Thajudeen v. Shihabudeen

# **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 6[TH] DAY OF DECEMBER 2021/15TH AGRAHAYANA, 1943** **RCREV. NO. 173 OF 2021 AGAINST THE JUDGMENT DATED 27.08.2021 IN R.C.A.NO.3 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (III ADDITIONAL DISTRICT COURT), KOLLAM** **AGAINST THE ORDER DATED 30.11.2019 IN R.C.P.NO.26 OF 2017 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF COURT),** ## **KOLLAM** ## **PETITIONER/APPELLANT/RESPONDENT:** **THAJUDEEN, AGED 61 YEARS ISMAIL KUNJU, FEMINA MANZIL, PANDALAYIL, VADAKKEVILA P.O.VADAKKEVILA VILLAGE, KOLLAM** **BY ADVS.E.M.MURUGAN P.RAKESH (VAIKOM) P.R.PRATEESH** ## **RESPONDENT/RESPONDENT/PETITIONERS:** **SHIHABUDEEN,AGED 59 YEARS S/O YUSUF KUNJU, SASTHAVINTE PADINJATTATHIL, VADAKKEVILA P.O.KOLLAM** **BY ADV P.ANJANA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- RCREV. NO. 173 OF 2021 ## **ORDER** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.(OP)No.26 of 2017 on the file of the Additional Rent Control Court (Additional Munsiff), Kollam, a petition filed by the respondent herein-landlord under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. The bona fide need projected in the Rent Control Petition was that of the landlord to start a tea shop in the petition schedule shop room, for his livelihood. In the Rent Control Petition, the tenant entered appearance and filed counter statement. The landlord was examined as PW1 and Exts.A1 to A12 were marked on his side. The tenant was examined as RW1. He has not chosen to produce any documents. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected by the landlord in the Rent Control Petition for seeking eviction under Section 11(3) of the Act is bona fide. The first proviso to Section 11(3) of the Act has no application in the facts of the case and the -3- RCREV. NO. 173 OF 2021 tenant is not entitled to protection under the second proviso to Section 11(3) of the Act. Accordingly, the Rent Control Court, by the order dated 30.11.2019, directed the tenant to give vacant possession of the petition schedule shop room to the landlord under Section 11(3) of the Act, within a period of two months from the date of that order. Considering the nature and circumstances of the case, the parties were directed to suffer their respective cost. 2. Challenging the order of eviction granted by the Rent Control Court in R.C.(OP)No.26 of 2017, the tenant filed R.C.A.No.3 of 2020 before the Rent Control Appellate Authority (III[rd] Additional District Judge), Kollam, invoking the provisions under Section 18(1)(b) of the Act. After considering the rival contentions, the Appellate Authority, by the judgment dated 27.08.2021 confirmed the order of eviction granted by the Rent Control Court under Section 11(3) of the Act and accordingly, dismissed that appeal. 3. Challenging the order dated 30.11.2019 of the Rent Control Court in R.C.(OP)No.26 of 2017 and also the judgment dated 27.08.2021 of the Rent Control Appellate Authority in -4- RCREV. NO. 173 OF 2021 R.C.A.No.3 of 2020, the petitioner-tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. The learned counsel for the petitioner-tenant would confine the challenge made in this Rent Control Revision as against the finding on the second proviso to 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 judgment dated 27.08.2021 of the Rent Control Appellate Authority in R.C.A.No.3 of 2020 and also the order dated 30.11.2019 of the Rent Control Court in R.C. (OP)No.26 of 2017, insofar as the finding on the second proviso to Section 11(3) of the Act is concerned. 6. The learned counsel for the petitioner-tenant would contend that considering the pleadings and materials on record, the Rent Control Court and also the Appellate Authority ought to have accepted the case of the tenant that he is entitled to protection under the second proviso to -5- RCREV. NO. 173 OF 2021 Section 11(3) of the Act. 7. Per contra, the learned counsel for the respondentlandlord would contend that the finding of the Rent Control Court and also that of the Appellate Authority that the tenant is not entitled for protection under the second proviso to Section 11(3) of the Act is neither perverse nor patently illegal, which warrants no interference invoking the revisional jurisdiction of this Court under Section 20 of the Act. 8. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. As per Section 11(1) of the Act, 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 this Act. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the -6- RCREV. NO. 173 OF 2021 building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the first proviso to Section 11(2)(b), an application under this subsection shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of -7- RCREV. NO. 173 OF 2021 one month or such further period, as the case may be, it shall vacate that order. 9. 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 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. 10. 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. -8- RCREV. NO. 173 OF 2021 11. 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, 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 -9- RCREV. NO. 173 OF 2021 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 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. 12. In the instant case, the tenant was examined as -10- RCREV. NO. 173 OF 2021 RW1. He has not chosen to produce any materials to show that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule shop room. RW1 has admitted that he is conducting planton business in two adjacent shop rooms owned by him, in addition to the petition schedule shop room. Though it was contended by the tenant that furnace is available only in the petition schedule shop room, the evidence of PW1 is that furnace is available in all shop rooms. The Rent Control Court and also the Appellate Authority, after analysing the materials on record rightly concluded that the tenant has not succeeded in proving that he is entitled to get the protection under the second proviso to Section 11(3) of the Act. 13. 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 -11- RCREV. NO. 173 OF 2021 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. 14. 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 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 -12- RCREV. NO. 173 OF 2021 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. ## 15. 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 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 -13- RCREV. NO. 173 OF 2021 with such a finding recorded by the courts below. 16. 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 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 -14- RCREV. NO. 173 OF 2021 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. 17. 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 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 -15- RCREV. NO. 173 OF 2021 order impugned before it. 18. 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 any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 19. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the finding in the judgment of the Appellate Authority in R.C.A.No.3 of 2020 and the order of the Rent Control Court in R.C. (OP)No.26 of 2017 that the tenant is not entitled for protection under the second proviso to Section 11(3) of the Act is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the -16- RCREV. NO. 173 OF 2021 Act. Therefore, we find no reason to interfere with the order of eviction passed against the petitioner-tenant under Section 11(3) of the Act, which now stands confirmed by the Rent Control Appellate Authority. 20. The learned counsel for the petitioner-tenant would submit that the tenant may be given at least six months' time to give vacant possession of the petition schedule shop room to the landlord. 21. The learned counsel for the respondent-landlord would submit that in order to vacate the petition schedule shop room, two months' time can be granted to the petitioner-tenant. 22. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and the order of the Rent Control Court; however by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, considering the situation prevailing in the Country on account of COVID-19 pandemic, subject to the -17- RCREV. NO. 173 OF 2021 ## 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 petitioner-landlord within three four from the date of this order and that, he shall not induct 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 four 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 RCREV. NO. 173 OF 2021 -18- room will stand cancelled automatically and the petitioner-landlord 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/10/12