R.C.R.No.198 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944** **RCREV. NO. 198 OF 2011** **AGAINST THE JUDGMENT DTD 10.12.2010 IN RCA 84/2008 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT), KOZHIKODE** **AGAINST THE ORDER DTD 8.4.2008 IN RCP 20/2005 ON THE FILE OF RENT CONTROL COURT (PRINCIPAL MUNSIFF COURT), KOYILANDY** ## **REVISION PETITIONERS/RESPONDENTS 2 AND 6 IN RCA/** ## **RESPONDENTS 2 AND 6 IN RCP:** - ***1 PARAPPIL CHERIYA PURAYIL VEETTIL ABDULLA KUTTY, S/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. (DIED)** - **2 PARAPPIL CHERIYA PURAYIL VEETTIL BASHEER S/O.IBRAYI, PARAPPIL CHERIYA PURAYIL, PANTHALAYANI AMSOM, KOYILANDY, KOZHIKODE DISTRICT-673 305.** **BY ADVS.SRI.V.V.ASOKAN SRI.R.JAIKRISHNA SMT.RUKHIYABI MOHD KUNHI SRI.K.B.SIVARAMAKRISHNAN** **(1ST PETITIONER DIED. LRs IMPLEADED AS ADDL.R11 TO R16)** ## **RESPONDENTS/APPELLANTS IN RCA/PETITIONERS 2 TO 4 & RESPONDENTS 1,3** ## **TO 5 AND 7 TO 9 IN THE RCP:** - **1 KAYAMRAKANDY NABEESA** - **W/O.NARACHUMMANTAKATH MOIDU, THIRUVANGOOR AMSOM AND KAPPAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - **2 ANWARSADATH, S/O.NARACHUMMANTAKATH MOIDU, THIRUVANGOOR AMSOM AND KAPPAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** 2 **R.C.R.No.198 of 2011** - **3 SAJITHA, D/O.NARACHUMMANTAKATH MOIDU THIRUVANGOOR AMSOM AND KAPPAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - **4 PARAPPIL CHERIYAPURAYIL UMMACHU UMMA PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***5 PARAPPIL CHERIYAPURAYIL VEETTIL ALI S/O.ALI KOYA, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***6 PARAPPIL CHERIYAPURAYIL VEETTIL HASHIM S/O.ALI KOYA, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***7 PARAPPIL CHERIYAPURAYIL VEETTIL MUHAMMED, S/O.ALI KOYA, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***8 PARAPPIL CHERIYAPURAYIL VEETTIL IMBICHIPATHU, D/O.ALI KOYA, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***9 PARAPPIL CHERIYAPURAYIL VEETTIL NAFEESA, D/O. ALI KOYA, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***10 PARAPPIL CHERIYAPURAYIL VEETTIL ALI S/O.ALI KOYA, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** *** (ABOVE NAMES & ADDRESSES OF R5 TO R10 CORRECTED AS FOLLOWS)** 3 **R.C.R.No.198 of 2011** ***5 PARAPPIL CHERIYAPURAYIL VEETTIL ALI S/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673305.** - ***6 PARAPPIL CHERIYAPURAYIL VEETTIL HASHIM S/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673305.** - ***7 PARAPPIL CHERIYAPURAYIL VEETTIL MUHAMMED, S/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673305.** ***8 PARAPPIL CHERIYAPURAYIL VEETTIL IMBICHIPATHU, D/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673305.** ***9 PARAPPIL CHERIYAPURAYIL VEETTIL NAFEESA, D/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673305.** - ***10 PARAPPIL CHERIYAPURAYIL VEETTIL SUBAIDA, D/O.IBRAYI, PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673305.** **(THE NAMES & ADDRESSES OF RESPONDENT NOS.5 TO 10 ARE CORRECTED AS ABOVE VIDE ORDER DT.1/2/2012 IN IA 250/2012 IN RCR 198/2011)** - **ADDL.11 IMBICHIPATHUMMA,** **WIDOW OF ABDULLAKUTTTY, SANSAR, THAZHANGADI ROAD, KOYILANDI - 673 620** **ADDL.12 NAZEEMA, D/O ABDULLAKUTTTY, SANSAR, THAZHANGADI ROAD, KOYILANDI - 673 620** 4 ## **R.C.R.No.198 of 2011** |**ADDL.13**|**RAVUF,**| |---|---| ||**S/O ABDULLAKUTTTY, SANSAR,**| ||**THAZHANGADI ROAD, KOYILANDI - 673 620**| |**ADDL.14**|**ARIFA,**| ||**D/O ABDULLAKUTTTY, SANSAR,**| ||**THAZHANGADI ROAD,**| ||**KOYILANDI - 673 620**| |**ADDL.15**|**SABIRA,**| ||**D/O ABDULLAKUTTTY**| ||**SANSAR, THAZHANGADI ROAD,**| ||**KOYILANDI - 673 620**| |**ADDL.16**|**SERINA,**| ||**D/O ABDULLAKUTTTY,**| ||**SANSAR, THAZHANGADI ROAD,**| ||**KOYILANDI - 673 620**| ||**BY ADV SRI.B.V.JOY SANKER**| ||**(1ST PETITIONER DIED AND LRs IMPLEADED AS ADDL.R11**| ||**TO R16. VIDE ORDER DT. 8/8/2017 IN IA 602/16)**| **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 **R.C.R.No.198 of 2011** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.198 of 2011** **------------------------------------------Dated this the 12[th] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 10/12/2010 in R.C.A.No.84/2008 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode, which appeal is against the order dated 08/04/2008 in R.C.P.No.20/2005 on the file of the Rent Control Court (RCC), Koyilandy. The revision petitioners are respondents 2 and 6 in the appeal as well as in the R.C.P. The respondents herein are the appellants in the appeal and petitioners 2 to 4 and respondents 1, 3 to 5 and 7 to 9 in the R.C.P. The parties and documents will be referred to as described in the R.C.P. 2. R.C.P. No.20/2005 was filed by the original petitioner claiming eviction under Sections 11(2)(b) and 11(3) of the Act. The need alleged was that the petitioner required the tenanted premises _bona fide_ for starting a business in stationery. The respondents who are the wife and children of the 6 ## **R.C.R.No.198 of 2011** original tenant, disputed the need alleged and contented that is a mere ruse for eviction. The RCC by order dated 27/03/2006 allowed the R.C.P. under both the grounds. The respondents filed R.C.A.No.98/2006 challenging the order of eviction. During the pendency of the appeal, the original petitioner passed away. Hence his wife and children were impleded as additional petitioners 2 to 4. The additional petitioners filed an application seeking amendment of the R.C.P. to bring in pleadings to the effect that even after the death of the original petitioner, the need survives and that the second petitioner, the wife of the original petitioner, _bona fide_ requires the petition schedule room for starting a stationery business, which she intends to do with the assistance/help of her brother. The application was allowed by the RCAA. The respondents filed additional counter denying the need alleged and reiterating the contention that it is a mere ruse for eviction. As per order dated 26/07/2007, the appeal was allowed by which the order of eviction of the RCC under Section 11(3) was set aside and the matter was remanded for the purpose of adjudicating the _bona fides_ of the claim of the second petitioner. The RCAA affirmed the finding of the RCC that the respondents are not entitled to the benefit of the second proviso to Section 11(3). R.C.R.No.362/2007 filed by the tenants against the judgment in R.C.A.No.98/2006. This Court by order dated 18/03/2008 held that the 7 ## **R.C.R.No.198 of 2011** question whether the legal heirs can pursue the claim for eviction under Section 11(3) of the Act on the basis of the need urged by the wife of the deceased-landlord was a matter which required to be decided by the RCC after taking evidence. The finding of the RCC and the RCAA that the tenants are not entitled to the protection under the second proviso to Section 11(3) was affirmed. Holding so, the matter was remanded to the RCC. 3. Before the remand, the original petitioner had been examined as PW1 and Exts.A1 to A6 had been marked. The sixth respondent in the RCP was examined as RW1 and Exts.B1 to B6 had been marked. Pursuant to the remand, the second and fourth petitioners as well as the brother of the second petitioner were examined as PWs.2 to 4 respectively. No further oral evidence was adduced by the respondents after the remand. Exts.B7 to B9 were marked on the side of the respondents after the remand. On a consideration of the oral and documentary evidence, the RCC found that the need urged by the second petitioner, the widow of the first petitioner, would survive. However, it found that the need alleged is without any _bona fides_ and hence dismissed the R.C.P. By the impugned judgment, the RCAA in R.C.A.No.84/2008 reversed the order of dismissal of the RCC and has ordered eviction under Section 11(3). Aggrieved, the respondents-tenants have come up in revision. 8 ## **R.C.R.No.198 of 2011** 4. The only point that arises for consideration is, whether the findings of the RCC or the RCAA suffer from any illegality, irregularity or impropriety. 5. Though service has been completed against the respondentslandlords, none of them have chosen to appear. Hence the learned counsel appearing for the appellant-tenant alone was heard. 6. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity, or propriety of the order or proceedings of the RCAA. It is no doubt true that this Court sitting in revision, cannot convert itself into an evidence collecting or fact finding court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied on irrelevant consideration, ignored valuable items of evidence or applied wrong principles of law. As held by the Constitution bench in **Hindustan Petroleum Corporation Ltd v. Dilbahar Singh, AIR 2014 SC 3708** _**,**_ a finding of fact recorded by the RCC or the RCAA if perverse, or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, then it is open to correction, because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under 9 ## **R.C.R.No.198 of 2011** the Act is entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself of the correctness or legality or propriety of any decision or order impugned before it. Therefore, we will consider whether the findings recorded by the RCAA is in anyway perverse or has been arrived at without consideration of the material evidence or whether it has misread the evidence or whether the findings are grossly erroneous. 7. In the amended R.C.P., the case pleaded is that the second petitioner wants to conduct a stationery business in the tenanted premises in which venture, her brother, namely, PW4 would help/assist her. The second petitioner when examined as PW2 in the cross examination _inter alia_ deposed thus - She decided to start the business as she would get the assistance/help of Muhammed Koya. Her husband died unexpectedly and hence the reason why she had to seek the help of Muhammed Koya. In her community, most of the women wear pardha _._ Muslims in Koyilandy are orthodox muslims. Normally Muslim ladies wearing pardha in Koyilandy will not go out and do business. Vacant possession is sought for, for doing business. The need is alleged because of the pendency of the case. She has understood that she would be able to succeed in the case if only she takes up such a contention. To a suggestion put to her that she had no intention to 10 ## **R.C.R.No.198 of 2011** start a business and that such a contention has been taken up only for the purpose of winning the case, she answered that she would do the business and that her brother would help her. She also deposed that now she is conducting the case for the need of her brother. (PW2 at pages 4 and 5) (ഞ�ന ഈ കചവട� ച�യ�ന തയ�റ�യത� മഹമദ� കക�യയചട സഹ�യ� ക�ടച�നത�ന�ല�ണ�. എച! ഭര$�വ� ച%ച&ന� �രണച(&ത� ചക�ണ�ണ� മഹമദ� കക�യയചട സഹ�യ� കതകടണ�വനത�. എച! സമദ�യ$�ലച%&വര ��കവര� %രധര�കനവര�ണ�. . ചക�യ�ല�ണ�യ�ല ഇസ�� കട�ബങള %�രമര8മള വ:ടക�ര�ണ� ചക�യ�ല�ണ�യ�ല ഇസ�� സ:കള %ര- ധര�കനവര, സ�ധ�രണ പറച� ക%�യ� കചവട� ച�യ�റ�ല; ഞങളക� കചവട� ച�യ�ന�യ�ണ� ഒഴ�ഞ ക�&ണ� എന %റയനത�. കകസളത� ചക�ണ�ണ� ഞങളക� കചവട� ച�യണ� എന %റയനത�. അങ�ചന കകസ�ല ഞങള വ�ദ�ച�കല വ�ജയ� ഉണ�ക എന� . ഞ�ന �നസ�ല�ക�യ�ടണ� എന�ക� കചവട� ച�യ�ന ഉക-ശ��ല എന� കകസ�ല വ�ജയ� ഉണ�ക�ന�യ� കളവ�യ� അങ�ചന %റയകയ�ണ� എന %റഞ�ല ആങള സഹ�യ�ക� ഞങള കചവട� ച�യ�. ആങളയചട ആവശ8$�ന�ണ� ഇക(�ള കകസ� നടതനത�.) Realising the damage done, the petitioner's counsel is seen to have made a vain attempt to save the case by putting a leading question in the reexamination. To a question as to the person for whom the eviction is sought, PW2 answered that it was for her need. Then a leading question was put to her, that is, whether she meant that her brother would assist her in the business, to which she answered in the affirmative. (ആരക� കചവട� 11 ## **R.C.R.No.198 of 2011** ച�യ�ന�യ�ണ� മറ� ഒഴ�ഞ� ക�&ണ� എന� %റയനത� (?) ഞങളക� കചവട� ച�യ�ന�യ�ണ� (A). ആങള സഹ�യ�ക� എന�ണ� ന�ങള ഉക-ശ�ചത� (?) അചത. (A). PW2 at page 6). Answers elicited by asking leading questions in the chief or reexamination are liable to discarded or eschewed. ( **Varkey Joseph v. State of Kerala, rep. by C.I. of Police).** 7.1. The daughter of PW2, examined as PW3, deposed that the room is required for the purpose of starting a business for herself and her mother. PW4, the brother of PW2, when examined deposed that even when the original petitioner was alive, he had the intention/desire to start a business in the tenanted premises. On a further examination he deposed that around ₹50,000/- is required for starting the business, which amount would be given by his sister. [അള�യന (ഒന�� ഹരജ�ക�രന) ഉളക(�ള തചന എന�ക� ഈ കടയ�ല കചവട� ച�യ�ന ഉക-ശ� ഉണ�യ�രന. (page 2) ..... Stationery കട തടങവ�ന 50,000 ര% കവണ� വര�. അത� സകഹ�ദര� നലക� (page 3)]. Therefore a reading of the deposition of PWs.2 and 4 gives an impression that it is PW4 who intends/wants to start the business and not PW2 as alleged in the R.C.P. Therefore the RCC was justified in concluding that the petitioners failed to prove the _bona fides_ of the need alleged in the petition _._ The RCAA went wrong in appreciating the evidence, rather it misread the evidence on record and thus went wrong in its conclusion. Hence an interference into the 12 ## **R.C.R.No.198 of 2011** finding of the RCAA is required. In the result, the rent control revision is allowed and the impugned judgment in R.C.A.No.84/2008 is set aside. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/