R.C.Rev. Nos.52, 53 & 74 of 2021 (Prabhakaran v Annapurneswary; Gopalakrishnan v Annapurneswary; Abdul Samad v Annapurneswary)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021/ 5TH AGRAHAYANA, 1943** **R.C.REV.NO. 52 OF 2021** **AGAINST THE JUDGMENT DATED 24.09.2020 IN R.C.A.NO.5 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-VI), KOLLAM AND AGAINST THE ORDER DATED 30.11.2018 IN R.C.(OP) NO.15 OF 2015 OF RENT CONTROL COURT (MUNSIFF), KARUNAGAPPALLY** ## **REVISION PETITIONER:** ## **PRABHAKARAN,** **AGED 78 YEARS, S/O KESAVAN, BUSINESS, KARUNAGAPPALLY MUNICIPALITY, DOOR NO.K.O. 111/1311, KARUNAGAPPALLY, KOTTARAKARA ROAD, MARKET JUNCTION OPPOSITE TO PWD REST HOUSE, PADANAYARKULANGARA KARA, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK,PIN-690 518.** **BY ADVS.** **SRI.S.JAYAKRISHNAN (KARUNAGAPPALLY) SRI.SRI.D.SREEVALLABHAN** ## **RESPONDENT:** ## **ANNAPURNESWARY,** **AGED 81 YEARS, W/O LATE DR K.G.MARTHANDAN, PURNIMA, CORPORATION OF KOLLAM, DOOR NO 16,860, NEAR DISTRICT HOSPITAL, VADAKKUMBHAGAM, KOLLAM VILLAGE, KOLLAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER ANIL MARTHANDAN KANNAT, S/O DR. K.G.MARTHANDAN OF -DO-.** 2 ## R.C.Rev. Nos.52, 53 & 74 of 2021 **BY ADVS. SRI.BASIL MATHEW SRI.NINAN JOHN SMT.SANJANA SARA VARGHESE ANNIE SMT.ANU STEPHEN SMT.ANCY JACOB SMT.RISHLA JABBAR SMT.JEMIMAH GEORGE MATHEW SRI.DIPU JAMES** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 02.11.2021, ALONG WITH R.C.Rev.NOS.53 OF 2021, 74 OF 2021, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:** 3 R.C.Rev. Nos.52, 53 & 74 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021/5TH AGRAHAYANA,1943** **R.C.REV.NO. 53 OF 2021 AGAINST THE JUDGMENT DATED 24.09.2020 IN R.C.A.NO.6 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-VI), KOLLAM AND AGAINST THE ORDER DATED 30.11.2018 IN R.C.(OP) NO.16 OF 2015 OF RENT CONTROL COURT (MUNSIFF), KARUNAGAPPALLY** ## **REVISION PETITIONER:** ## **GOPALAKRISHNAN,** **AGED 63 YEARS, S/O. VELUTHA KUNJU, BUSINESS, KARUNAGAPPALLY MUNICIPALITY, DOOR NO.** **K.P.III/1312, KARUNAGAPPALLY-KOTTARAKARA ROAD, MARKET JUNCTION OPPOSITE TO PWD REST HOUSE, PADANAYARKULANGARA KARA, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK, PIN - 690518.** **BY ADVS.** **SRI.S.JAYAKRISHNAN (KARUNAGAPPALLY) SRI.D.SREEVALLABHAN** ## **RESPONDENT:** ## **ANNAPURNESWARY** **AGED 81 YEARS, W/O. LATE DR. K.G MARTHANDAN, PURNIMA, CORPORATION OF KOLLAM, DOOR NO. 16,860 NEAR DISTRICT HOSPITAL, VADAKKUMBHAGAM, KOLLAM VILLAGE, KOLLAM DISTRICT, REPRESENTED BY HER POWER OF ATTONRNEY HOLDER ANIL MARTHANDAN KANNAT, S/O. DR. K.G. MARTHANDAN, OF -DO-.** 4 R.C.Rev. Nos.52, 53 & 74 of 2021 **BY ADVS. SRI.BASIL MATHEW SRI.NINAN JOHN SMT.SANJANA SARA VARGHESE ANNIE SMT.ANU STEPHEN SMT.ANCY JACOB SMT.RISHLA JABBAR SMT.JEMIMAH GEORGE MATHEW SRI.DIPU JAMES** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 02.11.2021, ALONG WITH R.C.Rev.NOS.52 OF 2021 AND CONNECTED CASES, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:** 5 R.C.Rev. Nos.52, 53 & 74 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021/5TH AGRAHAYANA,1943** **R.C.REV.NO. 74 OF 2021 AGAINST THE JUDGMENT DATED 24.09.2020 IN R.C.A.NO.23 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-VI), KOLLAM AND AGAINST THE ORDER DATED 30.11.2018 IN R.C.P.NO.14 OF 2015 OF RENT CONTROL COURT (MUNSIFF), KARUNAGAPPALLY** ## **REVISION PETITIONER:** ## **ABDUL SAMAD** **AGED 50 YEARS, S/O. HYDROSE KUNJU, SCRAP MERCHANT, SHOP NO.KP 3/1310, KARUNAGAPPALLY-KOTTARAKKARA ROAD, MARKET JUNCTION, OPPOSITE PWD REST HOUSE, PADANAYARKULANGARA KARA, KARUNAGAPPALLY VILLAGE AND TALUK, PINCODE-690 518.** **BY ADVS.** **SRI.PEARSON S.FERNANDEZ SRI.SUKUL KHADER** ## **RESPONDENT:** **ANNAPURNESWARY** **AGED 77 YEARS, W/O. LATE DR.K.G.MARTHANDAN, PURNIMA, DOOR NO.16/860, NEAR DISTRICT HOSPITAL, VADAKKUMBHAGOM, KOLLAM-691 001.** 6 R.C.Rev. Nos.52, 53 & 74 of 2021 **BY ADVS. SRI.BASIL MATHEW SRI.NINAN JOHN SMT.SANJANA SARA VARGHESE ANNIE SRI.DIPU JAMES** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.11.2021, ALONG WITH R.C.Rev.No.52 OF 2021 AND CONNECTED CASES, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:** 7 R.C.Rev. Nos.52, 53 & 74 of 2021 ## **O R D E R** ## Ajithkumar, J. These Rent Control Revision Petitions were filed by the tenants-respondents in the respective Rent Control Petitions on the file of the Rent Control Court (Munsiff), Karunagappally. Eviction was ordered. The appeals filed by the tenants before the Rent Control Appellate Authority (Additional District Judge-VI), Kollam were unsuccessful. Hence these Revision Petitions. 2. The eviction was sought under Section 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent-landlady wanted the petitioners evicted from the respective shop rooms for the purpose of own occupation of her son. The projected need is that he wanted to start a Business Process Outsourcing centre (BPO centre) after reconstructing the existing building. The building has four rooms. It is an old tiled building constructed almost 100 years ago. The respondent proposes to make use of the vacant land available behind the building also for 8 R.C.Rev. Nos.52, 53 & 74 of 2021 reconstruction. The respondent further pleaded that she is able to make such a construction and that she obtained necessary building permit and licence for the purpose. 3. For easy reference, details are tabulated below: |Sl.<br>No|RCR No.<br>before this<br>Court|RCA No.<br>before the<br>Appellate<br>Authority|RCP/RC(OP)<br>No. before the<br>Rent Control<br>Court|Name of the<br>petitioner/<br>tenant|Business in the<br>respective shop<br>room| |---|---|---|---|---|---| |1|52 of 2021|5 of 2019|15 of 2015|Prabhakaran|Earth pot| |2|53 of 2021|6 of 2019|16 of 2015|Gopalakrishnan|C-Class| |3|74 of 2021|23 of 2019|14 of 2015|Abdul Samad|scrap| 4. The petitioners objected to the plea for eviction almost on similar grounds. It was contended that the building, though old, is not dilapidated, requiring reconstruction. The respondent proposes reconstruction only to see that the petitioners are denied the right of first option. The financial capacity and physical ability of the respondent to make such a construction are also challenged. It is further contended that the respondent has in her possession other buildings and properties for making use of by her son for the purpose, if at all, he required it. In fact, having a BPO centre at Ernakulam, 9 R.C.Rev. Nos.52, 53 & 74 of 2021 he would not come to Karunagappally, a place which is not at all suitable for conducting a BPO centre. Thus the bonafides of the respondent is seriously challenged. All the petitioners claimed the benefit of the second proviso of Section 11(3) of the Act as well. 5. The respondent filed 4 petitions for evicting all the 4 tenants as R.C(OP)Nos.13 of 2015, 14 of 2015, 15 of 2015 and 16 of 2015. The respondent-tenant in RC(OP) No.13 of 2015 did not contest and therefore that petition was allowed ex parte. Other three RC(OP)s were tried together. The power of attorney, who is the son of the respondent, for whose benefit eviction was sought, has been examined as PW1. Respective tenants in R.C.(O.P).Nos.14 of 2015 and 16 of 2015 were examined as Rws.1 and 2. RW3 is the power of attorney holder and son of the tenant in R.C.(OP) No.15 of 2015. RW4 is the Commissioner. Exts.A1 to A9, B1, B2, C1, C1(a), C1(b) and C1(b)a to C1(b)y were marked. The Rent Control Court after hearing both sides, ordered eviction under Sections 11(3) and 11(4)(iv) of the Act. The petitioners filed 10 R.C.Rev. Nos.52, 53 & 74 of 2021 respective appeals as shown above, which were dismissed by a common 'order' dated 24.09.2020. 6. Heard Adv.Sri.Pearson S.Fernadez, learned counsel for the petitioner in R.C.R.No.74 of 2021, Adv.Jayakrishnan.S, learned counsel for the petitioners in R.C.R.Nos 52 of 2021 and 53 of 21 and Adv.Sri.Basil Mathew, learned counsel appearing for the respondent. 7. Adv.Sri.Jayakrishnan.S, raised a contention that Additional District Judge-VI, Kollam, who heard and disposed of these appeals was not competent. It is his contention that the District Judge alone has authority to hear a Rent Control Appeal. 8. The Rent Control Appellate Authorities are constituted under Section 18(1) of the Act. It provides that by conferment of powers by a notification issued by the Government on such officers or authorities not below the rank of a Subordinate Judge, Rent Control Appellate Authorities are to be constituted. The Government as per S.R.O.No.1631 of 1989 issued notification conferring powers of the Appellate 11 R.C.Rev. Nos.52, 53 & 74 of 2021 Authority on the District Judges having jurisdiction over the area within which the provisions of the Act have been extended. This aspect was considered by this Court in **Thomas John v. Kochammini Amma** , **[1994 (2) KLT 571]** and rightly held that the words employed in the Government Order, the District Judges having jurisdiction over the areas within which the provisions of said Act have been extended definitely mean that the jurisdiction is conferred on not only the District Judge, but also the Additional District Judges having jurisdiction over the district to which they have been appointed as Additional District Judges. No doubt, Additional District Judge VI, Kollam has jurisdiction over the areas coming within the Revenue District, Kollam. We therefore hold that the contention that Additional District Judge VI, Kollam did not have jurisdiction to hear the appeals is devoid of any merit. 9. Sri.Jayakrishnan.S further contended that the Appellate Authority passed an order and not a judgment and therefore the order would not sustain in law. Judgment and 12 R.C.Rev. Nos.52, 53 & 74 of 2021 order are not defined in the Act. There is no indication in the Act as to whether a judgment or order has to be pronounced by an Appellate Authority while disposing of an appeal. It is true that all provisions of the Code of Civil Procedure, 1908 are made applicable to the Rent Control Court and Appellate Authority. Provisions mentioned in Sections 22 and 23 of the Act alone are specifically made applicable. However, having the appellate powers been conferred upon District Judges, the provisions in the Code concerning appeals can _mutatis mutandis_ be applied to the appeal proceedings before such authorities. Going by the definition of 'judgment' in Section 2(9) of the Code which reads, 'judgment means the statement given by the Judge on the grounds of a decree or order' and the provisions of Order XLI Rule 30 of the Code the Appellate Court has to pronounce a judgment, when it disposes an appeal. It is therefore appropriate for an Appellate Authority constituted under Section 18(1) of the Act to pronounce a judgment. However, to the question whether the impugned ‘order’ suffers from any infirmity on account of captioning it as 13 R.C.Rev. Nos.52, 53 & 74 of 2021 order, our definite answer is, no. Captioning it as an order is only a misnomer and it cannot have the effect of invalidating the judgment. We reject the said contention. 10. Eviction of the petitioners was sought on the common grounds; Section 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The reason for eviction precisely is that the building to which the petition schedule shop rooms form part is very old and the son of the respondent wanted it to be reconstructed for the purpose of starting a BPO centre. Much has been pleaded and much evidence let in on the point whether the petition schedule shop rooms require reconstruction. The need urged being for own occupation of the building after reconstruction, we have to first consider, how far the provisions of Section 11(4)(iv) of the Act interdicts a claim for eviction on the ground of own occupation after reconstruction of the tenanted building. 11. Eviction on the ground of bonafide need may be demanded for (i) the landlord or his dependent wants to occupy the tenanted building/rooms, or (ii) the landlord or his 14 R.C.Rev. Nos.52, 53 & 74 of 2021 dependent wants to occupy the building after reconstruction of the existing tenanted building. The demand may also be, the landlord wants to reconstruct the tenanted building coming under Section 11(4)(iv) of the Act. The instant case comes in the second category of bona fide need and therefore, we are confining our discussion on the position of law with respect to the said category alone. 12. For easy understanding, relevant provisions of Section 11(3) and 11(4)(iv) of the Act are extracted below: “11(3) 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. 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: Provided further that 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 15 R.C.Rev. Nos.52, 53 & 74 of 2021 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:” 11(4)(iv). if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and license, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction: Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has willfully neglected to reconstruct completely the building within such time: Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction: Provided further that the tenant who was evicted shall 16 R.C.Rev. Nos.52, 53 & 74 of 2021 have the first option to have the reconstructed building allotted to him with liability to pay its fair rent.” 13. What Section 11(3) provides is the right of the landlord to get possession of the building if he bona fide needs the building for his own occupation or for the occupation of any dependent member of his family. Building is defined in Section 2(1) of the Act as any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purpose and includes the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut etc. Therefore, the tenanted building takes in the grounds, in other words, land, appurtenant to the building as well. When the landlord wants the building for own occupation, the tenant cannot dictate that the building as such should be put in use. It is the right and prerogative of the landlord to decide whether he should use the building as such or to effect reconstruction and use the new building. For many reasons, a building needs reconstruction; due to the old age of the building, the structure becoming an eyesore to the locality, landlord requires a bigger building, etc. If the existing 17 R.C.Rev. Nos.52, 53 & 74 of 2021 building is not suitable to the purpose of the landlord, it is certainly his right to reconstruct a new structure in a way as to suit his needs and for that purpose he is well within his right to make use of the land appurtenant to the tenanted premises. ## 14. In **George Varghese v. Ammini Cherian [1995** **(2) KLT 763]** what the landlady wanted was eviction of the tenant for demolishing the building to put up a new building on the site for accommodating her son who is a dependent on her. This Court held that when a landlord applies for eviction on two grounds; one under Section 11(3) and the other under Section 11(4)(iv) of the Act, Rent Control Court can stop with the finding that the ground under Section 11(3) has been made out. In such a situation there is no need to proceed further to consider the other ground. ## 15. **Raveendran M.N. and another v. V.V. Sivaprasad** **[2017(5) KHC 240]** is also a case where the landlord needed the buildings for his own occupation, after reconstructing the building, as it was an old and dilapidated 18 R.C.Rev. Nos.52, 53 & 74 of 2021 one. It was held that the claim under Section 11(3) and Section 11(4)(iv) of the Act are distinct and different. But, where the bona fide need for own occupation, under Section 11(3) of the Act, is coupled with claim for reconstruction under Section 11(4)(iv) of the Act and if the claim under Section 11(3) is established, there is no need to make a further enquiry to the proviso to Section 11(4)(iv) or bona fides under Section 11(10) of the Act as the tenant is liable to vacate the premises under Section 11(3) of the Act. 16. We concur with the aforesaid view. We pointed above that this is a case where the landlord wants the building for the occupation of his dependent-son after reconstruction of the existing tenanted building. The landlord never projected the reconstruction as a ground for eviction as provided in Section 11(4)(iv) of the Act; not in the alternative also. We hold that in all such cases the ground for eviction need only be under Section 11(3) and not under Section 11(3) and Section 11(4)(iii) together. 17. This Court in **Haridasan K. and others v. V.K.** 19 R.C.Rev. Nos.52, 53 & 74 of 2021 **Mohanan and others [2021 (3) KLT 396]** struck a note of caution while dealing with the claim for eviction of the tenanted premises for own occupation after reconstruction. It was held that: “If the need projected is for reconstruction of the building, certain protection has been provided for the tenant, while ordering eviction. It is discernible that, going by the scheme of the Act, a tenant, who is compelled to vacate the tenanted premises for the purpose of reconstruction of the building, is entitled to get a space in the newly constructed building allotted to him, upon its reconstruction. This is a statutory protection contemplated under the Act and this cannot be allowed to be bypassed. It is true that, in certain cases the demolition and reconstruction of the building may fall upon the stipulations contained in Section 11(3) of the Act. However while considering the claim of eviction under Section 11(3) in such cases, it should be ensured that such an order is not amounting to denial of the statutory protection to the tenants as contemplated under Section 11(4)(iv) and the order of eviction is strictly coming within the scope of the bona fide need under Section 11(3)”. 20 R.C.Rev. Nos.52, 53 & 74 of 2021 18 It is therefore necessary for the Court to be very cautious while considering a claim for eviction on the reason that the landlord wants the building for own occupation after reconstruction. In such cases question as to whether the building requires reconstruction for the reasons such as, its old age and dilapidation, it becoming unsuitable to the locality where it situates, etc. can have only secondary importance. Nonetheless, the Court should ensure that the need of own occupation is projected by the landlord not with an oblique motive of denying the tenant's right of first option as provided in the 3rd proviso to Section 11(4)(iv) of the Act. 19. With that in mind we shall consider how far we will be able to interfere with the judgment impugned in these revisions. 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 21 R.C.Rev. Nos.52, 53 & 74 of 2021 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 in its discretion. 20. 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 22 R.C.Rev. Nos.52, 53 & 74 of 2021 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. 21. 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 23 R.C.Rev. Nos.52, 53 & 74 of 2021 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. 22. 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 24 R.C.Rev. Nos.52, 53 & 74 of 2021 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 reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 23. 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 25 R.C.Rev. Nos.52, 53 & 74 of 2021 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. 24. 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. 25. Reverting to this case, PW1, Sri.Anil Marthandan is the son of respondent. It is claimed that he is an Engineer having also a degree in Management. Although that fact is not 26 R.C.Rev. Nos.52, 53 & 74 of 2021 admitted in many words, the petitioners admitted that he is now conducting a BPO centre at Ernakulam. The respondent contends that PW1 wants to start a BPO centre at his native place and for that purpose a new building has to be constructed after demoliting the petition schedule shop rooms. Vacant land is available behind the existing building and making use of the entire land, the building is proposed to be constructed. PW1 is the power of attorney of the respondent as well. He deposed in Court regarding the above need and also the respondent's capacity to construct the building. Exts.A3 and A4 fixed deposits for an amount of Rs.6,00,000/- were brought on record apart from the approved building plan and permit Exts.8 and 9. 26. What is the nature of construction proposed by the respondent is evinced from Ext.A8. The petitioners assailed it saying that earlier Ext.A5 was produced as the plan of the proposed building and later Ext.A8 was brought on record showing a structure different from Ext.A5 plan. PW1 explained the difference. Ext.A5 is a plan, which was not 27 R.C.Rev. Nos.52, 53 & 74 of 2021 approved by the local authority for, it was not in conformity to the Building Rules. So, Ext.A8 plan was prepared as per Rules by providing necessary set-back, car parking, etc. and got approved. There is no reason to disbelieve that version. 27. Another point urged is that by retaining the petition schedule shop rooms itself, the building as devised in Ext.A8 can be constructed in the vacant land available in the rear side. How a construction is to be carried out is the freedom of the landlord. When, the appurtenant land is abutting public roads on the southern and western sides, the building can be constructed by providing set-back on both sides, as stipulated by the Rules only. The stand of the landlady that in order to construct the building as per Ext.P8 plan, the entire land is required, need be doubted in the above circumstances. 28. In **Shiv Samp Gupta v. Dr.Mahesh Chand Gupta [1999 KHC 723: (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 28 R.C.Rev. Nos.52, 53 & 74 of 2021 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 Apex Court reiterated in this view in **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [2005 KHC 413: (2005) 2 SCC 476].** In **Deena Nath v. Pooran Lal [2001 KHC 1573: (2001) 5 SCC 705]** the Apex Court held that a 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. In **Ammu v. Nafeesa [2015 (5) KHC 718: 2015 (4) KLJ 762]** 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 29 R.C.Rev. Nos.52, 53 & 74 of 2021 contra. 29. After referring to the aforementioned decisions a Division Bench of this Court in **Gireesh Babu T.P. v. Jameela and others [2021 KHC 650]** (one among us), held that: 'In order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act but, of course, subject to the first and second provisos to Section 11(3).' 30. The learned counsel appearing for the petitioners would contend that the landlady did not mount the box, the fixed deposits were made on the eve of examination of PW1 and the proposal to reconstruct the building is only a ruse for 30 R.C.Rev. Nos.52, 53 & 74 of 2021 eviction. In fact, the building does not require reconstruction as it is in a fit condition. A discrepancy regarding the area of land shown in Ext.A8 from the pleadings is also pointed out. In Ext.A8, the area is shown as 4.93 Ares, whereas the area mentioned in the eviction petitions is 3.07 Ares. 31. As regards the requirement of examination of the landlord, as a witness, the law is settled. A fact can be proved in many ways. It is not always mandatory that the landlord should mount the box to state regarding the need. If satisfactory evidence has come on record, the Court can definitely record a finding that the need is bona fide. In this respect, the Apex Court in **Smt.Ramkubai since deceased by L.R.s and others v. Hajarimal Dhokalchand Chandak and others, [AIR 1999 SC 3089]** held that when the building is sought to be required for the benefit of son and he is examined as a witness, who is also the power of attorney holder of the landlady, there is no requirement of the landlady herself coming as a witness. This principle was followed by this Court in **Ratheesh Kumar v. Jithendra Kumar, [2005** 31 R.C.Rev. Nos.52, 53 & 74 of 2021 **(2) KLT 669]** and **Sudheer v. Raman Menon, [2018 (1)** **KLT 791]** . Hence, the contention of the petitioners that the claim for eviction should be denied altogether since the landlady was not examined as a witness, does not sound good. 32. PW1 categorically deposed regarding the need. He asserted that he would help his mother for carrying out the construction. When he is the person in need of the building, it is only natural that he takes initiative and oversees the construction. There is no reason to doubt the bona fides of the landlady. The contentions that for creation of evidence only, the fixed deposits were made and a Will was executed by the respondent in favour of PW1, do not assume any importance in the circumstances of this case. 33. The petitioners took up a plea that the respondent can conveniently construct the building on the vacant land available behind the existing structure and in that view of the matter, the 1st proviso is attracted. It is not specifically pleaded that any vacant building is in the possession of the 32 R.C.Rev. Nos.52, 53 & 74 of 2021 respondent. The Apex Court as well as this Court repeatedly held that it is the absolute burden of the tenant to plead and prove the requirements of the 1st proviso to Section 11(3). Reference may be made in this respect to **Dineshan Pillai v. Joseph** [ **2019 (3)KLT 104], Vasantha Mallan v. N.S. Aboobacker Siddique and others [2000(1) KHC 21] and Kunju v. Fathima [2014 (3) KLT 563].** 34. The respondent has sufficient explanation as regards the vacant land behind the tenanted premises. The building is abutting the public road on two sides. We pointed out above that when new building is reconstructed, the necessary set back from the public roads is to be provided and necessary area for parking also to be earmarked. Ext.A8 plan contains such provisions. There is no reason to doubt that the entire land including the area being occupied by the existing building is required for the proposed reconstruction. The difference in the area of the property pointed out does not have any significance in the above circumstances. Therefore, we hold that the first proviso to Section 11(3) is 33 R.C.Rev. Nos.52, 53 & 74 of 2021 not available to the aid of the petitioners. 35. The finding of the authorities below on the second proviso to Section 11(3) also is well reasoned. It is true that the petitioners are not doing large scale business. The businesses are in clay products, stationary goods or scrap materials. But their burden to maintain accounts of their business income and to prove the fact that the income therefrom is the main source of their livelihood is absolute. Ration card, Ext.B1 is not helpful to prove that fact. Petitioners did not discharge that burden. Coming to the second limb of the second proviso to Section 11(3), there is only bald statements by the petitioners that no vacant building are available in the locality. That bald denial is not enough to prove the non-availability of rooms on rent in the locality. The tenant cannot insist that the alternative room should be in the vicinity. If vacant rooms are available in the locality, the fact that such rooms fetch more rent is no reason to find the second proviso in favour of the tenant. 36. In **Ammeer Hamsa v. Ramabhadran and** 34 R.C.Rev. Nos.52, 53 & 74 of 2021 **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 Act are conjunctive and the burden of proof is on the tenant. This principle was reiterated in the decisions followed, namely, **Narayanan Nair v. Pachumma [1980 KHC 77], Prasannan v. Haris [2005 KHC 580]** and **Vineethan v. Fathima and others [2016 (1) KHC 631]** . The principle was more succinctly explained in **Gireesh Babu T. (supra)** in the following words: '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 to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes 35 R.C.Rev. Nos.52, 53 & 74 of 2021 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.' 37. After considering the evidence and circumstances of this case in the light of the law discussed above we are of the view that eviction ordered by the Rent Control Court under Section 11(3) of the Act, which now stands confirmed by the Appellate Authority, is not perverse, patently illegal or 36 R.C.Rev. Nos.52, 53 & 74 of 2021 suffering from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below. The Revision Petitions are devoid of merits and the same are accordingly dismissed. No order as to costs. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** PV/DKR