015. 3. The tenant filed R.C.A.No.36 of 2019 before the II[nd] Additional Rent Control Appellate Authority (II[nd] Additional District Judge), Kollam challenging the order dated 22.08.2019 of the Rent Control Court in I.A.No.737 of 2019, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 07.10.2020, confirming the order dated 22.08.2019 passed by the Rent Control Court in I.A.No.737 of 2019. The tenant approached the Appellate Authority again by filing R.P.No.13 of 2020 seeking an order to review the judgment of the Appellate Authority dated 07.10.2020 in R.C.A.No.36 of 2019, which was also ended in dismissal by the order dated 08.03.2021, as not maintainable. Thereafter, the tenant has approached this Court in this Rent Control Revision invoking the provisions under Section 20 of the Act, challenging the -5- RCREV. NO. 126 OF 2021 judgment dated 07.10.2020 of the Rent Control Appellate Authority in R.C.A.No.36 of 2019 and also the order of the Rent Control Court dated 22.08.2019 in I.A.No.737 of 2019 in BRC(OP)No.12 of 2015. In this revision, the tenant has also challenged the order dated 08.03.2021 of the Rent Control Appellate Authority in R.P.No.13 of 2020 in R.C.A.No.36 of 2020. 4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords. 5. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the judgment/orders of the authorities below in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 6. 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 -6- RCREV. NO. 126 OF 2021 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 in its discretion. 7. 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. -7- RCREV. NO. 126 OF 2021 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. ## 8. 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. 9. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** -8- RCREV. NO. 126 OF 2021 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 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 -9- RCREV. NO. 126 OF 2021 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. 10. 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. 11. 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** -10- RCREV. NO. 126 OF 2021 **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. As already noticed hereinbefore, BRC(OP)No.12 of 2015 is one filed by the respondents-landlords seeking eviction of the petitioner-tenant from the petition schedule shop room, under Section 11(2)(b) and 11(3) of the Act, on the ground of arrears of rent and bona fide need. In that Rent Control Petition, the tenant raised a preliminary issue disputing the landlord-tenant relationship. That issue has already been decided against the tenant by the order of the Rent Control Court dated 19.01.2018. 13. Before the Rent Control Court, the tenant was set ex-parte, originally on 14.03.2018 when the case was listed for trial. That ex-parte order was set aside based on an application made by the tenant. Thereafter, he was again set -11- RCREV. NO. 126 OF 2021 ex-parte and that order was also set aside as per the order in I.A.No.935 of 2018. It is thereafter that, when the BRC(OP) was listed for trial on 11.03.2019, the tenant remained absent. The learned counsel for the tenant refused to crossexamine the landlord, who was examined as PW1. It was in such circumstances that the Rent Control Court passed an exparte order of eviction dated 11.03.2019 in BRC(OP)No.12 of 2015. The said order was sought to be set aside by filing I.A.No.737 of 2019 invoking the provisions under Rule 13(3) of the Rules, which ended in dismissal. The appeal filed by the tenant before the Appellate Authority against the order dated 22.08.2019 in I.A.No.737 of 2019 as R.C.A.No.36 of 2019 also ended in dismissal. The review petition filed by the tenant challenging the judgment in the above appeal also ended in dismissal. 14. As borne out from the impuged orders/judgment of the authorities below, the attempt of the tenant was only to protract the eviction proceedings initiated, based on the Rent Control Petition of the year 2015. After considering the materials on record, the authorities below have arrived at a conclusion that the ex-parte order of eviction in -12- RCREV. NO. 126 OF 2021 BRC(OP)No.12 of 2015 is not liable to be interfered with either under Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules or under Section 18(1)(b) of the Kerala Buildings (Lease and Rent Control) Act or even in exercise of review jurisdiction. The said findings of the courts below is 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, we find no reason to interfere with the orders/judgment of the authorities below. This Rent Control Revision fails and the same is accordingly dismissed. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/30/10