Soopi Kutty v. V.M Hameed

1 RCRev. No.135 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ``` RCREV. NO. 135 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 29.11.2023 IN RCA NO.5 OF 2021 OF ADDITIONAL DISTRICT COURT - III, KASARAGOD ARISING OUT OF THE ORDER DATED 19.02.2021 IN RCP NO.13 OF 2018 OF PRINCIPAL MUNSIFF’S COURT, KASARAGOD ``` ``` --------- ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` SOOPI KUTTY, AGED 74 YEARS, S/O LATE HASSAN KUTTY, RESIDING AT VKM COMPLEX, SANGAM HOTEL BUILDINGS, HOSANGADI, MANJESHWAR POST AND TALUK, KASARAGOD DISTRICT, PIN – 671323. ``` ``` BY ADVS. P.V.ANOOP ARUN AJAY SHANKAR PHIJO PRADEESH PHILIP ABIN BENNY ANJU R S. K C MOHAMED RASHID ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` V.M HAMEED, AGED 58 YEARS, S/O LATE V.K MOIDEEN KUNHI HAJI, RESIDING AT VKM COMPLEX, HOSANGADI, MANJESHWAR POST AND TALUK, KASARAGOD DISTRICT, PIN – 671323. ``` ``` BY ADVS. PUSHPARAJAN KODOTH K.JAYESH MOHANKUMAR(K/2535/1999) VANDANA MENON(K/153/2007) VIMAL VIJAY(K/000214/2018) ``` 2 RCRev. No.135 of 2024 ## **`VINAYAK MANOHARAN P.(K/001679/2024)`** ``` THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 RCRev. No.135 of 2024 ## **JUDGMENT** ## **Harisankar V. Menon, J** . The revision petitioner, who is the tenant of a shop room bearing No.M.G.P.No.X-454 of Manjeshwar Grama Panchayath owned by the respondent herein, has filed this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the ‘Act’), challenging the judgment dated 29.11.2023 in RCA No.5 of 2021 of the III[rd] Additional District Judge, Kasaragod, by which, the order dated 19.02.2021 in RCP No.13 of 2018 of the Principal Munsiff’s Court, Kasaragod, ordering eviction under Section 11(2)(b) and (3) of the Act is confirmed. 2. The short facts necessary for the disposal of this revision petition are as follows: The revision petitioner herein was the tenant with respect to the petition scheduled shop room referred to above, owned by the respondent herein from 2008, on a monthly rent of Rs.2,000/for a period of 11 months. Even after the expiry of the said period as per the original rent deed, the petitioner herein continued as a tenant in holding over and the present rent is stated to be Rs.4,400/-. The case set up by the respondent-landlord is that from February 2017 onwards, the rent is in arrears from the petitioner herein. On account of this, the prayer under Section 4 RCRev. No.135 of 2024 11(2) of the Act was raised. The respondent-landlord also contended that his daughter has returned from abroad permanently with her husband and they are depending on him at present, since they have no job or avocation. Therefore, it was contended by the respondent-landlord that he needs to start a plywood showroom for his daughter since he has a plywood factory of his own, for which, the petition schedule room is most suitable. He also contended that there are no other suitable rooms available with him for the said purpose. On the above basis, _bona fide_ need under Section 11(3) of the Act was raised. 3. The petitioner-tenant objected to the eviction claims on both grounds. He took up the stand that the rent was paid up to February 2019, and that the respondent’s daughter is married to an immensely rich NRI, who visits Kerala only once in a while and there is no necessity to start a new business as contended. 4. The Principal Munsiff’s Court by the order dated 19.02.2021, found that there is no document to prove payment of rent till February 2019, as contended by the petitioner-tenant. Though a contention was raised by the petitioner-tenant that the rent was being collected and remitted in the landlord’s account by his representative, the petitioner did not adduce any evidence to prove the same. Therefore, the claim for eviction under Section 5 RCRev. No.135 of 2024 11(2) of the Act was found correct. As regards the second claim for eviction on the basis of the _bona fide_ need, it was found that the evidence adduced by the petitioner-tenant is not at all sufficient to prove the case of _bona fide_ need as a ruse to evict the petitioner-tenant. It was also found on the evidence that the landlord's daughter had returned from Gulf permanently and that her husband currently has no job. The dependency of the daughter on the landlord was also found correct. Therefore, the provisions of Section 11(3) of the Act were found attracted to the case at hand. The case of the petitioner-tenant based on the proviso to Section 11(3) of the Act was also found against him for want of proper evidence. Therefore, eviction under Section 11(2)(b) and (3) of the Act was ordered by the Principal Munsiff’s Court, Kasaragod. 5. In the appeal filed against the above order by the petitioner-tenant, the Rent Control Appellate Authority by the impugned order dated 29.11.2023, found that merely because the landlord is rich, it cannot be assumed that he has no _bona fide_ need to engage a jobless daughter in some business. The contention with respect to the proviso to Section 11(3) of the Act raised by the petitioner-tenant was also found against him mainly with reference to the report of the Commissioner. With respect to 6 RCRev. No.135 of 2024 the arrears of rent also, the contentions raised by the petitionertenant were not accepted. 6. It is aggrieved by the above judgment dated 29.11.2023 in RCA No.5 of 2021 of the III[rd] Additional District Court that this revision petition is filed before this Court. 7. It is under the provision of Section 20 of the Act that this revision petition is presented before this Court by the petitionertenant. A reading of Section 20 of the Act would make it clear that this Court while considering a revision petition filed under Section 20 of the Act, is not acting as a first or second court of appeal. It is only a revisional jurisdiction that is conferred upon this Court. Every order issued by the Rent Control Court and Rent Control Appellate Authority cannot be interfered by this Court. There cannot be any re-appreciation of evidence also. In this connection, the decision rendered by the Apex Court in **Rukmini Amma** ## **Saradamma v. Kallyani Sulochana and Others [(1993) 1** **SCC 499]** is referred to. In the said judgment, at paragraph 20, the Apex Court has laid down the scope and ambit of Section 20 of the Act as follows: “20. We are afraid this approach of the High Court is wrong. 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 7 RCRev. No.135 of 2024 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 (Exts. C1 and C2 mahazar). In our considered view, 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. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.” 8. In the light of the above principles laid down by the Apex Court, the re-appreciation of the evidence as contended by the petitioner-tenant cannot be carried out in this revision petition. The above principles laid down by the Apex Court have been later approved by a constitution bench in the decision reported as ## **Hindustan Petroleum Corporation Limited v. Dilbahar Singh** **[(2014) 9 SCC 78]** and again in the decision rendered as **Thankamony Amma v. Omana Amma N. [AIR 2019 SC 3803]** . 9. On 09.07.2024, when this matter came up before this Court, this Court passed the following order: - “Learned counsel appearing for the petitioner-tenant confines his prayer for grant of time to vacate the premises 8 RCRev. No.135 of 2024 and does not press this petition on merits, noticing the fact that the findings of the appellate authority are perfect, legal and justified. On this limited point, issue notice by special messenger and as well through the learned counsel appearing in the trial court. Post on 29.07.2024. Till then, there shall be interim stay of the impugned order.” Upon receipt of notice as above, the respondent-landlord entered appearance through counsel. 10. We have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent herein. 11. The learned counsel for the petitioner-tenant, as noted in the order dated 09.07.2024, only prays that his client may be granted two years time to vacate the scheduled premises. No submissions are made on the merits of the matter. The learned counsel for the respondent-landlord points out that as on 10.07.2024, the arrears of rent is Rs.1,31,600/- and this amount may be directed to be paid and a reasonable period may also be granted to the petitioner-tenant, not in excess of four months. 12. Having considered the submissions made as above, as well as the orders of the Rent Control Court and the Appellate Authority, we find that the claim for eviction under Sections 11(2) 9 RCRev. No.135 of 2024 and (3) of the Act, were well-founded. However, considering the submissions made by the petitioner-tenant to the effect that he be granted a reasonable time to vacate the scheduled premises, we dismiss this Rent Control Revision Petition declining interference on the impugned judgment of the Rent Control Appellate Authority and the impugned order of the Rent Control Court, however, by granting seven months' time to the petitionertenant, to surrender vacant possession of the scheduled shop room to the respondent-landlord subject to the following conditions: - (i) The petitioner-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the scheduled shop room to the respondent-landlord within seven months from the date of this order and that, he shall not induct third parties into possession of the scheduled shop room and further he shall conduct any business in the scheduled shop room only on the strength of a valid licence/ permission/consent issued by the local authority/ statutory authorities; - (ii) The petitioner-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, 10 RCRev. No.135 of 2024 as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; - (iii) Needless to say, in the event of the petitioner-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the building will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K.NARENDRAN** ## **JUDGE** Sd/- **HARISANKAR V. MENON JUDGE** ln