Suresh Babu v. Mariyu

## **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 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944 RCREV. NO. 171 OF 2021** **AGAINST THE ORDER/JUDGMENT DATED 26.02.2021 IN RCA NO.104 OF 2019 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA CONCURRING WITH THE COMMON ORDER IN RCP NO.55 OF 2017 DATED 28.05.2019 OF MUNSIFF COURT, VADAKARA** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **SURESH BABU, AGED 54 YEARS, S/O. V.M RAGHAVAN, DURGA BHAVAN, CHOMBALA, AZHIYUR AMSOM, KALLAMALA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673 309 BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER MEERA P.** ## **RESPONDENT/APPELLANT/PETITIONER:** **MARIYU, AGED 63 YEARS, D/O. MAMMU, FARSANA COTTAGE, KUNHIPALLY, AZHIYUR AMSOM CHOMBALA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673 309 SRI.R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -: 2 :- R.C.Rev. No.171 of 2021 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.171 of 2021** **----------------------------------------------Dated this the 9[th] day of January, 2023** ## **ORDER** ## **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 instituted under Section 20 of the Act. Though the Rent Control Court dismissed the eviction petition, the Appellate Authority ordered eviction of the tenant, reversing the decision of the Rent Control Court. 2. The subject matter of the proceedings is a premises owned by a landlady. The premises was let out to the tenant on 03.02.2007. The eviction petition was instituted in R.C.Rev. No.171 of 2021 -: 3 :- the year 2017. At the time when the eviction petition was instituted, the rent that was being paid by the tenant was Rs.6,200/- per month. The case set out by the landlady in the eviction petition was that she needs the premises for her husband to run a Super Market for the benefit of the family. It is stated by the petitioner in the eviction petition that her sons, Shabeer and Shameer who are working abroad will join their father in the business. The tenant contested the eviction petition contending mainly that the need set out by the landlady is not _bona fide,_ as the landlady as also her husband and children are rich, affluent and gainfully employed. 3. The husband of the landlady gave evidence in the proceedings as PW1 on behalf of the landlady. Exts.A1 to A17 were the documentary evidence let in by the landlady. The tenant gave evidence as RW1. There was no documentary evidence on the side of the tenant. Ext.C1 is the report of the Advocate Commissioner. 4. On an appraisal of the materials on record, the R.C.Rev. No.171 of 2021 -: 4 :- Rent Control Court dismissed the eviction petition holding that the landlady could not establish that the need set out by her for eviction of the tenant is not _bona fide_ . As noted, the landlady challenged the decision of the Rent Control Court in appeal. The Appellate Authority, on a re-appraisal of the materials on record, allowed the appeal and ordered eviction of the tenant reversing the decision of the Rent Control Court. The tenant is aggrieved by the said decision of the Appellate Authority. 5. Heard the learned counsel for the tenant as also the learned counsel for the landlady. 6. Placing reliance on the averments in Ext.A4 lawyers notice issued by the landlady to the tenant prior to the institution of the proceedings, the averments in the eviction petition as also the evidence tendered by the husband of the landlady in the proceedings, the learned counsel for the tenant argued that the evidence tendered by the husband of the landlady is not consistent with the case set out by the landlady in the notice and in the eviction petition. According to the R.C.Rev. No.171 of 2021 -: 5 :- learned counsel, it is in the said circumstances that the Rent Control Court rejected the eviction petition holding that the need is not _bona fide_ . It was also argued by the learned counsel that the materials on record would show that the landlady, her husband as also their children are affluent and gainfully occupied and there is no need for them to start a Super Market for their livelihood. The Appellate Authority, in the circumstances, ought not have interfered with the decision of the Rent Control Court, submits the learned counsel. 7. Before dealing with the argument advanced by the learned counsel for the tenant, it is necessary to understand the scope of the jurisdiction of this Court under Section 20 of the Act. 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 R.C.Rev. No.171 of 2021 -: 6 :- can be said to be either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse warranting correction under Section 20 of the Act. 8. The relevant averment in Ext.A4 notice reads thus: “My client bona fide needs the rooms to provide her husband dependent M.V.Khader to run a Super Market in the said building. My client's son Sameer and Saheer who are now in Doha Qatar will join their father in the trade for a better income for the family” ## The relevant averment in the eviction petition reads thus: “The petitioner bona fide needs the petition schedule rooms to provide her dependent husband M.V.Kadar to run a Super Market in the said building. Petitioner has sons, Sameer and -: 7 :- R.C.Rev. No.171 of 2021 Saheer at Doha Qatar who will join their father in the trade for better income to be generated for the family.” In cross examination, it was deposed by PW1, the husband of the landlady that it was for him and for wife and children that the eviction petition was filed and that the Super Market is intended to be established by all of them together for their common need and to augment their income. The relevant portion of the deposition reads thus: ഹരജ�ക�ര�യ�ട�യ�� എന�ട�യ�� മകള�ട�യ�� സ�ന�വശ�ത�ന� വവണ�യ�ണ� ഈ വ�സ� ട����തത�. ഞങടളല�വര�� �#�� ഒര� (3rd page) supermarket ത��ങ�ൻ വവണ�യ�ണ� വ�സ� ട����തത�. ഞ�ന�� ഹരജ�ക�ര�യ��, മകള�� ഒര� ഉപജ(വന� �ഴ�വകണ ആവശ�ത�വ+ക�ണ� ഒര� supermarket ത��ങ�നത�. The averments in Ext.A4 notice as also the eviction petition indicate beyond doubt that the need set out for eviction is to start a Super Market to augment the income of the family. If the need of the landlady is understood in this fashion, it cannot be said that the evidence tendered by the husband of the landlady as PW1 is inconsistent with the averments in the notice and the R.C.Rev. No.171 of 2021 -: 8 :- eviction petition. True, the materials on record would show that the landlady and her children are earning members of the family. Merely for the reason that the landlady and her children are earning, it cannot be said that they do not intend to start the Super Market. In the absence of any material to indicate that the need set out by the landlady in the eviction petition is only a ruse to evict the tenant, on the facts of the present case, we are of the view that the Appellate Authority cannot be found fault with for having reversed the decision of the Rent Control Court and ordered eviction of the tenant. We do not, in the circumstances, find any illegality, irregularity or impropriety in the said view, 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. However, having regard to the peculiar facts of this case, the tenant is granted six months' time from today to surrender vacant possession of the premises on condition that he shall file an -: 9 :- R.C.Rev. No.171 of 2021 unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy this order to vacate the tenanted premises within six months and also that he shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth day of every succeeding month till he vacates the premises. **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB