R.C.R.No. 94 of 2021 (RCR 94/2021) Raghavan v. Dr. Susamma Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 RCREV. NO. 94 OF 2021** **AGAINST THE ORDER DATED 27.02.2021 IN RCA 1/2020 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT) KOLLAM CONFIRMING THE ORDER DATED 19.07.2019 IN RCOP 1/2016 OF THE RENT CONTROL COURT (MUNSIFF COURT),** **KARUNAGAPPALLY, KOLLAM** ## **REVISION PETITIONER/APPELLANT/1ST RESPONDENT (TENANT):** **RAGHAVAN AGED 63 YEARS S/O. MADHAVAN KUTTY, RESIDING AT KMC 169/17, AANIKATTU BETH SYEDIL, PADANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY P.O.** **BY ADV A.JANI(KOLLAM)** ## **RESPONDENTS/RESPONDENTS/PETITIONERS 1 & 2 AND 2ND** **RESPONDENT:** **1 DR. SUSAMMA MATHEW AGED 77 YEARS W/O. LATE GEORGE A. MATHEW, RESIDING AT AANIKATTU BETH SYEDIL, PADANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY P.O., PIN-690 518** **2 DR. SUJITH EMMANUVEL GEORGE, AGED 39 YEARS** R.C.R.No.94 of 2021 2 **S/O. LATE GEORGE A. MATHEW, RESIDING AT AANIKATTU BETH SYEDIL, PADANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY P.O., PIN-690 518** **3 DR. SUKU MATHEW GEORGE, AGED 46 YEARS 4 MINISTER DRIVE, BOWDON CHESHINE, WA 143 FA, UNITED KINGDOM FROM AANIKATTU BETH SYEDIL, PADANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY P.O., PIN-690 518** **BY ADVS. UMMUL FIDA C.IJLAL** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31.08.2021, THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING:** R.C.R.No.94 of 2021 3 ## **ANIL K. NARENDRAN & K. BABU, JJ.** **-------------------------------------R.C.R.No.94 of 2021** **--------------------------------------** Dated this the 21[st] day of October, 2021 ## **O R D E R** ## **K. Babu, J.** This Rent Control Revision arises out of the order dated 19.07.2019 of the Rent Control Court (Munsiff), Karunagapalli, in R.C.O.P.No.1 of 2006 which stands confirmed by the judgment dated 27.02.2021 passed by the Rent Control Appellate Authority, (District Judge), Kollam in R.C.A.No.1 of 2020. The respondents herein, the landlords of the petition schedule building, filed the above referred Rent Control Petition seeking eviction of the petitioner-tenant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as 'the Act'). 2. The petition schedule building originally belonged to late Dr.George A Mathew and his wife, the respondent No.1. The landlords bona fide require the petition schedule building for starting a Multi Specialty Hospital. According to the landlords, R.C.R.No.94 of 2021 4 with effect from 06.01.2010 the building has been in the possession of the petitioner-tenant. On 01.09.2014 by way of Ext.A1 registered lease agreement, the lease was renewed for a further period of 11 months at a monthly rent of Rs.500/-. The tenant committed default in paying the rent in respect of the building with effect from 01.04.2015. 3. The petitioner-tenant resisted the claim of the landlords contending that he started living with the family of the landlords at the age of 13 and he was brought to the building in question by the husband of respondent No.1 as his servant. The petitioner was managing the Hospital run by Dr.George Mathew and his family. Dr.George Mathew had promised the petitioner that he would give 5 cents of property in the area where the petition schedule building situates. After the death of Dr.George Mathew, respondent No.1 and other members of their family promised to execute a sale deed in respect of the land and building, but instead of executing the sale deed as promised, they fraudulently obtained his signature in a rent deed by misrepresenting that its execution was necessary for the purpose R.C.R.No.94 of 2021 5 of transferring the property in his favour. The petitioner denied the existence of landlord-tenant relationship. 4. On the side of the landlords, PW1 was examined and Exts.A1 to A4 were marked. On the side of the petitioner-tenant, RW1 was examined and Exts.B1 to B4 were marked. 5. After considering the rival contentions and the materials placed on record the Rent Control Court by order dated 19.07.2019 directed the petitioner to vacate the building holding that the denial of landlord-tenant relationship raised from the part of the petitioner is not bona fide and that the landlords could establish that the need projected from their side is genuine and bona fide and further that the claim of the landlords is not hit by the first proviso to Section 11(3) of the Act and also that the petitioner-tenant is not entitled to the protection contained in the second proviso to Section 11(3) of the Act. The Rent Control Court further held that the petitioner committed default in paying the rent arrears due to the landlords. 6. The petitioner-tenant challenged the order of eviction dated 19.07.2019 passed by the Rent Control Court, R.C.R.No.94 of 2021 6 Karunagapalli, before the Rent Control Appellate Authority, Kollam. By judgment dated 27.02.2021 the Rent Control Appellate Authority dismissed the appeal confirming the findings of the Rent Control Court. 7. Feeling aggrieved by the order of eviction under Sections 11(2) and 11(3) of the Act, the petitioner-tenant is before this Court in this Rent Control Revision, filed under Section 20 of the Act. 8. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords. 9. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act, which now stands confirmed by the judgment of the Rent Control Appellate Authority. 10. The challenge of the petitioner-tenant on the claim put forward by the respondents-landlords is on the foundation that there existed no landlord-tenant relationship between the R.C.R.No.94 of 2021 7 parties. According to the petitioner-tenant, at the age of 13 he joined the family of the landlords as a servant and the Manager of the Hospital run by them. Dr.George Mathew, the husband of the 1[st] respondent, had offered to give him 5 cents of property in the area where the petition schedule building is situated. He pleaded that the alleged rent deed (Ext.A1) has been fraudulently executed by way of misrepresentation. 11. The learned counsel for the petitioner, relying on the decision of Full Bench of this Court in **Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250]** , contended that the Rent Control Court has no jurisdiction under Section 11 of the Act in view of the denial of landlord-tenant relationship between the parties by the petitioner. 12. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per the first proviso to Section 11(1), nothing contained in this Section shall R.C.R.No.94 of 2021 8 apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act. As per the second proviso to Section 11(1), where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this Section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 13. In **Parthakumar** (supra), the Full Bench of this Court held thus: “28.The legislature therefore felt that only bonafide denial of title or a bonafide claim for permanent tenancy should alone divest the Special Tribunals of their jurisdiction under Section 11of the Act. It is hence stipulated that the denial of title/claim for permanent tenancy must be bonafide. The Tribunal's jurisdiction is only to decide whether the denial of title or claim for permanent tenancy is bonafide. It is not expected to and does not have the jurisdictional competence to enter a finding whether the denial of title is valid or not. It has only jurisdiction to decide whether the denial of title is bona fide or not. If it is bona fide, the landlord can sue for eviction before the civil court. If it is not bonafide, the Special Tribunal can proceed to exercise its jurisdiction after recording a finding that the denial is not bonafide. Whether the denial of title is bona fide or not has to be decided by the Rent Control R.C.R.No.94 of 2021 9 Court considering the nature of the contentions raised and the materials placed before it. This is a jurisdictional question and if raised must normally be decided by the Tribunal before assuming jurisdiction.” (underline supplied) 14. It is no longer _res integra_ that the Tribunal's jurisdiction is only to decide whether the denial of title or claim for permanent tenancy is bona fide and if the denial is bona fide the landlord can sue for eviction before the civil court. If it is not bona fide the Special Tribunal can proceed to exercise its jurisdiction. 15. In support of the pleadings on the part of the respondents-landlords, the 2[nd] respondent gave evidence as PW1. PW1 gave evidence that on 06.01.2010 they leased out the building to the petitioner-tenant for his residential purpose and on 01.09.2014 Ext.A1 lease agreement was executed renewing the lease agreement for a further period of 11 months at a monthly rent of Rs.500/-. PW1 also gave evidence that the tenant kept the rent in arrears with effect from 01.04.2015. 16. Petitioner-tenant gave evidence as RW1 in support of his pleadings. RW1, deposed that he joined Dr.George Mathew, R.C.R.No.94 of 2021 10 the husband of the 1[st] respondent as his servant at the age of 13 and he had offered to give him 5 cents of land where the petition schedule building is situated. RW1 further stated that Ext.A1 lease agreement was executed by way of misrepresentation and playing fraud on him. The further case of the petitioner-tenant is that he is an illiterate person not in a position to understand the contents of Ext.A1. 17. The learned counsel for the petitioner contended that the evidence available would lead to the conclusion that the respondents were in a dominating position as far as the petitioner was concerned and that they had misrepresented him to put his signature in Ext.A1 deed under the pretext that it was required for transferring the petition schedule property in his favour. The learned counsel relied on Exts.B1 and B4 ration cards to substantiate his contention. Ext.B1 ration card, issued in favour of the 1[st] respondent, includes the names of two daughters of the petitioner-tenant. Ext.B4 is a ration card issued in favour of the petitioner-tenant. 18. The learned counsel for the respondents contended R.C.R.No.94 of 2021 11 that the materials placed before the court would show that the petitioner was only working as a servant and he had been residing in a quarters on the premises where the petition schedule building is situated. The tenant, while giving evidence as RW1, admitted that he had been residing in the quarters when the petition schedule building was under reconstruction. To a specific question as to whether the names of his daughters were included in Ext.B1 ration card issued in favour of respondent No.1 at the time when he had been residing in the quarters on the premises, he had no answer. Ext.B4 is a ration card issued in the name of the petitioner-tenant in the year 2017. The building number mentioned in Ext.B4 is 1645 of Ward No.17 of Karunagapally Municipality. The building number referred to in Ext.A1 lease deed in respect of the petition schedule property is 169/17. 19. It appears from the evidence on record that the petitioner had been maintaining a very close connection with the family of the respondents. It may further appear that he was in a position of active confidence with the respondents. When fraud, R.C.R.No.94 of 2021 12 misrepresentation or undue influence are alleged by a party, though normally the burden is on him to prove such fraud, undue influence or misrepresentation, but when a person is in a fiduciary relationship with another and latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position and he had to prove that there was fair play in the transaction and that the transaction was genuine and bona fide. See: **Krishna Mohan Kul @ Nani Charan Kul and another v. Pratima Maity and others [(2004) 9 SCC 468]** . 20. The principal question to be considered is whether the propounders/respondents could establish that the transaction in respect of Ext.A1 lease agreement is genuine. 21. Respondents-landlords specifically pleaded that the petitioner-tenant duly executed Ext.A1 lease deed. PW1 gave evidence in support of their pleadings. The petitioner admitted in his evidence that at the time of execution of Ext.A1 none of the respondents were present along with him. The petitioner claimed that he had enough experience as the manager of the properties R.C.R.No.94 of 2021 13 of respondents. His case is that he executed Ext.A1 on the belief that it was an assignment deed in respect of 5 cents of land in his favour. We find it difficult to accept such a contention as it was quite unnatural that an assignment deed would be executed without the presence of the respondents-landlords. 22. Moreover, Ext.A1 being a registered document, there is always a presumption that it is validly executed. {See: **Prem Singh and others Birbal and others [(2006) 5 SCC 353]** )}. 23. The petitioner failed to explain the circumstances in which he happened to subscribe his signature in Ext.A1. 24. Yet another circumstance that goes against the revision petitioner is that statutory notice in the Rent Control Proceedings (Ext.A2) was served on him in November, 2015 wherein there was specific mention of the execution of Ext.A1 lease deed for which no reply was caused to be issued by him. Notice in the Rent Control Petition was served on 07.01.2016 and he submitted his objection only on 18.07.2017 even after getting legal assistance. 25. The contention of the petitioner-tenant that he is R.C.R.No.94 of 2021 14 illiterate is also not fortified by the circumstances, as the proof affidavit filed by him before the court was not in the manner required for the execution of such affidavit by an illiterate person. 26. The respondents-landlords have succeeded in proving absence of fraud, misrepresentation or undue influence in the execution of Ext.A1 lease deed and that the transaction was genuine. Considering all these relevant aspects, the Rent Control Court and the Appellate Authority entered into a conclusion that the denial of landlord-tenant relationship between the parties is not bona fide. We find no reason to interfere with such finding. 27. As per Section 11(3) of the Act, 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. As per the first proviso to Section 11(3), 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 R.C.R.No.94 of 2021 15 Rent Control Court is satisfied that for special reasons, in any particular case, it will be just and proper to do so. As per the second proviso to Section 11(3), 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 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. 28. 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 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 concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. The bona fide R.C.R.No.94 of 2021 16 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. {see: **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476], Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222], Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** } 29. In **Ammu v. Nafeesa [2015 (5) KHC 718]** 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 contra. 30. The evidence of PW1 is convincing enough to show that the need projected from the part of the landlords is genuine and bona fide. There is nothing to show that the need projected is a mere fanciful or whimsical desire. The need is an outcome of a sincere and honest desire. 31. On the question of first proviso to Section 11(3) of the R.C.R.No.94 of 2021 17 Act, the petitioner has no case that the landlords are in possession of any other building in the same city, town or village sufficient to accommodate the projected need. 32. The building in question was used for a residential purpose. So the protection contained in the second proviso to Section 11(3) of the Act has no applicability. Moreover, it is trite that it is for the tenant to prove the circumstances warranting existence of the twin conditions contained in the second proviso. The tenant failed to establish that he is entitled to the protection contained in the second proviso to Section 11(3) of the Act. 33. While considering the claim of eviction on the ground of arrears of rent, the learned Appellate Authority recorded the following finding: “The respondent does not have a case that he paid any amount towards rent. As stated above, his contention is that he never occupied the building for rent. When it is found that he was a tenant of the said building and he denied the landlord-tenant relationship without any bona fides, there is no reason to reject the claim of the petitioners that the rent fell in arrears from the day showed in the petition, especially when the evidence tendered by PW1 in this regard remains unchallenged.” 34. We find no reason to interfere with the finding recorded by the Rent Control Court and the Rent Control Appellate Authority on the ground of eviction under Section 11(2) R.C.R.No.94 of 2021 18 of the Act. 35. 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. 36. 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 reappreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High R.C.R.No.94 of 2021 19 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 reappreciating 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. 37. 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 R.C.R.No.94 of 2021 20 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. 38. 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 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 R.C.R.No.94 of 2021 21 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 that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. 39. 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 R.C.R.No.94 of 2021 22 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. 40. 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. The result of the above discussion is that the order of eviction passed against the tenant by the Rent Control Court and affirmed by the Appellate Authority requires no interference in R.C.R.No.94 of 2021 23 exercise of the revisional jurisdiction of this Court. Therefore, the Rent Control Revision stands dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AS