Thankamma v. Joy 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 TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943 R.C.REV.NO.170 OF 2021** **AGAINST THE ORDER IN R.C.A NO.37 OF 2020 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA DATED 18.03.2021 AGAINST THE ORDER IN R.C.P No.2 OF 2018 OF THE RENT CONTROL COURT, KOLENCHERY DATED 28.07.2020** ## **REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP:** **THANKAMMA** **AGED 62 YEARS W/O.N.L.CHACKO, POPULAR GARMENTS, RESIDING AT NEERPARAKKALAYIL HOUSE, KOLENCHERRY P.O., ERNAKULAM DISTRICT, PIN 682 311** **BY ADVS. ELDHO PAUL TESSY JOSE JOHNY CHERIAN** ## **RESPONDENTS/RESPONDENTS IN RCA/PETITIONERS IN RCP:** **1 JOY AGED 64 YEARS** **S/O.KURIAKOSE, THANIKAMATTATHIL HOUSE, THONNIKKA KARA, KOLENCHERRY P.O., 682 311, AIKARANADU NORTH VILLAGE** **2 LISSY THAMPI AGED 54 YEARS W/O.LATE THAMPI, THANIKAMATTATHIL HOUSE, THONNIKKA KARA, KOLENCHERRY P.O., 682 311 (LEGAL HEIR OF 2ND PETITIONER IN R.C.P)** 2 R.C.Rev.No.170 of 2021 ## **3 CHANDU AGED 33 YEARS** **S/O.LATE THAMPI, THANIKAMATTATHIL HOUSE, THONNIKKA KARA, KOLENCHERRY P.O., 682 311 (LEGAL HEIR OF 2ND PETITIONER IN R.C.P)** **4 NANDU AGED 30 YEARS** **S/O.LATE THAMPI, THANIKAMATTATHIL HOUSE, THONNIKKA KARA, KOLENCHERRY P.O., 682 311 (LEGAL HEIR OF 2ND PETITIONER IN R.C.P)** **BY ADVS.** **K.R.VINOD M.S.LETHA K.S.SREEREKHA PAUL P. MATHEW** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.170 of 2021 ## **O R D E R** ## Ajithkumar, J. The petitioner is the tenant. Respondent No.1 along with his brother, who is now no more, had filed R.C.P.No.2 of 2018 before the Rent Control Court(Munsiff), Kolenchery, seeking eviction of the petitioner under Section 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court as per order dated 28.07.2020 ordered eviction under Section 11(3) of the Act. The petitioner filed an appeal as provided in Section 18(1)(b) of the Act. The Appellate Authority dismissed the appeal, R.C.A No.37 of 2020 as per the judgment dated 18.03.2021. Feeling aggrieved thereof, the petitioner invoking jurisdiction of this Court under Section 20 of the Act, has filed this Revision Petition. 2. The brother of respondent No.1 died during pendency of the R.C.P. His legal representatives were impleaded in the R.C.P and they are respondent Nos.2 to 4 herein. 3. Petition for eviction was filed with the contention that petitioner was in default of payment of monthly rent from 4 R.C.Rev.No.170 of 2021 01.04.2016 onwards, and that respondent No.1 wanted the petition schedule room for accommodating his grocery business which he is conducting now in a rented building. Respondent No.1 proposed to start the grocery business in the petition schedule shop room together with its adjoining room, which is in the possession of the husband of the petitioner. 4. The petitioner filed a counter statement. She refuted the allegation that there has been arrears of rent. It was further contended that the need urged was not bonafide inasmuch as the respondent No.1 has in his possession, several other vacant rooms convenient for his purpose. It was further contended that the petitioner has been depending solely on the income derived from the business in the petition schedule shop room for her livelihood and no other suitable room is available in the locality to shift her business. Another contention raised was that the 1[st] respondent and his brother have another building having 12 rooms of which 6 rooms are lying vacant. 5. The Rent Control Court recorded oral evidence of PW1 and DW1. Exts.A1 to A4 were received in evidence. After 5 R.C.Rev.No.170 of 2021 hearing both sides, the Rent Control Court rejected the plea for eviction under Section 11(2) (b) of the Act and allowed the petition with respect to Section 11(3). The Appellate Authority re-appreciated the entire evidence for considering the contentions reiterated by the petitioner before it. The Appellate Authority dismissed the appeal, confirming all the findings of the Rent Control Court. The petitioner now assails findings of the Rent Control Court as well as the Appellate Authority. 6. On 25.11.2021, this Court admitted the Revision Petition directing notice to the respondents and stayed execution of the order of eviction for a period of two months. 7. Today, we heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 8. The learned counsel appearing for the petitioner raised a two-pronged contention to assail the need urged by the respondents. Firstly, there is no requirement for respondent No.1 to shift his business from the present building and, secondly, several other vacant rooms are available in the 6 R.C.Rev.No.170 of 2021 possession of the respondents suitable for shifting the business. Pointing out availability of other vacant rooms in the possession of the respondents, the petitioner claims benefit of the 1st proviso to Section 11(3) as well. The learned counsel for the petitioner also has canvassed for a finding that the petitioner is entitled to get the benefit of the 2nd proviso to Section 11(3) of the Act. 9. The learned counsel appearing for the respondents, on the other hand, would contend that all such points were meticulously considered by the authorities below and the findings rendered and eviction ordered by both the authorities are factually and legally correct. 10. The issue that arises for consideration is as to, whether the judgment dated 18.03.2021 of the Appellate Authority and order dated 28.07.2020 of the Rent Control Court require any interference? 11. The plea of the respondents that the 1[st] respondent has been conducting a grocery shop in a rented building which is situated some distance away, in the same city is proved by 7 R.C.Rev.No.170 of 2021 sufficient evidence. DW1, the petitioner admitted also that fact. It has come out in evidence that the 1[st] respondent has been paying a rent of Rs.6000/- per month for that room which has an area of about 500 sq.feet. Undisputedly, the petition schedule shop room and its adjoining room which is in the possession of the petitioner's husband have an area of 200 sq.ft. each. PW1 deposed before court that he wanted to shift his business from the rented building to the petition schedule shop room and its adjoining room which are in the ownership of the respondents. 12. The question then is whether respondents' decision to choose the petition schedule room, while they have other rooms also in their ownership, is tainted with any malafides. Although the petitioner contended that 6 rooms in another building belonging to the respondents are lying vacant, there is nothing on record to show that the 1[st] respondent has ownership to the said building. Of course, PW1 admitted that the other building has 10 rooms and except two, all rooms have been let out. The effect of that solitary statement has been considered in detail by 8 R.C.Rev.No.170 of 2021 both the authorities below. It was found that there was no unequivocal admission by PW1 that he or the other respondents have in their possession such 2 vacant rooms. It is in evidence that the other building having 10 rooms is a lodge building where obviously a grocery shop cannot be housed. When both the authorities below after considering the evidence in detail arrived at the finding that no other suitable room or building owned by the respondents is available vacant for the purpose set forth by respondent No.1, this Court in exercise of the powers under Section 20 of the Act cannot set those findings at naught unless there is sufficient reason to say that such findings are totally illegal and perverse. 13. Section 20 of the Act deals with revision. As per subsection (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 9 R.C.Rev.No.170 of 2021 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 sub-section (1) shall be at 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 reappreciated 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 reappreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled 10 R.C.Rev.No.170 of 2021 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 with such a finding 11 R.C.Rev.No.170 of 2021 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 a 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 12 R.C.Rev.No.170 of 2021 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. 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, 13 R.C.Rev.No.170 of 2021 ## regularity and propriety of the 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. In the light of the principles adverted to above, the inevitable conclusion shall be that the respondents proved the bonafide need and the petitioner failed to substantiate the contention that she is entitled to get the benefit of the 1[st] Proviso to Section 11(2) of the Act. 20. As per the 2[nd] 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 14 R.C.Rev.No.170 of 2021 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. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the 2[nd] proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 21. Only evidence on which the petitioner places reliance on, to claim benefit of the 2[nd] proviso is her oral testimony. Entire evidence she tendered before the Court in this respect is so evasive. Even, to a question whether her husband has constructed 6 apartments in his own property, she feigned ignorance. What was her income from the business in the petition schedule shop room and the income of her husband are not tried to be proved by adducing any reliable evidence. The assertion of the petitioner that several suitable rooms are available in the locality on a lesser rate of rent, for shifting the 15 R.C.Rev.No.170 of 2021 business of the 1[st] respondent certainly fails her plea with reference to the 2[nd] limb of the 2[nd] proviso to Section 11(3) of the Act. It follows that the petitioner is not entitled to get protection of the 2[nd] proviso to section 11(3) of the Act. 22. Having considered all the aforesaid aspects, we are of the definite view that there is no reason to interfere with the findings in the judgment of the Appellate Authority or order of the Rent Control Court. Those are not suffering from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 23. The learned counsel for the petitioner requested at least six months time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The learned counsel for the respondents is agreeable to grant six months’ time. 24. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: 16 ## R.C.Rev.No.170 of 2021 - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that she 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, she shall not induct third parties into possession of the petition schedule shop room and further that she will 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 respondent-tenant in 17 R.C.Rev.No.170 of 2021 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 petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** PV