R.C.Rev. No.433 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 RCREV. NO. 433 OF 2019** **AGAINST THE JUDGMENT DATED 28.06.2019 IN RCA NO.16 OF 2017 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIOINAL DISTRICT JUDGE-II), PALAKKAD CONCURRING WITH THE COMMON ORDER IN RCP NO.9 OF 2012 DATED 07.06.2017 OF THE RENT CONTROLLER (MUNSIFF), ALATHUR** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT (TENANT):** **K.RAMANUNNI, AGED 59 YEARS S/O. M.K.KRISHNANKUTTY MOOTHAN, MOOCHIKKAL HOUSE, ETHANUR AMSOM AND DESOM, CHITTUR TALUK, PALAKKAD DISTRICT** **BY ADVS. P.K.MOHANAN(PALAKKAD) ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH** ## **RESPONDENTS/SUPPLEMENTARY APPELANTS 2 TO 6/LEGAL HEIRS OF** **- DECEASED PETITIONER LANDLORD:** - **1 AVVAUMMA, W/O. LATE SHAHUL HAMMEED, RESIDING AT VICTORY HOUSE, KOTTAYI AMSOM, PULINELLI DESOM, ALATHUR TALUK, PALAKKAD DISTRICT,PIN-678 572** **2 SUNITHA KALATHINGAL, AGED 49 YEARS D/O. LATE SHAHUL HAMMEED, RESIDING AT VICTORY HOUSE, KOTTAYI AMSOM, PULINELLI DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN-678 572** - **3 VAHEEDA BEEGUM, AGED 46 YEARS D/O. LATE SHAHUL HAMMEED, RESIDING AT VICTORY HOUSE, KOTTAYI AMSOM, PULINELLI DESOM, ALATHUR TALUK, PALAKKAD DISTRICT,PIN-678 572** R.C.Rev. No.433 of 2019 -: 2 :- **4 JALEENA BANU, AGED 41 YEARS D/O. LATE SHAHUL HAMMEED, RESIDING AT VICTORY HOUSE, KOTTAYI AMSOM, PULINELLI DESOM, ALATHUR TALUK, PALAKKAD DISTRICT,PIN-678 572** **5 NOUSHAD P.S., AGED 35 YEARS S/O. LATE SHAHUL HAMMEED, BUSINESS, RESIDING AT VICTORY HOUSE, KOTTAYI AMSOM, PULINELLI DESOM, ALATHUR TALUK, PALAKKAD DISTRICT,PIN-678 572** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB SRI.JAWAHAR JOSE, AMICUS CURIAE** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.433 of 2019 -: 3 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.C. Rev. No.433 of 2019** ## **----------------------------------------------Dated this the 10[th] day of February, 2023** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant in an eviction petition under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) is the petitioner in this revision petition. Though the Rent Control Court ordered eviction under both heads initially, in an appeal by the tenant, the Appellate Authority set aside the order under Section 11(3) and remitted the eviction petition under that head for fresh consideration. Thereupon, after letting the parties to adduce further evidence, the Rent Control Court dismissed the eviction petition, insofar as it relates to the claim under Section 11(3). The landlord challenged the said decision of the Rent Control Court in appeal. Pending disposal of the appeal, although the landlord died, his legal representatives, collectively referred to herein as landlords, came on record and pursued the appeal. The Appellate Authority allowed the said appeal in terms of the judgment impugned in this revision petition and ordered eviction of the tenant under Section 11(3) also. It is aggrieved by the said R.C.Rev. No.433 of 2019 -: 4 :- decision of the Appellate Authority that the tenant has come up in this revision petition. 2. The landlord who held the building of which the tenanted premises is a part, was an ex-service man. The case set out by him in the eviction petition relating to the claim under Section 11(3) of the Act is that he intends to start a stationery-cumfruit stall business in the premises. The tenant filed objections to the eviction petition mainly contending that the landlord has several other premises and businesses and the claim is therefore not _bona fide_ . 3. The landlord gave evidence in the proceedings as PW1. Exts.A1 to A3 were the documentary evidence on the side of the landlord. The tenant did not give any evidence. The Advocate Commissioner who inspected the premises gave evidence as CW1. Ext.C1 is the initial report of the Advocate Commissioner and Ext.C2 is the subsequent report of the Advocate Commissioner. 4. On an evaluation of the materials on record, the Rent Control Court found that the landlord has another vacant premises in his possession and therefore, there is no _bona fides_ in the need set out for eviction. The Appellate Authority, on an elaborate re-evaluation of the materials, found that there is nothing on record to indicate that the need set out by the landlord is not _bona fide_ and that the tenant is not entitled to the benefit of the R.C.Rev. No.433 of 2019 -: 5 :- first proviso to Section 11(3). It is on the basis of the said finding that the Appellate Authority reversed the decision of the Rent Control Court and ordered eviction of the tenant under Section 11(3) as well. 5. Heard the learned counsel for the landlords as also the learned counsel for the tenant. 6. The learned counsel for the tenant, at the outset, pointed out that the building, of which the tenanted premises is a part has been pulled down by the landlords during the pendency of the revision petition. It was pointed out by the learned counsel that even though a complaint has been lodged in this connection by the tenant to the police, no action was taken by the police in this regard. It was submitted by the learned counsel that an affidavit has been filed by the tenant to that effect in this revision petition. As regards the merits of the matter, the learned counsel for the tenant submitted that inasmuch as the need set out in the eviction petition was that of the landlord, the Appellate Authority ought not have ordered eviction under Section 11(3) in the wake of the death of the landlord. It was also argued by the learned counsel that at any rate, it is a case where the tenant is entitled to the benefit of the first proviso to Section 11(3) as the landlords have other vacant premises in their possession, which could be used for the proposed need. To bring home the said point, the learned counsel has relied R.C.Rev. No.433 of 2019 -: 6 :- on Ext.C2 report of the Advocate Commissioner appointed in the proceedings. 7. Per contra, the learned counsel for the landlords submitted that it is without any basis that the tenant has alleged in the affidavit filed before this Court that the premises was pulled down by the landlords. According to the learned counsel, the building, of which the tenanted premises is a part, was a very old building and it collapsed naturally. It was also pointed out by the learned counsel that it is a building in respect of which the concerned local authority has initiated proceedings for demolition, as it was not safe for occupation. As regards the merits of the matter, the learned counsel for the landlords submitted that the factual findings, on the basis of which the Appellate Authority reversed the decision of the Rent Control Court and ordered eviction under Section 11(3), do not call for interference by this Court, in exercise of the jurisdiction under Section 20 of the Act inasmuch as it cannot be said that those findings are either erroneous or perverse. It was also contended by the learned counsel that inasmuch as it is admitted by the tenant that the building does not exist now, the revision petition has become infructuous and it is unnecessary for this Court to examine the sustainability or otherwise of the impugned decision. 8. After hearing the learned counsel for the parties, ## R.C.Rev. No.433 of 2019 -: 7 :- we requested Adv.Jawahar Jose to assist the Court as to the legal position consequent on the destruction of the building during the pendency of the proceedings and on our request, Adv.Jawahar Jose also made elaborate submissions as to the consequence of the destruction of the building during the pendency of the proceedings, vis-a-vis, the rights of the tenant under the Act. 9. There is absolutely nothing on record to suspect the stand taken by the landlords that the building fell down naturally. In the circumstances, we propose to proceed with the matter as if it is a case where the building fell down naturally. The first and foremost question to be examined therefore is whether the statutory tenancy is determined on account of the destruction of the building. In **Shaha Ratansi Khimji and Sons v. Kumbhar Sons Hotel Private Limited and Others** , (2014) 14 SCC 1, it was held by a Three Judge Bench of the Apex Court that the lease of a building includes the land on which the building stands and therefore, even if the building is destroyed, or demolished, the lease is not determined as long as the land beneath it continues to exist. As per the said judgment, the Apex Court overruled its earlier judgment in **Vannattankandy Ibrayi v. Kunhabdulla Hajee** , (2001) 1 SCC 564, wherein it was held that a lease in respect of a building governed by the Act, will be extinguished on the natural destruction of the building. In light of the decision of the Apex Court R.C.Rev. No.433 of 2019 -: 8 :- in **Shaha Ratansi Khimji** , the contention taken by the learned counsel for the landlords that the matter has become infructuous, cannot be accepted. Needless to say, the revision petition needs to be decided on its merits. 10. On the merits of the matter, the question to be examined is whether the impugned decision of the Appellate Authority suffers from any illegality, irregularity or impropriety. 11. Before examining the question in the context of the arguments advanced by the learned counsel for the parties, it is necessary to keep in mind the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, reappreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting R.C.Rev. No.433 of 2019 -: 9 :- correction under Section 20 of the Act. 12. As noted, it is on a finding that the landlord is in possession of a vacant premises in the very same building, of which the tenanted premises is a part, the Rent Control Court came to the conclusion that the need set out by the landlord is not _bona fide_ . The Appellate Authority examined the correctness of the said finding, though not in the context of the _bona fides_ of the need set out, but in context of the benefit available to the tenant under the first proviso to Section 11(3) of the Act. In Ext.C2 report filed by the Advocate Commissioner after her second visit, it is stated by her that she found a closed room in the ground floor of the building near its staircase leading to the first floor. The stand of the landlord as regards the said room was that the same is being occupied by the son of the landlord for the business carried on by him in the name “Kitchen Queen”. The said room was not opened and examined by the Advocate Commissioner. Although there was a suggestion to the Advocate Commissioner from the side of the landlord at the time of her examination that the son of the landlord was willing to open the said room for the examination of the Advocate Commissioner and she refused to do so, the said suggestion was denied by the Advocate Commissioner. It is in the said background that the Rent Control Court came to the conclusion that the said room was a vacant room in the possession of the landlord. The Appellate R.C.Rev. No.433 of 2019 -: 10 :- Authority noticed from the evidence tendered by the Advocate Commissioner that she was not even aware of the fact that she was asked to inspect the premises afresh to ascertain whether there are any vacant rooms in the possession of the landlord. It is in the said circumstances that the Appellate Authority took the view that merely for the reason that the Advocate Commissioner found a closed room in the building, it cannot be said that the same was a vacant room in the possession of the landlord. It is seen that the Appellate Authority came to the said conclusion also for the reason that the Advocate Commissioner has stated in her evidence that she has not ascertained whether the various closed rooms found in the building were in fact occupied by anyone. The aforesaid view expressed by the Appellate Authority on a reappraisal of the facts and evidence, cannot be said to be erroneous or perverse in any manner. 13. It is trite that the crucial date for deciding the _bona fides_ of a requirement is the date of application for eviction and if every subsequent development is to be taken into account for judging the _bona fides_ of the requirement, there would be no end to litigation. But that does not mean that subsequent events need not be taken note of at all. The subsequent events to overshadow the genuineness of the need must be of such a nature and of such a dimension that the need propounded by the petitioning party should ## R.C.Rev. No.433 of 2019 -: 11 :- have been completely eclipsed by such subsequent events [See **Gaya Prasad v. Pradeep Srivastava** , (2001) 2 SCC 604]. In the case on hand, the need set out is that the landlord intends to start a stationery-cum-fruit stall business in the premises. Such a need being one that could be pursued by his legal representatives on his death, according to us, the death of the landlord in a case of this nature is of no consequence [See **Alavi K.P. v. Jameela P.P.** , 2013 KHC 3699 and **Narayanan v. Tahira** , 2009 (3) KLT 749]. 14. Needless to say, there is no illegality, irregularity or impropriety in the decision of the Appellate Authority warranting interference of this Court under Section 20 of the Act. In light of the said finding, it is unnecessary for us to delve into the consequence of destruction of the building _vis-a-vis_ the rights of the tenant. The revision petition is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 28.01.2023 R.C.Rev. No.433 of 2019 -: 12 :- ## **APPENDIX OF RCREV. 433/2019** ## **RESPONDENT ANNEXURES** |**Annexure-R1(a)**|**A true photographs of building as it**| |---|---| ||**stood in the year 2019.**| |**Annexure-R1(b)**|**A true copy of the notice dated**| ||**29.05.2019 issued to Rajan in respect**| ||**of Room No.9/314 by the Secretary,**| ||**Kottayi Grama Panchayat.**| |**Annexure-R1(c)**|**A true copy of the notice dated**| ||**29.05.2019 issued to 5th respondent**| ||**in respect of Room Nos.9/318 and 319**| ||**by the Secretary, Kottayi Grama**| ||**Panchayat.**| |**Annexure-R1(d)**|**A true copy of the notice dated**| ||**29.05.2019 issued to respondents in**| ||**respect of Room Nos.9/311 to 319 by**| ||**the Secretary, Kottayi Grama**| ||**Panchayat.**| |**PETITIONER ANNEXURES**|| |**Annexure 1**|**True copy of the petition dated**| ||**14/06/2019 filed by the petitioner**| ||**before Kottayi Police Station,**| ||**Palakkad**| |**Annexure 2**|**True copy of teh receipt dated**| ||**14/06/2022 issued from Kottayi Police**| ||**Station, Palakkad**| |**Annexure 3**|**True copy of the lawyer notice dated**| ||**07/10/2022 to respondents 1 to 5**| |**Annexure 4**|**True copy of the postal receipts**| ||**dated 07/10/2022 obtained from the**| ||**post office**|