Thalakkal Ayisha and Firos v Bindhu Jayaprakasan

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 ``` ## **`RP NO. 45 OF 2023`** ``` AGAINST THE ORDER RCRev. 147/2021 DT 7/11/2022 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/S:`** ``` 1THALAKKAL AYISHA AGED 62 YEARS D/O. HASSANAR, THALAKKAL HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673309 2FIROS AGED 44 YEARS S/O.AYISHA, THALAKKAL HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN – 673309 BY ADV T.M.ABDUL LATHIEF ``` ## **`RESPONDENT/S:`** ``` BINDHU JAYAPRAKASAN AGED 49 YEARS D/O. KARUNAKARAN, RESIDING AT VALIYA PARAMBATH HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR P.O VATAKARA TALUK, KOZHIKODE, PIN – 673309 ``` ``` BY ADV U.K.DEVIDAS ``` SHRI K.K.ANIL RAJ ``` THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 16/11/2023, THE COURT ON 16/1/2024 DELIVERED THE FOLLOWING: ``` ``` RP 45/2023 in RCR 147/2021 ``` **==> picture [22 x 8] intentionally omitted <==** ## **O R D E R** ``` A.Muhamed Mustaque, J. ``` ``` The review is filed by the landlord. The landlord was the revision petitioner before this Court. Landlord was unsuccessful throughout in claiming eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (‘Rent Control Act’ for short). This provision is related to claiming eviction on the ground of bona fide need. The Rent Controller found the claim for eviction is genuine but dismissed the rent control petition on a question relating to the identity of the leased building. The appellate court reversed the finding on the identity but found that the claim for eviction under Section 11(3) was not bona fide. In revision, we found that the finding of the appellate court on bona fide need was perverse and illegal. However, we noted that the tenant is entitled to protection as her main source of livelihood is from the leased building and there are no similar buildings in the locality to shift the business. We, on that ground, affirmed the finding of ``` ``` RP 45/2023 in RCR 147/2021 ``` -:3:- ``` the appellate authority in regard to the second proviso which empowered protection to the tenant from eviction. Accordingly, we dismissed the revision. In this review, the landlord seeks review of the finding under the second proviso to Section 11(3) of the Rent Control Act. ``` ``` 2. We heard the learned counsel for the review petitioner Shri Abdul Lathief and the learned counsel Shri K.K.Anil Raj for the tenant. ``` ``` 3. The first question arises before us is regarding the maintainability of the review petition. Parties were allowed to address on this question. The learned counsel Shri Abdul Lathief appearing for the landlord submitted that the review petition is maintainable as the power of this Court in revision includes to revise any finding of fact which was rendered by the authorities below which is perverse and no Tribunal could arrive at such a conclusion on the evidence on record. Therefore, it is argued that the revisional power being wide, there is no difficulty to hold that the review petition is maintainable. He placed his argument relying on the following precedents regarding revisional and review powers of this Court: ``` ## `RP 45/2023 in RCR 147/2021` ## -:4:- - **`Subbiah Reddiar v. Chinnamma (1991) 2 KLT 461`** - _**`N.P. Balakrishnan v. P.M.R. Mariyumma [AIR 1997 Ker 89]`**_ - _**`Ajit Singh v. Jit Ram [(2008) 9 SCC 699]`**_ - _**`Rajesh R. Kartha v. K. A. Ismail [2015 (4) KHC 408]`**_ - _**`Central Bank of India v. SC/ST Employees Welfare Assn. [(2016) 13 SCC 135]`**_ - _**`Kabari (P) Ltd. v. Shivnath Shroff [AIR 1996 SC 742]`**_ - _**`Mahamaya Banerjee, In re [AIR 1989 Cal 106]`**_ - _**`National Insurance Co. Ltd. v. LIC of India, [(1964) 2 SCR 182 : AIR 1963 SC 1911]`**_ - _**`Usha Bharti v. State of U.P. [(2014) 7 SCC 663]`**_ - _**`Green View Tea & Industries v. Collector, Golaghat, [(2004) 4 SCC 122]`**_ - _**`Shipping Corpn. of India Ltd. v. Machado Bros. [(2004) 11 SCC 168]`**_ - _**`Puran Singh v. State of Punjab [AIR 1996 SC 1092]`**_ - _**`Kurian K. Kuriakose v. Usha Cherian [(2008) 1 KLT 739]`**_ - _**`T.V. Sasasivan Chettiar v. Rajendran [(2005) 1 KLT 653]`**_ - _**`Vasantha Bhagavalsingh v. Anthony [(2012) 2 KLT 829]`**_ ## `RP 45/2023 in RCR 147/2021` ## -:5:- ## • _**`Velunni v. Appu [1986 SCC OnLine Ker 69 : 1986 KLT 506]`**_ ``` Per contra, the learned counsel for the tenant argued that there is no power conferred upon this court to review a judgment rendered in revision. According to the learned counsel, this is for the reason that revisional power is not for re-appreciating any finding of fact but to find legality of the order on a well defined parameters referred to in Section 20 of the Rent Control Act. The learned counsel further referred to Section 23 of the Rent Control Act and argued that the statutory provisions in Section 23 conferred power only on accommodation controller, rent controller and appellate authority to exercise the power of review of its own order and not on the revisional court. ``` ``` 4. The power exercised by this Court invoking revisional jurisdiction under Section 20 is based on statutory provision. The question is that in the absence of specific statutory power conferred on this Court, does this Court have power to review its own order passed under Section 20. To understand this question, we need to refer to the power of this Court under Section 20. It is appropriate to refer Section 20 which reads thus: ``` ``` RP 45/2023 in RCR 147/2021 ``` ## -:6:- ``` 20. Revision. - (1) 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. ``` (2) The costs of an incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion. ``` 5. The revisional power of this Court is confined to satisfying itself as to the legality, regularity or propriety of such order passed or proceedings taken by the rent controller or the appellate authority. That means, this Court cannot re- appreciate finding of facts or evidence, though finding of facts is open to challenge on the parameters referred therein. [See the judgment of this Court in Subbiah Reddiar v. Chinnamma (1991 (2) KLT 461)] ``` ``` 6. That means, the revisional court exercises only power on a mixed question of fact and law to find out whether law was applied correctly to the finding of facts. In that exercise, this Court, in fact, looking at the finding of facts in a perspective of law that would apply in such matters. It is not an exercise to re-enter any findings of facts but to hold that whether law was applied correctly on the facts disclosed in the ``` ``` RP 45/2023 in RCR 147/2021 ``` -:7:- ``` evidence. The Court cannot re-appreciate evidence to enter into a different finding of facts, unless the fact findings in marshalling evidence are perverse, and no authority below could have arrived at such a conclusion based on evidence on record. ``` ``` 7. The power of review can be exercised by any revisional court or appellate court or Tribunal only when such power is conferred on them. The power of review is a statutory creation. Section 23 of the Rent Control Act is clear on the subject which reads thus: ``` ``` 23. Summons etc. - (1) Subject to such conditions and limitations as may be prescribed, the Accommodation Controller, the Rent Control Court, and the appellate authority shall have the powers which are vested in a court under the Code of Civil Procedure, 1908(V of 1908), when trying a suit in respect of the following matters:- ``` - `(a) discovery and inspection;` - `(b) enforcing the attendance of witnesses and requiring the deposits of their expenses;` - `(c) compelling the production of documents;` - `(d) examining witnesses on oath;` - `(e) granting adjournments;` - `(f) reception of evidence taken on affidavit;` - `(g) issuing commission for the examination of witnesses and for local inspection;` ## `RP 45/2023 in RCR 147/2021` -:8:- ``` (h) setting aside ex parte orders; ``` ``` (i) enlargement of time originally fixed or granted; ``` ``` (j) power to amend any defect or error in orders or proceedings, and ``` ``` (k) power to review its own order. ``` ``` (2) The Accommodation Controller, the Rent Control Court or the appellate authority may summon and examine suo motu any person whose evidence appears to it to be material; and it shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (V of 1898). ``` ``` On reading the statutory provisions as above, it is clear that lawmakers did not, intend to confer the power on this Court in exercising revision, to subject its order for review. This is obvious for the reason that law only conferred a limited power on this Court under Section 20 to revise the orders passed by the revisional court, appellate court or Tribunal. ``` ``` 8. We considered fact finding and affirmed the order of the appellate authority in regard to powers exercised under Section 11(3). The appreciation of the evidence on record is a purely question of fact. Present attempt of the petitioner is to point out the dearth of evidence on record. We in fact noted the availability of the evidence on record. We may not be able ``` ``` RP 45/2023 in RCR 147/2021 ``` -:9:- ``` to take a different conclusion in a revisional jurisdiction. For the same reason we also cannot exercise review power even if such review is admissible. We find no merit in this review petition. The review petition, is therefore, dismissed. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ```