Satheesh Kumar v. Moideen Haji and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 23[RD] DAY OF JANUARY 2023 / 3RD MAGHA, 1944 RCREV. NO. 21 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT IN RCA NO.4 OF 2017 DATED 31.01.2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI / II ADDITIONAL MACT, MANJERI CONCURRING WITH THE COMMON ORDER IN RCP NO.60 OF 2014 DATED 06.10.2016 OF MUNSIFF COURT, MANJERI ``` ## **`REVISION PETITIONER/RESPONDENT/RESPONDENT:`** ``` SATHEESH KUMAR AGED 46 YEARS S/O PADMAVATHI AMMA, CHERUNGAL HOUSE, VALLUVAMBRAM AMSOM, PULLUR DESOM, ERNAD TALUK,MALAPPURAM DISTRICT-676517. BY ADV E.C.AHAMED FAZIL ``` ## **`RESPONDENTS/APPELLANTS/PETITIONERS:`** ``` 1MOIDEEN HAJI AGED 75, S/O PARATHODI ABDULLAH, KARUVAMBRAM AMSOM, KIDANGAZHI DESOM, NARUKARA, ERNAD TALUK, MALAPPURAM DISTRICT-676123. ``` - **`2 PATHUR PATHUMMA AGED 67 YEARS, W/O MOIDEEN HAJI, KARUVAMBRAM AMSOM, KIDANGAZHI DESOM, NARUKARA, ERNAD TALUK, MALAPPURAM DISTRICT676123.`** R.C.Rev.No.21 of 2021 -: 2 :- ``` 3MUHAMMED RAFEEQ AGED 40 YEARS, S/O MOIDEEN HAJI, KARUVAMBRAM AMSOM, KIDANGAZHI DESOM, NARUKARA, ERNAD TALUK, MALAPPURAM DISTRICT- 676123. ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -: 3 :- R.C.Rev.No.21 of 2021 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.21 of 2021** ## **-----------------------------------------------** ## **Dated this the 23[rd] day of January, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant in a proceedings for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), is the petitioner in this revision petition. 2. The tenant is a document writer. The subject matter of the eviction petition is a premises occupied by him for his office. The premises belongs to the landlords. Among them, landlords 1 and 2 are the parents of the third landlord. The need set out in the eviction petition is that one among the landlords, namely, the third landlord, intends to start a stationery business in the premises. The tenant filed objection to the eviction petition mainly contending that the need set out is not bona fide. Alternatively, it was pleaded by the tenant that at any rate, he is entitled to the R.C.Rev.No.21 of 2021 -: 4 :- benefit of the second proviso to Section 11(3) of the Act. 3. On the side of the landlords, one among them, namely, the third landlord gave evidence as PW1. Exts.A1 to A4 are the documentary evidence on the side of the landlords. The tenant gave evidence as RW1. Exts.B1 to B6 are the documentary evidence on the side of the tenant. 4. It was brought out in evidence that the landlords have made an attempt to evict the tenant by force by locking down the premises. It is seen that having regard to the aforesaid conduct of the landlords, the Rent Control Court took the view that the need is not bona fide, and dismissed the eviction petition. However in appeal, on a reappraisal of the materials on record, the Appellate Authority reversed the decision of the Rent Control Court and ordered eviction of the tenant. The tenant is aggrieved by the decision of the Appellate Authority and hence this revision under Section 20 of the Act. 5. The learned counsel for the tenant contended that the Appellate Authority has not reversed the categoric finding of the Rent Control Court that the need is not bona fide and instead, after referring to the proof affidavit filed by PW1, the Appellate Authority R.C.Rev.No.21 of 2021 -: 5 :- straight away dealt with the question as to whether the tenant is entitled to the benefit of the second proviso, and ordered eviction of the tenant straightaway, after holding that the tenant is not entitled to the benefit of the second proviso. According to the learned counsel, in a case of this nature, it was obligatory for the Appellate Authority to examine the question whether the reasons stated by the Rent Control Court for arriving at the conclusion that the need set out by the landlords is not bona fide, is sustainable in law. 6. We have perused the judgment of the Appellate Authority. Even though it is not stated by the Appellate Authority in very many words that the finding rendered by the Rent Control Court as to the bona fides of the need is unsustainable in law, it could be seen from the judgment that on facts, the Appellate Authority was of the view that the need set out by the landlords for eviction is bona fide. Be that as it may, on a query from the court as to the factual basis on which the tenant alleges that the need is not bona fide, the learned counsel submitted that the previous conduct of the landlords in locking down the premises alone is sufficient for the Court to arrive at the conclusion that the need is not bona fide. Whether the need set out by the landlords is bona fide is a question of fact to be R.C.Rev.No.21 of 2021 -: 6 :- decided on the facts of each case. Even though the said question was answered in favour of the tenant by the Rent Control Court, in appeal, on a reappraisal of the materials on record, the Appellate Authority took a contrary view. 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 [See **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78]. On the facts of the present case, merely for the reason that there was an attempt on the part of the landlords to evict the tenant by force, it cannot be said that the need set out is not bona fide. As such, it cannot be said that the view taken by the Appellate Authority on facts is either erroneous or perverse. 7. The next question is whether the tenant is entitled to the benefit of the second proviso to Section 11(3) of the Act. The argument advanced by the learned counsel for the tenant in this regard is that there exist sufficient and more materials to indicate R.C.Rev.No.21 of 2021 -: 7 :- that the tenant is depending solely on the income from his occupation for his livelihood and if he is evicted from the premises, he may not be able to pursue his occupation. The second proviso to Section 11(3) has two limbs. Even if it is a case where the tenant is depending solely on the income from his occupation for his livelihood, in order to get the benefit of the second proviso, he needs to establish that there are no other vacant premises in the vicinity of the tenanted premises for him to occupy for pursuing his occupation. It was conceded by the learned counsel for the tenant that even though an interlocutory application was filed for appointment of an Advocate Commissioner for the said purpose, the Commissioner was not appointed, as the tenant could not remit the batta. In other words, the fact remains that the tenant could not establish that there are no vacant premises in the vicinity of the tenanted premises. If that be so, it is unnecessary for us to examine the question as to whether the tenant has established that the income from his occupation is the sole means of livelihood. Needless to say, the tenant is not entitled to the benefit of the second proviso to Section 11(3) of the Act. 8. In the light of the discussion aforesaid, we are of the -: 8 :- R.C.Rev.No.21 of 2021 view that 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. The revision petition, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **SOPHY THOMAS, JUDGE.** Mn