T. C. Muhammed Thaha v. K.P. Khoulath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 R.C.REV. NO.59 OF 2022** **AGAINST THE ORDER DATED 09.04.2021 IN R.C.P.NO.79 OF 2019 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR AND THE ORDER DATED 09.03.2022 IN R.C.A.NO.31 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - II, THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **T.C. MUHAMMED THAHA, AGED 53 YEARS S/O.HAJI P ABDULKHADER, BEHIND ENGLISH CHURCH, ANJUKANDY, NEAR DISTRICT HQ HOSPITAL, KANNUR, PIN - 670017** **BY ADVS.SRI.V.R.KESAVA KAIMAL SMT.C.DEVIKA RANI KAIMAL** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** - **1 K.P. KHOULATH, AGED 57 YEARS, W/O.LATE MAMMU, HASEEBAS, P.O. PAPPINISSERI WEST, PAPPINISSERI AMSOM AND DESOM, KANNUR, PIN - 670561** - **2 MUHAMMED HASHIR, AGED 36 YEARS, S/O.K.P.KHOULATH, P.O. PAPPINISSERI WEST, KANNUR, PIN - 670561** **3 HASEEBA MAMMU, AGED 35 YEARS D/O.K.P. KHOULATH, P.O. PAPPINISSERI WEST, KANNUR, PIN - 670561** -2- R.C.R.No.59 of 2022 - **4 ASSU K.P., AGED 68 YEARS, S/O.MOIDU HAJI, FATHIMA MANZIL, PANNIYANKANDI, NEAR KAMBIL SCHOOL, P.O. KOLACHERY, KANNUR, PIN - 670601** - **5 ABDUL SAMAD K.P., AGED 67 YEARS,S/O.MOIDU HAJI, JAFNA'S, KAMBIL, P.O.KOLACHERY, PIN-670601** - **6 SAYEED K.P., AGED 57 YEARS, S/O.MOIDU HAJI, CHALIL VAYAL, CHUZHALI, (VIA) SREEKANDAPURAM, KANNUR, PIN - 670142** - **7 NABEESA, AGED 63 YEARS D/O.MOIDU HAJI, HAJI MANZIL, MANGADAVU, P.O. AROLI, PAPPINISSERI, KANNUR, PIN - 670561** - **8 ABDUR RASHEED K.P., AGED 60 YEARS S/O.MOIDU HAJI, HAJEE MANZIL, MANGADAVU, P.O. AROLI, PAPPINISSERI, KANNUR - 670561, REP. THROUGH POWER OF ATTORNEY HOLDER HASEEBA MAMMU, D/O.K.P. KHOULATH, AGED 35 YEARS, P.O. PAPPINISSERI WEST, KANNUR, PIN - 670561** - **9 ABDUL NAZER, AGED 54 YEARS, S/O.MOIDU HAJI, HAJI K.P. HOUSE, P.O.AROLI, PAPPINISSERI, KANNUR-670561, REP. THROUGH POWER OF ATTORNEY HOLDER HASEEBA MAMMU, D/O.K.P. KHOULATH, AGED 35 YEARS, P.O. PAPPINISSERI WEST, KANNUR, PIN - 670561** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- R.C.R.No.59 of 2022 ## **ORDER** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.79 of 2019 on the file of the Rent Control Court (Principal Munsiff), Kannur, a petition filed by the respondents herein-landlords under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. In the Rent Control Petition, it is alleged that the tenant has kept the rent of the petition schedule shop room in arrears, despite receipt of a statutory notice. The _bona fide_ need projected in the Rent Control Petition, for seeking an order of eviction under Sections 11(2)(b) and 11(3) of the Act, is that of the 1[st] petitioner's daughter, who is also a co-owner of the petition schedule shop room, who was arrayed as the 3[rd] petitioner in the Rent Control Petition, for opening her own office for practicing accountancy work. Admittedly, she is qualified in accountancy. Before the Rent Control Court, the tenant entered appearance and filed counter, opposing the order of eviction sought for. Exts.A1 to A4 were marked on the side of the landlords and the 3[rd] petitioner in the Rent Control Petition -4- R.C.R.No.59 of 2022 was examined as PW1. On the side of the tenant, Ext.B1 was marked and he was examined as RW1. After considering the pleadings and evidence on record, the Rent Control Court granted an order of eviction in R.C.P.No.79 of 2019 under Sections 11(2)(b) and 11(3) of the Act on a finding that the tenant has kept the rent of the petition schedule shop room in arrears from July 2015. The Rent Control Court found that the need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is _bona fide_ and that, the first proviso to Section 11(3) of the Act has no application to the facts of the case and that, the tenant is not entitled to protection under the second proviso to Section 11(3) of the Act. By the order dated 09.04.2021, the Rent Control Court allowed R.C.P.No.79 of 2019, under Sections 11(2)(b) and 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule shop room to the landlords, within a period of one month from the date of that order. 2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.31 of 2021 -5- R.C.R.No.59 of 2022 before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 09.03.2022, thereby confirming the order of eviction granted by the Rent Control Court. 3. Challenging the order dated 09.04.2021 of the Rent Control Court in R.C.P.No.79 of 2019 and the judgment dated 09.03.2022 of the Rent Control Appellate Authority in R.C.A.No.31 of 2021, the tenant is before this Court in this Rent Control Revision, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 4. Heard the learned counsel for the petitioner-tenant. The learned counsel for the petitioner-tenant confined arguments on the ground of eviction under Section 11(3) of the Act. 5. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction concurrently passed by the Rent Control Court as well as the Appellate Authority under Section 11(3) of the Act. -6- R.C.R.No.59 of 2022 6. During the course of arguments, the learned counsel for the petitioner placed reliance on the judgment of this Court in **Ibrahim v. Zeena Robert [2021 (5) KHC 759]** , wherein a Division Bench of this Court held that, consent of all co-owners, who have fractional interest over the property, is required for the alleged occupation of one of the co-owners. For that purpose all co-owners should join hands in filing petition for eviction under Section 11(3) of the Act and they should be in the party array of such petition. 7. In **Manager, Sai Service Station Ltd. and another v. Dileep Ganesh [2022 (1) KHC 700]** , we had occasion to consider the contention raised by the learned counsel for the respondent therein-landlord that, the decision in **Ibrahim v. Zeena Robert [2021 (5) KHC 759]** is against the law laid down by the Apex Court and this Court in a long line of decisions on the point and therefore, it is _per incurium_ . After considering the law laid down in those decisions, this Court held that, even if the eviction is sought for own occupation of the suing co-owner and the petition is filed by him without junction of the other co-owner/s, it is -7- R.C.R.No.59 of 2022 maintainable as long as it is not objected by the non-suing coowner/s. Therefore, the ratio in **Ibrahim** that all co owners should join as petitioners in an application for eviction under Section 11(3) of the Act is against the principle laid down by the Apex Court and this Court in the abovesaid decisions. Paragraphs 15 to 24 of the said decision read thus: “15. The learned Counsel for the respondent, on the other hand, would submit that decision in **Ibrahim** is against the principle of law laid down by the Apex Court and this Court in a long line of decisions on the point and therefore it is per incuriam. **Sri Ram Pasricha v. Jagannath [AIR 1976 SC 2335]** ; **Kanta Goel v. B. P. Pathak [AIR 1977 SC 1599]** ; **India Umbrella Mfg. Co. v. Bhagabandei Agarwalla [(2004) 3 SCC 178]** ; **Mohinder Prasad Jain v. Manohar Lal Jain [(2006) 2 SCC 724]** ; **FGP Ltd. v. Saleh Hooseini Doctor and another [(2009) 10 SCC 223]** ; **Raphael v. Sudhodhanan [2013 (2) KLT 500] and Kumaran A. v. Madambillath Subaida and another [2019 (3) KLJ 866]** are the decisions, according to the learned counsel, which took the view that one co-owner can file a petition for eviction of a tenant without the junction of other coowners as long as other co-owners have no -8- R.C.R.No.59 of 2022 ## objection regarding the rights of the suing co-owner. 16. In **Sri Ram Pasricha** (supra), the Apex Court held as under: 'Jurisprudentially it is not correct to say that a coowner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place'. 17. In **Kanta Goel** (supra) the question was whether one co-lessor can on his own sue for eviction even if the other co-lessors have no objection. The question was considered in the context of Delhi Rent Control Act, 1958. Definition of the 'landlord' in Section 2(e) of the said Act reads, '2(e) 'Landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.' 18. The Apex Court considered the right of one of the co-owners to sue for eviction in the capacity of ‘landlord’ and held that a co-owner is as much an -9- R.C.R.No.59 of 2022 owner of the entire property as any sole owner of the property is. Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. Accordingly the Apex Court upheld the right of a coowner to sue for eviction for and on behalf of other co-owners also. 19. **India Umbrella Mfg. Co.** which in turn relies on **Sri.Ram Pasricha** (supra). The principles which have been affirmed in **Mohinder Prasad Jain** (supra) are that one co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. In this matter, the consent of other coowners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. 20. The definition of ‘landlord’ in Delhi Rent Control Act, 1958 is pari materia the definition of ‘landlord’ in Section 2(3) in the Kerala Act which reads, '2(3) "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf -10- R.C.R.No.59 of 2022 of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.' 21. Therefore, the principle laid down by the Apex Court in aforesaid decisions is very much binding as far as similar cases under the Kerala Act are concerned. 22. In **Raphael** (supra) the application for eviction under sub-sections (2)(b), (3), (4)(i) and (4)(ii) of Section 11 of the Act by a co-owner. One of the grounds for eviction was bonafide need of the building for own occupation. This Court confronted with a contention that the application was not maintainable for want of joining of the other coowner as applicant, had held, '3. Admittedly, even going by the case of the respondent therein, the rent control petition is instituted by a co-owner. That apart, the building was, admittedly, taken on rent, either by Devassy or his son, who is the respondent in the rent control petition. The specific plea of the respondent in the rent control petition is that after the demise of Ananthakrishnan, there was no demand or payment of rent. With the aforesaid undisputed facts, the fact of the matter is that the person in occupation, who is the respondent in the rent control petition, falls within the definition of ‘tenant’ under the Act. The person, who has filed -11- R.C.R.No.59 of 2022 the application for eviction, is admittedly, a co - owner of the property. He, therefore, falls within the definition of ‘landlord’ under the Act. Exclusive or absolute title to property is not necessary to institute a rent control petition.' 23. **Kumaran A.** (supra) again is a case where the right of a co-owner to claim eviction of the tenant without junction of other co-owners has been considered. There the petition was for eviction under Sections 11(2)(b) and 11(3) of the Act. Here also, one of the grounds for eviction was bonafide need of the building for own occupation. It was held, '8. xx xx It is trite law that every co-owner is an owner of each and every parcel of co-ownership property insofar as a third party is concerned. Catena of decisions are available for the proposition that one co-owner can file a petition for eviction of a tenant without the junction of other co-owners as long as other co-owners have no objection regarding the rights of the suing coowner.' 24. The law on the point was thus settled. Even if the eviction is sought for own occupation of the suing co-owner and the petition is filed by him without junction of the other co-owner/s, it is maintainable as long as it is not objected by the non-suing co-owner/s. The ratio in **Ibrahim** (supra) that all co-owners should join as petitioners in an -12- R.C.R.No.59 of 2022 application for eviction under Section 11(3) of the Act is against the principle laid down by the Apex Court and this Court in the abovesaid decisions.” 8. Insofar as the order of eviction granted under Section 11(3) of the Act is concerned, the learned counsel for the petitioner would contend that the need projected in the Rent Control Petition is not _bona fide_ and it is only a ruse to evict the tenant from the petition schedule shop room. The learned counsel would also contend that the landlords are having other vacant shop rooms and in such circumstances, the first proviso to Section 11(3) of the Act has application. Further, the tenant is entitled to protection under the second proviso to Section 11(3) of the Act. 9. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he _bona fide_ needs the -13- R.C.R.No.59 of 2022 building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 10. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a _bona fide_ requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the -14- R.C.R.No.59 of 2022 tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of _bona fide_ need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** , _bona fide_ requirement has to be distinguished from a mere whim or fanciful desire. The _bona fide_ requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 11. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. -15- R.C.R.No.59 of 2022 12. In the instant case, the need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is that of the 3rd respondent herein to start an office for practicing accountancy work in the petition schedule shop room. She was examined as PW1. During cross examination, nothing could be brought out to discredit the version of PW1 on the need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act. The reasoning of the authorities below in the impugned order/judgment, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 13. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. -16- R.C.R.No.59 of 2022 14. In **M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355]** the Apex Court was dealing with a case in which eviction on the ground of _bona fide_ requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in **Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141]** , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding _bona fide_ requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the -17- R.C.R.No.59 of 2022 material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question. 15. In **Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21]** the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of the vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own -18- R.C.R.No.59 of 2022 testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its nonoccupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. 16. In **Vasantha Mallan** , relying on the law laid down by the Apex Court in **M.L. Prabhakar [(2001) 2 SCC 355]** the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the -19- R.C.R.No.59 of 2022 landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not _bona fide_ . What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for nonoccupation of the premises for his alleged needs. 17. In **Dineshan Pillai P.B. v. Joseph @ Jose [2019 (3) KHC 206]** a Division Bench of this Court was dealing with a case in which one of the contentions of the tenant was that, the landlord has several other vacant buildings of his own in his possession to start the proposed business. The Division Bench noticed that, the pleadings are very vague with respect to the first proviso to Section 11(3) of the Act. It is stated that the landlord has several other buildings. No particular vacant room has been identified or pointed out in the pleadings. The Division Bench opined that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific -20- R.C.R.No.59 of 2022 pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the tenant has not discharged the initial burden of proof under the first Proviso to Section 11(3) of the Act. 18. In the instant case, though the petitioner-tenant contended that the landlords are having other rooms in the building, which are in their possession for the projected need of the 3[rd] respondent herein, no reliable materials were placed before the Rent Control Court to substantiate the said contention. No commission for local inspection was taken out during the pendency of the Rent Control Petition. After analysing the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority concurrently found that the first proviso to Section 11(3) of the Act is not attracted in the facts and circumstances of the case. The said finding of the authorities below, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. -21- R.C.R.No.59 of 2022 19. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 20. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, -22- R.C.R.No.59 of 2022 income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle -23- R.C.R.No.59 of 2022 the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 21. Insofar as the second proviso to Section 11(3) of the Act is concerned, other than the oral testimony of the tenant as RW1, no reliable materials could be brought out on record to show that the tenant is mainly depending on the income derived from the tailoring shop conducted in the petition schedule shop room for his livelihood. He has also not succeeded in proving that no other suitable buildings are available in the locality to shift the business conducted in the petition schedule shop room. In the absence of any reliable materials, the authorities below concurrently found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The said finding of the authorities below, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or -24- R.C.R.No.59 of 2022 patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 22. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. 23. 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 -25- R.C.R.No.59 of 2022 Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated 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. ## 24. In **T. Sivasubramaniam v. Kasinath Pujari** **[(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu -26- R.C.R.No.59 of 2022 Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. ## 25. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act -27- ## R.C.R.No.59 of 2022 may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 26. 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 High Court under Rent Acts operating in different States. After -28- R.C.R.No.59 of 2022 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. 27. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said - to be perverse in anyway. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been -29- R.C.R.No.59 of 2022 interfered with by the High Court while exercising revisional jurisdiction. 28. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenant under Sections 11(2)(b) and 11(3) of the Act is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the Rent Control Court and the Appellate Authority under Sections 11(2)(b) and 11(3) of the Act. 29. The learned counsel for the petitioner-tenant would submit that the tenant is conducting a tailoring shop in the petition schedule shop room and considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant may be given at least nine months' time to give vacant possession of the petition schedule shop room. 30. The learned counsel for the tenant would submit -30- ## R.C.R.No.59 of 2022 that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule shop room to the landlord. 31. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondents-landlords, considering the situation prevailing in the country on account of COVID-19 pandemic, subject to the following conditions: - (i) The respondent-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 petition schedule shop room to the petitioners-landlords within six months from the date of this order and that, he shall not induct -31- R.C.R.No.59 of 2022 third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; (ii) The respondent-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, 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 months, without any default; - (iii) Needless to say, in the event of the respondenttenant 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 petition schedule shop room will stand cancelled automatically and the petitionerslandlords will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/21/5