Thankamani v. H.K. Vasudeva and H. Lalitha

RCRev.No.14 of 2024 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ## **`THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON`** ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ## **`RCREV. NO. 14 OF 2024`** ``` AGAINST THE ORDER/JUDGMENT DATED 31.10.2023 IN RCA NO.5 OF 2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD / III ADDITIONAL MACT, KASARAGODE ARISING OUT OF THE ORDER/JUDGMENT DATED 28.03.2018 IN RCP NO.5 OF 2016 OF MUNSIFF COURT, HOSDRUG ``` ``` ------- ``` ## **`REVISION PETITIONER/S:`** ``` THANKAMANI, AGED 50 YEARS, ``` ``` RESIDING AT LAKSHMI NAGAR, THERUVATH, HOSDURG VILLAGE, HOSDURG TALUK, P.O. KANHANGAD, KASARAGOD DISTRICT, PIN – 671315. ``` ``` BY ADVS. ``` ``` K.JAYESH MOHANKUMAR PUSHPARAJAN KODOTH VANDANA MENON VIMAL VIJAY ``` ## **`RESPONDENT/S:`** - **`1 H.K. VASUDEVA, AGED 70 YEARS, S/O. H.K. KRISHNAN, RESIDING AT LAKSHMI NILAYAM, ALAMIPALLY, HOSDURG VILLAGE AND TALUK, P.O. KANHANGAD, KASARAGOD, PIN – 671315.`** - **`2 H. LALITHA, AGED 58 YEARS, W/O. H.K. VASUDEVA, RESIDING AT LAKSHMI NILAYAM, ALAMIPALLY, HOSDURG VILLAGE AND TALUK, P.O. KANHANGAD, KASARAGOD, PIN – 671315.`** ``` BY ADVS. SURESH KUMAR KODOTH SUKARNAN(K/001572/2021) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev.No.14 of 2024 2 ## **ORDER** ## **Harisankar V. Menon, J.** This revision petition is filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act) by the tenant in RCP No.5 of 2016 before the Rent Control Court (Munsiff), Hosdurg. The Rent Control Court allowed the claim for eviction made by the respondent-landlord under the provisions of Sections 11(2)(b) and 11(3) of the Act. Though an appeal is preferred by the petitioner herein as RCA No.5 of 2018, the Rent Control Appellate Authority-III(Additional District Judge-III), Kasaragod, has only modified the orders of eviction by setting aside the findings with respect to the provisions of Section 11(2) of the Act. At the same time, the findings rendered by the Rent Controller under Section 11(3) of the Act are confirmed, thereby rejecting the appeal filed by the petitioner herein. It is against the above orders, that the present revision petition is filed by the petitioner-tenant under Section 20 of the Act. 2. The case put forward by the respondent-landlord RCRev.No.14 of 2024 3 before the Rent Controller was to the effect that the scheduled property was taken on rent by the petitioner-tenant for a monthly rent of Rs.2,300/-. It is contended that the petitioner-tenant defaulted payment of rent from November, 2015 onwards, and hence, an eviction under Section 11(2) of the Act is to be ordered. There was a further claim under Section 11(3) of the Act by the respondent-landlord, contending that though he was working abroad, he has returned recently, and the second respondent herein, who was not having any avocation, wanted to start a 'ladies fancy shop'. The petitioner-tenant disputed both of the above claims. Oral as well as the documentary evidence were relied on by the petitioner-tenant and the respondent-landlord. By an order dated 28.03.2018, the Rent Controller ordered eviction on both counts. 3. The petitioner-tenant therefore, filed RCA No.5 of 2018 before the Rent Control Appellate Authority-III(Additional District Judge-III), Kasaragod. It was contended before the said authority that the findings rendered by the Rent Controller under Sections 11(2) as well as 11(3) of the Act were erroneous and there is no arrears of rent as contended by the landlords, that RCRev.No.14 of 2024 4 _bona fide_ need for starting a ladies fancy shop by the second respondent herein, was only a ruse to evict the petitioner herein. 4. The Rent Control Appellate Authority, by an order dated 31.10.2023 has come to the finding that the rent payable was at the rate of Rs.2,300/-, that there is no arrears of rent and therefore, the finding rendered by the Rent Controller with respect to the provisions of Section 11(2) of the Act was incorrect. The eviction ordered under Section 11(2) of the Act was _set aside_ . At the same time, the findings rendered by the Rent Controller with respect to the provisions under Section 11(3) of the Act on account of the _bona fide_ need pointed out were accepted by the Rent Control Appellate Authority. Therefore, the eviction ordered by the Rent Controller under Section 11(3) of the Act was upheld. The contentions raised by the petitioner-tenant with respect to the second proviso to Section 11(3) of the Act were rejected. It is against the above findings rendered by the Rent Control Appellate Authority, that the present rent control revision is filed under Section 20 of the Act. 5. We have heard the learned counsel appearing for the petitioner-tenant and the learned counsel appearing for the RCRev.No.14 of 2024 5 respondents-landlords. We have also perused the orders issued by the Rent Controller as well as the Appellate Authority referred to above. 6. It is contended by the learned counsel for the petitionertenant that he was conducting the business from 2007 onwards and it is only when the first respondent started a business in the adjoining room that he filed the present petition to evict the petitioner-tenant so as to close down the shop in the pretext of starting a new business in the said premises. The shop room in which the ladies fancy shop is proposed to be started is a place with least public accessibility, which is clear from the report of the Advocate Commissioner in the year 2018, that non-disclosure of the vacant room directly in possession of the landlords in the Rent Control Petition is without any justification. 7. It is under the provision of Section 20 of the Act that this revision petition is presented before this Court by the petitionertenant. A reading of Section 20 of the Act would make it clear that this Court while considering a revision petition filed under Section 20 of the Act is not acting as a first or second court of appeal. It is only a revisional jurisdiction that is conferred upon RCRev.No.14 of 2024 6 this Court. Every order issued by the Rent Control Court and Rent Control Appellate Authority cannot be interfered by this Court. There cannot be any re-appreciation of evidence also. In this connection, the decision rendered by the Apex Court in **Rukmini** **Amma Saradamma V. Kallyani Sulochana and Others [(1993) 1 SCC 499]** is referred to. In the said judgment, at paragraph 20, the Apex Court has laid down the scope and ambit of Section 20 of the Act as follows: “20. We are afraid this approach of the High Court is wrong. 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 (Exts.C1 and C2 mahazar). In our considered view, 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 reappreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the RCRev.No.14 of 2024 7 ## exercise of revisional jurisdiction.” 8. In the light of the above principles laid down by the Apex Court, the re-appreciation of the evidence as contended by the petitioner-tenant cannot be carried out in this revision petition. The above principles laid down by the Apex Court have been later approved by a constitution bench in the decision reported as **Hindustan Petroleum Corporation Limited V. Dilbahar Singh [(2014) 9 SCC 78]** and again in the decision rendered as **Thankamony Amma and Others v. Omana Amma N. and Others [AIR 2019 SC 3803]** . 9. Having considered the submissions made as well as the orders of the Rent Control Court and the Appellate Authority, we are of the view that the findings rendered by the said authorities cannot be found fault in any manner. The Rent Control Appellate Authority has considered elaborately the submissions made before it with respect to the alleged rooms which were lying vacant in the possession of the respondents-landlords. The Appellate Authority has categorically found that the evidence tendered by the petitioner-tenant cannot be considered in the light of the report of the Advocate Commissioner, who has RCRev.No.14 of 2024 8 categorically found that all three rooms were being occupied by other tenants. The oral evidence given by the Advocate Commissioner referred to the report with reference to the room No.X/264 (A4) to the effect that the said room, which cannot be used as a ladies fancy shop room, is also to be noticed. Similarly, the claim of the petitioner-tenant under the second proviso to Section 11(3) of the Act is also rejected by the Appellate Authority, relying on the report of the Advocate Commissioner and the oral evidence of the petitioner-tenant before the Rent Control Court, in which, she has admitted that several other rooms are lying vacant. 10. In such circumstances, we are of the view that the orders issued by the Rent Control Court as confirmed by the Rent Control Appellate Authority with respect to the findings under Section 11(3) of the Act cannot be faulted with. Therefore, the present revision petition is only to be dismissed. 11. The learned counsel for the petitioner-tenant, in such circumstances, prayed that the petitioner-tenant may be granted six months time to vacate the scheduled shop room. RCRev.No.14 of 2024 9 12. On the above submission made by the learned counsel for the petitioner-tenant, the learned counsel for the respondentlandlord would submit that the landlord has no objection in this Court granting a reasonable time to the tenant for surrendering vacant possession of the scheduled shop room, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 13. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and the impugned order of the Rent Control Court; however, by granting four months' time to the petitioner-tenant, to surrender vacant possession of the scheduled shop room to the respondentslandlords 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 scheduled shop RCRev.No.14 of 2024 10 room to the petitioners-landlords within four months from the date of this order and that, she shall not induct third parties into possession of the scheduled shop room and further she shall conduct any business in the scheduled 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 respondent-tenant 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 shop room will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. Sd/- **Sd/-** **HARISANKAR V. MENON, JUDGE** ln