S.N. Sunilkumar v. N.S.S. Karayogam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** **R.C.REV.NO. 100 OF 2022** **AGAINST THE JUDGMENT DATED 19.02.2022 IN R.C.A.NO.22 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (I ADDITIONAL DISTRICT JUDGE), ERNAKULAM AND THE ORDER DATED 27.03.2021 IN R.C.P.NO.98 OF 2016 OF THE RENT CONTROL COURT (III** ## **ADDITIONAL MUNSIFF), ERNAKULAM** ## **REVISION PETITIONER:** **S.N. SUNILKUMAR, AGED 58 YEARS, THEKKE MADAVANIYIL, VENNALA P.O., ERNAKULAM DISTRICT, PIN – 682028.** **BY ADV BABU CHERUKARA** ## **RESPONDENT:** **N.S.S. KARAYOGAM 2124 ELAMAKKARA, KOCHI-682 026 REPRESENTED BY ITS SECRETARY B.M.SANALKUMAR, 57 YEARS, S/O MADHAVA PANICKER, BRAHMANI VEEDU ELAMAKKARA, COCHIN, PIN – 682026.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.100 of 2022 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.98 of 2016 before the Rent Control Court (III Additional Munsiff), Ernakulam, is the revision petitioner. The respondent-landlord filed the rent control petition seeking an order of eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition was allowed as per the order dated 27.03.2021. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (I Additional District Judge), Ernakulam. The appeal was dismissed. The petitioner, challenging the said order and the judgment, has filed this revision under Section 20 of the Act. 2. Today, when this matter came up for admission, we have heard the learned counsel appearing for the petitioner in detail. 3. The rent control petition was filed with the 3 R.C.Rev.No.100 of 2022 allegation that the petitioner-tenant defaulted payment of rent from May, 2015 onwards. The rate of rent is Rs.1,560/- per month. Statutory notice was sent. But, neither the rent was paid nor the petition schedule shop room was surrendered. 4. The petitioner resisted the rent control petition by contending that from 27.08.1996, he has been a tenant in the building, but only in March, 2015, he came to know that the respondent illegally had carried out the construction on the Government land and for that reason, he did not have any liability to pay rent. 5. The Rent Control Court after recording oral testimony of PW1, who represented the respondent and Exts.A1 to A5 and also B1 to B3, found that the petitioner is a building tenant under the respondent and liable to pay the agreed rent and as he failed, despite receipt of a statutory notice, he is liable to be evicted under Section 11(2)(b) of the Act. Same contentions were raised by the petitioner before the Appellate Authority. The Appellate Authority in the light of the principle laid down by a Full Bench of this Court in 4 R.C.Rev.No.100 of 2022 ## **Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250],** found that the petitioner's contentions could not be entertained as one of denial of title of the respondent as the landlord. Further, in the light of the principle laid down by the Apex Court in **Jaspal Kaur Cheema v. Industrial Trade Links [AIR 2017 SCC 3995]** , it was held that the petitioner is estopped from contending that he was not a tenant under the respondent. Accordingly, the Appellate Authority dismissed the appeal and confirmed the findings of the Rent Control Court that the petitioner is liable to be evicted on the ground of arrears of rent. 6. The learned counsel appearing for the petitioner does not raise any new contention. It is contended that although the information was latent, a tenant is entitled to raise the defect of title of the landlord. The petitioner although raised a contention denying title of the respondent to the petition schedule shop room, absolutely no evidence has been let in to prove that contention. He even did not mount the box to depose before the court. None of the documents produced 5 R.C.Rev.No.100 of 2022 by him relates to such a question. 7. Having admitted that he has executed rent agreement on 13.02.2015 in favour of the respondent, the petitioner has no right to raise a contention that he is not a tenant under the respondent, in view of the provisions of Section 116 of the Evidence Act, 1872. The view taken by the Appellate Authority by relying on the principle laid down by the Apex Court in **Jaspal Kaur Cheema** (supra) in this regard is not liable to be interfered with. The finding on the fact that the petitioner has been in occupation of the petition schedule shop room as a tenant is concurrent. This Court in exercise of the jurisdiction under Section 20 of the Act is not expected to interfere with the said finding in the absence of anything on record to show that the same is illegal or perverse. 8. 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 6 R.C.Rev.No.100 of 2022 consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated the 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 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. 9. 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 7 R.C.Rev.No.100 of 2022 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 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. 10. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could 8 R.C.Rev.No.100 of 2022 - not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 11. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. The order of eviction under Section 11(2)(b) of the Act is therefore confirmed which will be subject to the provisions of Section 11(2)(c) of the Act. Hence this Revision Petition is dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr