SUVIL T.T. v. KAVARAN KUNIYIL NABEESU

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939** **RCRev..No. 50 of 2018** **RCA.143/2016 of ADDL. DISTRICT COURT, VADAKARA RCP.103/2014 of MUNSIFF COURT, VADAKARA** ## **REVISION PETITIONER/APPELLANT/RESPONDENT :** **SUVIL T.T., S/O.SURENDRAN,AGED 35 YEARS, THEKKEDHANUVALATH HOUSE, NADKKUTHZHA AMSOM, DESOM, NADAKKUTHAZHA P.O., VATAKARA - 673 104.** **BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SMT.MEENA.A. SMT.M.R.MINI SRI.VINAY MATHEW JOSEPH SRI.ASHWIN SATHYANATH SRI.M.K.SADANANDAN (VATAKARA)** ## **RESPONDENT/RESPONDENT/PETITIONER :** **KAVARAN KUNIYIL NABEESU, D/O. AMMED, AGED 48 YEARS, DARANATAVIDA HOUSE, POYILOOR AMSOM DESOM, POYILOOR P.O., THALASSERY TALUK, PIN-679 693.** **R1 BY ADV. SRI.K.M..FIROZ (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12-02-2018, ALONG WITH R.C.R.52/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL 23.4.2018** ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ---------------------------------------------------- **R.C.R.Nos. 50 of 2018 & 52,53,54,55,56,57,58 & 59 of 2018** ---------------------------------------------------Dated this the 12[th] day of February,2018. ## **ORDER** ## **C.T.RAVIKUMAR,J:** The captioned revision petitions are filed against the concurrent findings in Rent Control Petitions filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act,1965 (for brevity 'the Act' only). There are altogether 23 rooms in the tenanted building and they are being occupied by 13 different tenants. In such circumstances, 13 rent control petitions viz., RCP Nos.92/14,93/14,94/14,95/14,96/14,97/14,98/14, 99/14, 100/14, 101/14, 102/14,103/14 and 104/14 are filed by the common respondent herein seeking eviction of the 13 different tenants under Section 11(3) of the Act, citing the bona fide need to start wholesale and retail business in furniture in the entire building. Before the Rent Control Court, Vatakara, the respondent herein was examined as R.C.R.Nos. 50 of 2018 & connect.cases ## -:2:- PW1 and on her side, Exts.A1 to A14 were got marked. No documentary evidence was adduced on the side of the respondent, though on their side, three tenants were examined respectively as RW1 to RW3. Exts.C1 to C13 were got marked as court exhibits. Virtually, they are the commission reports in respect of the tenanted shop rooms. On evaluating the evidence on record and appreciating the rival contentions, the Rent Control Court arrived at the conclusion that the respondent herein/landlady had succeeded in establishing the bona fide need projected by her in the Rent Control Petition. Though the tenants attempted to establish that they are entitled to get the benefit of the second proviso to Section 11(3) of the Act, the Rent Control Court found that they could not establish the twin conditions to be satisfied to earn eligibility to get the benefit thereunder. Consequently, the order of eviction was passed in all the Rent Control Petitions. Feeling aggrieved by the common ## R.C.R.Nos. 50 of 2018 & connect.cases ## -:3:- orders passed by the Rent Control Court in the said Rent Control Petitions, the respective tenants preferred the appeals R.C.A.Nos.135/16,136/16,137/16,138/16,139/16,140/16,141/16,142/16,143/ 16,144/16 and 152/16 respectively before the Rent Control Appellate Authority, Vatakara against the orders in RCP Nos.92/14,93/14, 95/14,97/14,99/14,100/14,101/14,102/14,103/14,104/14 and 96/14 respectively. The Rent Control Appellate Authority as per the impugned judgments, repelled the contentions of the tenants and dismissed the appeals and confirmed the orders passed by the Rent Control Court. It is in the said circumstances that the captioned revision petitions are filed. In fact, RCR Nos.50/18,52/18,53/18,54/18,55/18,56/18,57/18,58/18 and 59/18 are filed against the common judgment in RCA Nos.143/16,141/16,137/16,144/16,142/16,152/16,139/16,136/16 and 135/16 respectively. In the circumstances, all these revision petitions are heard jointly and they are being disposed of, by this common R.C.R.Nos. 50 of 2018 & connect.cases ## -:4:- order. 2. Before adverting to the common contentions raised by the revision petitioners, we think it only apropos to refer to the constitutional Bench decision of the Hon'ble Apex Court in the v. **Hindustan Petroleum Corporation Limited Dilbahar Singh** [2014(4) KLT 182]. In fact, the Apex Court, while dealing with the provision for revision under the Rent Control Acts of the State of Tamil Nadu, Hariyana and the State of Kerala, held as follows:- “ _45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is . A according to law and does not suffer from any error of law finding of fact recorded by the Court/Authority below, if perverse or has been arrived at without consideration of the materials 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, 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 the above Rent Control Acts shall be entitled to set aside the impugned order as being not_ ## R.C.R.Nos. 50 of 2018 & connect.cases ## -:5:- _legal or property. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not - - exercise its power as an appellate power to re appreciate or re assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.”_ _(emphasis added)_ 3. In the light of the exposition of law by the Honourable Apex Court, in the matter of exercise of revisional powers in respect of the concurrent findings on facts, it is evident that there would only be very limited scope for reconsideration of all questions of fact by the revisional court and the consideration is to be confined to satisfy whether the decision is according to law, that is to satisfy to the regularity, correctness, legality or propriety of the impugned decision or the order. If the finding is perverse or has been arrived at without consideration of the material ## R.C.R.Nos. 50 of 2018 & connect.cases ## -:6:- evidence, or such finding is based on no evidence or is an outcome of misreading of the evidence or is grossly erroneous that if allowed to stand, it would result in grave miscarriage of justice, it would be open for correction in exercise of the revisional power, going by the decision. In such circumstances, bearing in mind the enunciation of law as above by the Apex Court, we will consider the question whether the concurrent findings rendered by the authorities below under Section 11(3) of the Act, in favour of the respondent/landlady in the cases on hand invite interference. 4. The tenancy is not at all disputed in all these cases. As noticed hereinbefore, the bona fide need projected by the landlady is for starting wholesale and retail business in furniture in the entire building in occupation of the 13 different tenants, including the revision petitioners. Admittedly, the common respondent along with four children, of whom two are minors, are ## R.C.R.Nos. 50 of 2018 & connect.cases ## -:7:- the co-owners of the tenanted building. Obviously, the common respondent alone had filed the rent control petitions. In the said circumstances, an objection was raised by the tenants/revision petitioners before the Rent Control Court to the effect that the rent control petitions are bad for non-joinder of necessary parties and therefore, they are not maintainable. In the Rent Control Petitions, it has been specifically stated that all the co-owners including the minors had entrusted the common respondent herein viz., the petitioner therein to institute the suit for evicting all the tenants in the building in question. Admittedly, she is the mother of the other co-owners. It is stated therein that she intends to start wholesale and retail business of furniture in the tenanted building and for the purpose, the entire rooms are required. According to common respondent, the petition schedule rooms are situated in the heart of the city in a commercially important area. It is also stated therein that such a R.C.R.Nos. 50 of 2018 & connect.cases **==> picture [21 x 10] intentionally omitted <==** business is intended to be started for the benefit of all the coowners, as well. The respondent herein/the petitioner in the rent control petition is none other than the mother of the other coowners, and the petitions are filed for ejectment of all the tenants for the purpose of starting the aforesaid business for the benefit of all the co-owners. The common respondent is also one of the coowners and in such circumstances, in the absence of anything on record, even to suggest that the proposal is against the interest of the other co-owners, the objection raised by the tenants cannot be sustained. The Rent Control Court as also the Rent Control Appellate Authority arrived at the said conclusion and consequently repelled the contention of the tenants. We do not find any reason to hold that rejection of the objection regarding the non-joinder of the other co-owners is infected with an error or impropriety warranting an interference in exercise of revisional jurisdiction. R.C.R.Nos. 50 of 2018 & connect.cases -:9:- 5. Now, we will consider the other contentions. Evidently, in the cases on hand in order to establish the bona fide need projected in the rent control petitions, the respondent/landlady mounted the box and gave evidence in tune with the pleadings in the rent control petitions. According to her, after the death of her husband, she is shouldering the liability rather, the responsibility to maintain the family and she got no job. Though the revision petitioners/tenants cross-examined her in extenso, they could not elicit anything to discredit her version. In **Ammu.K. and Others** v. **Nafeesa and Others** [2015(5) KHC 718], a Division Bench of this Court held that in the absence of any ulterior motive or reasons to suspect the evidence of the landlord, the court should proceed on the presumption that bona fide need of the landlord is genuine. As noticed hereinbefore, though on behalf of the respondents, the common respondent-landlady was crossexamined, nothing could be elicited to cast any suspicion ## R.C.R.Nos. 50 of 2018 & connect.cases ## -:10:- regarding the genuineness of the bona fide need projected by her in the rent control petitions or to establish any ulterior motive on her part. Bona fide is a state of mind and in the circumstances obtained in these cases, there is absolutely no reason to doubt the genuineness of the need viz., to start a wholesale and retail furniture business in the interest of the common respondent and all the other co-owners. Being affluent otherwise, if at all the said contention of the tenants is correct, cannot be a reason at all to hold the question of bona fide need against the landlady. In the said circumstances and in the light of the decision in **Dilbahar ' s case Singh** (supra) referred above, the conclusion arrived at, concurrently, by the authorities below that there is no reason to cast any doubt regarding the genuineness of the bona fide need projected by the landlady is only to be upheld as it is the outcome of proper appreciation of the evidence on record. None of the permissible grounds of attack available in the light of the decision R.C.R.Nos. 50 of 2018 & connect.cases **==> picture [27 x 10] intentionally omitted <==** in Dilbahar Singh's case exists in the case on hand. 6. No such ground has been established by the respondent warranting us to interfere with the concurrent findings. The upshot of the discussion as above would reveal that there is absolutely no merit in the appeals. Hence, the concurrent finding of the authorities below on the question of bona fide need under Section 11(3) of the Act is sustained. The revision petitioners did not adduce any evidence to show that the common respondent got other vacant rooms in her possession. Therefore, the next question to be considered is whether the rejection of the benefit under the second proviso to Section 11(3) of the Act invites interference. The revision petitioners had attempted to establish that they are not liable to be evicted despite the finding in favour of the landlord on the issue of bona fide need, as they are entitled to get the benefit of second proviso to Section 11(3) of the Act. At the same time, the evidence on record would reveal that though ## R.C.R.Nos. 50 of 2018 & connect.cases ## -:12:- the revision petitioners/tenants attempted to establish that the respective business, which they are carrying out in the tenanted shop rooms is the main source of their income for their livelihood, could not adduce evidence to establish the same. they Respondents in R.C.P.Nos.92/14,100/14 and 97/14 viz., the revision petitioner in RCR No.59/2018 and two other tenants who are not among the revision petitioners, only were examined as witnesses on the side of the respondents. In fact, they were examined as RW1 to RW3. Paragraph 30 of the impugned order passed by the Rent Control Court itself would reveal that they had admitted before it that they were not maintaining any account and that there is no document to prove the income being derived from their respective business carried out in the tenanted shop rooms. It is obvious that none of the other tenants had mounted the box to give evidence on the aforesaid aspect. It is evident from the appendix given in the common order passed by the Rent Control R.C.R.Nos. 50 of 2018 & connect.cases ## -:13:- Court that none of the tenants viz., the respondents in the rent control petitions had produced any document to prove the income derived from their respective business conducted in the petition schedule shop rooms. This position is not disputed before us. Thus, apart from the pleadings in the counter, there is no evidence in that regard, on the part of the tenants. Pleadings cannot take the place of proof. In such circumstances, it can only be held that none of the revision petitioners had succeeded in establishing that the income derived from the trade conducted in the respective tenanted shop room, is his main income. In this contextual situation, it is also relevant to note that the common respondent viz., the petitioner in the aforesaid rent control petitions had taken out separate commissions on all the 13 rent control petitions and obviously, Exts.C1 to C13 are the reports of the Commissioners. Paragraph 31 of the common order passed by the Rent Control Court would reveal that on perusal of those R.C.R.Nos. 50 of 2018 & connect.cases **==> picture [27 x 10] intentionally omitted <==** reports, the Rent Control Court found that each of them contained report regarding availability of suitable vacant rooms in the locality. In fact, the burden to establish non-availability of such rooms was on the part of the tenants concerned in the rent control petitions. Apart from the oral version of RW1 to RW3 there is absolutely no evidence in that regard, on the part of the revision petitioners/tenants. The burden of proof is on the tenant concerned to establish that the income is deriving from the business conducted in the tenanted shop room and that there is no other suitable room satisfying his requirements to shift such business, is available in the locality, to earn eligibility for the protection available under the second proviso to Section 11(3). In other words, the said conditions are conjunctive and only on establishing them that the tenant concerned would get the benefit thereunder. Since the revision petitioners could not establish the twin conditions, they are certainly not entitled to the benefit R.C.R.Nos. 50 of 2018 & connect.cases **==> picture [27 x 10] intentionally omitted <==** of second proviso to Section 11(3) of the Act. This finding of the Rent Control Court was affirmed by the Appellate Authority. We do not find any reason to interfere with the findings of the authorities below repelling the contention of the revision petitioners that they are entitled to get the benefit of second proviso to Section 11(3) of the Act, in the said circumstances. 7. Accordingly, these revision petitions must fail and they are liable to be dismissed. 8. While we are about to part with the judgment, by dismissing the revision petitions, the learned counsel appearing for the revision submitted that some petitioners/tenants reasonable time may be granted to the revision petitioners in the captioned revision petitions to surrender vacant possession of the petition schedule shop rooms to the respondent/landlady. We heard the learned counsel for the respondent in all the revision petitions who filed caveat in the captioned revision petitions, on ## R.C.R.Nos. 50 of 2018 & connect.cases **==> picture [27 x 10] intentionally omitted <==** the aforesaid submission. After hearing both sides, we are of the view that time till 30[th] September,2018 can be granted to the revision petitioners/tenants concerned to surrender vacant possession of the shop rooms concerned to the respondent/tenant. In such circumstances, each of the revision petitioners shall file affidavit before the Rent control Court carrying an undertaking to the effect that the tenanted shop room/rooms would be surrendered forthwith on the expiry of the aforementioned period viz., on 1[st] November,2018. Such affidavits shall be filed before the execution court and not before the Rent Control Court if execution petition is pending. Needless to say that during the said period, the revision petitioners shall continue to pay rent at the admitted rate in respect of the respective shop room/rooms in their occupation and they shall also deposit arrears of rent, if any. Such an affidavit shall be filed before the Rent Control Court/execution court within a period of two weeks ## R.C.R.Nos. 50 of 2018 & connect.cases **==> picture [27 x 10] intentionally omitted <==** from the date of receipt of a copy of this order. It is made clear that on two consecutive defaults in payment of rent in the manner mentioned above, would entail automatic cancellation of the aforesaid benefit. Subject to the above, the Revision Petitions are dismissed. There will be no order as to costs in all the revision petitions. Sd/- **C.T.RAVIKUMAR, JUDGE** sd/- **MARY JOSEPH, JUDGE** MBS/ **-true copy-** **P.S.TO JUDGE** R.C.R.Nos. 50 of 2018 & connect.cases -:18:-