R.C.Rev. No. 149 of 2021 — Komath Saleem, Komath Salam, Komath Muneer, Komath Mujeeb, Komath Basheer, Komath Nazeer, Komath Afsath, Komath Fousiya, Komath Mumthaz, Komath Shahida v. Bran Moidu

## **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 10[TH] DAY OF NOVEMBER 2021/19TH KARTHIKA, 1943** ## **R.C.REV. NO. 149 OF 2021** **AGAINST THE JUDGMENT DATED 30.07.2021 IN R.C.A.NO.25 OF 2019 ON THE FILE OF THE RENT CONTROL APPPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), WAYANAD AND ORDER DATED 30.07.2019 IN R.C.P.NO.3 OF 2016 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF-MAGISTRATE), MANANTHAVADY** ## **REVISION PETITIONERS:** - **1 KOMATH SALEEM AGED 60 YEARS, S/O. K.USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **2 KOMATH SALAM, AGED 57 YEARS, S/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **3 KOMATH MUNEER, AGED 44 YEARS, S/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **4 KOMATH MUJEEB, AGED 40 YEARS, S/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **5 KOMATH BASHEER, AGED 37 YEARS, S/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** 2 R.C.Rev.No. 149 of 2021 - **6 KOMATH NAZEER,** - **AGED 34 YEARS, S/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **7 KOMATH AFSATH,** - **AGED 61 YEARS, S/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **8 KOMATH FOUSIYA,** - **AGED 57 YEARS, D/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **9 KOMATH MUMTHAZ,** - **AGED 44 YEARS, D/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** - **10 KOMATH SHAHIDA, AGED 41 YEARS, D/O. K. USMAN, RESIDING AT KOMATH HOUSE, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD - 670645.** **BY ADVS.** **SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.DONA PAUL SMT.ANUSREE.C** 3 R.C.Rev.No. 149 of 2021 ## **RESPONDENT:** **BRAN MOIDU** **AGED 73 YEARS, S/O. MAYAN HAJEE, RESIDING AT BRAN HOUSE, KAMMOTH, POST KALLODY, EDAVAKA VILLAGE, MANANTHAVADY, WAYANAD - 670 645.** **BY ADV SRI.ARUN KRISHNA DHAN** ## **OTHER PRESENT:** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 R.C.Rev.No. 149 of 2021 ## **O R D E R** ## Ajithkumar, J. The respondent filed Rent Control Petition No.3 of 2016 before the Rent Control Court (Munsiff), Mananthavady, seeking eviction of the petitioners from the petition schedule building under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered. Appeal at the instance of the petitioners before the Rent Control Appellate Authority (Additional District Judge-I), Kalpetta, as Rent Control Appeal No.25 of 2019 failed. Hence, the petitioners filed this Rent Control Revision under Section 20 of the Act. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 3. The learned counsel for the petitioners submitted concentrating essentially on one point; the need urged by the respondent is not bonafide. It is submitted that two earlier attempts for evicting the petitioners from the petition schedule shop room was abandoned halfway through and that 5 R.C.Rev.No. 149 of 2021 sons of the respondent for whose need the petition schedule shop room is now required, are working abroad in an enviable position and as there is absolutely no chance for their coming home to start a low profile business in readymades in the petition schedule room, which is a small one. The learned counsel wanted us to appreciate the evidence of PW1 and PW2 in little detail in order to appreciate the contention that the need urged is only a ruse for eviction. 4. 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 6 R.C.Rev.No. 149 of 2021 (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. 5. 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 7 R.C.Rev.No. 149 of 2021 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. ## 6. 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. 8 R.C.Rev.No. 149 of 2021 7. 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 may be, it cannot have jurisdiction to reappreciate 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 9 R.C.Rev.No. 149 of 2021 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. 8. 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 10 R.C.Rev.No. 149 of 2021 confined to find out legality, regularity and propriety of the order impugned before it. 9. 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 the High Court while exercising revisional jurisdiction. 10. In view of the above legal principles, it is not possible for us to re-appreciate the evidence, especially when the Appellate Authority, being the first appellate court, has considered and marshalled the entire evidence in great detail and confirmed the finding of the Rent Control Court. 11. Apart from the landlord-PW1, his son-PW2 for whom the room is required, deposed in clear terms before the 11 R.C.Rev.No. 149 of 2021 Rent Control Court regarding the need. The scheduled shop room is used by the petitioners for conducting a bakery business. Its upstairs portion is available vacant. It is seen from the Engineer's report, Ext.C2, that the tiled roof of the first floor is leaky and dilapidated. The report says that only after necessary repairs and avoiding seepage, the same can be put to use. The premises having been put to use by the tenant for conveniently conducting a bakery business, it is not possible for the tenant to contend that the building is not suitable for conducting a textile ready-made business. 12. It is for the landlord to decide what kind of modifications are to be carried out and also the necessary repairs. PW2 deposed the circumstances compelling him to come home to start a business. The desire of his younger brother to join the businesses also has been deposed. Their intention and bonafides cannot be doubted in the circumstances of this case. 13. The fact that two earlier attempts to evict the petitioners from the scheduled shop room had to be 12 R.C.Rev.No. 149 of 2021 abandoned cannot, in our view, be termed as an element of prejudice instigating the respondent to initiate the present eviction proceedings. The first attempt was fruitful and the respondent started business. Owing to ill-health, he handed the premises on rent back to the very same tenantspetitioners. Second time, the demand for eviction was not pursued by the respondent and the requirement of starting a business by his another son was satisfied by availing a room on rent. It was after about 18 years the respondent came forward with the present demand. The chronology of those events which are now not in dispute, in fact, substantiate the bona fides of the landlord- respondent. 14. Having considered all the aforesaid aspects, we are of the definite view that there is no reason to interfere with the finding of the judgment of the Appellate Authority. It is not suffering from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 15. The learned counsel for the petitioners has made a request to afford time till June, 2022 for vacating the 13 R.C.Rev.No. 149 of 2021 premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his bakery business. The learned counsel for the respondent is agreeable to grant four months’ time. 16. Having considered all the aspects, we deem it appropriate to grant six 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 petitioners-landlord 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 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 the local 14 ## R.C.Rev.No. 149 of 2021 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 petitioners-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