T.K. Chandrakanth v. Wilson Antony and Mary K.J.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943 R.C.REV.NO.272 OF 2019** **AGAINST THE JUDGMENT DATED 16.01.2019 I R.C.A.NO.85 OF 2016** **OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-VII), ERNAKULAM AND THE ORDER DATED 30.09.2016 IN R.C.P.NO.199OF 2014 OF THE RENT CONTROL COURT (III ADDITIONAL MUNSIFF), ERNAKULAM** ## **REVISION PETITIONER:** ## **T.K.CHANDRAKANTH** **AGED 64 YEARS, S/O KRISHNAN, KRISHNALAYAM HOUSE, VADUTHALA DESOM, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT,PIN-682 023.** **BY ADVS. SRI.SAJAN MANNALI SRI.AADITHYAN S.MANNALI** ## **RESPONDENTS:** **1 WILSON ANTONY AGED 49 YEARS, S/O ANTONY, BUSINESS, KANNIPARAMBIL HOUSE, VADUTHALA DESOM, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 023.** **2 MARY K.J, AGED 43 YEARS, W/O WILSON ANTONY, KANNIPARAMBIL HOUSE, VADUTHALA DESOM, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 023.** **BY ADV SRI.SHIJU VARGHESE** 2 R.C.Rev.No.272 of 2019 **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.11.2021, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.272 of 2019 ## **O R D E R** ## Ajithkumar, J. This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was filed challenging the judgment dated 16.1.2019 in R.C.A.No.85 of 2016 of the Rent Control Appellate Authority (Additional District Judge-VII), Ernakulam. The appeal was filed by the petitioner against the order dated 30.09.2016, of the Rent Control Court, Ernakulam by which, he was directed to surrender vacant possession of the petition schedule shop room under Section 11(3) of the Act to the respondents, within a period of 45 days from the date of that order. The appeal was dismissed as per the impugned judgment. 2. The respondents filed a petition for eviction under Section 11(3) of the Act. The petition schedule shop room is one among the four rooms in the first floor of the building belonging to the 1[st] respondent. The 2[nd] respondent, who is his wife and dependent, has experience in tailoring for ten years. She wanted to start a readymade manufacturing unit in the said four rooms. One among the said rooms has already been in the possession of the 1[st] respondent. Therefore, the respondents filed three Rent Control Petitions, R.C.P.Nos.197, 198 and 199 of 4 ## R.C.Rev.No.272 of 2019 2014 for eviction of the tenants in the respective rooms. The petitioner is the respondent in R.C.P.No.199 of 2014. The respondents contended that there were no other convenient rooms in their possession to start the tailoring unit. The petitioner is not depending on the income from the consultancy business being done in the petition schedule shop room and that several other convenient rooms are available in the locality for shifting the business of the petitioner. 3. The plea for eviction was resisted by the petitioner by filing an objection. He contended that 2[nd] respondent does not know tailoring. She does not want to start any business as proposed. Such a need is urged only as a ruse for eviction. If she wanted to start such a business, it could be done in the vacant room available in the building itself. One room other than the four rooms mentioned in the petition, is available in the possession of the respondents. The petitioner is depending for his livelihood solely on the income derived from his consultancy service in the petition schedule shop room. Realestate business is a part of his consultancy service. No other vacant room is available in the locality to shift his business. He, 5 R.C.Rev.No.272 of 2019 accordingly, contended that the petition deserves only to be dismissed. 4. Heard Sri.Sajan Mannali, learned counsel for the petitioner and Sri. Shiju Varghese, learned counsel for the respondents. 5. The learned counsel for the petitioner would contend that both the Rent Control Court and the Appellate Authority failed to appreciate the evidence in the correct perspective. As regards the qualification of the 2[nd] respondent, for whose purpose the petition schedule shop room is sought to be evicted, no reliable evidence was let in, but the authorities entered a finding that the need put forward was bonafide. One room in the ground floor, which is said to be in the occupation of one Mr.Sebastian and another room in the upstairs, which is lying vacant, could have been made use of by the respondents, even if the 2[nd] respondent wanted to start a business. Suppressing availability of those rooms, only the petition for eviction was filed and that also tells upon the bonafides of the landlord. 6 R.C.Rev.No.272 of 2019 6. The learned counsel for the petitioner did not harp upon much on the second proviso to Section 11(3). However, it is pointed out that the respondents’ failure to disclose details of the buildings in their possession disentitles them from claiming eviction. 7. The learned counsel appearing for the respondents, on the other hand, contended that the oral testimony of PW1 and Ext.A2, which is an acknowledgment for receiving a memorandum of expression of interest for the commencement of a readymade manufacturing unit issued by the Manager, District Industries Centre, sufficiently prove bonafides of the respondents. The learned counsel further pointed out that RW2, the 1[st] respondent in R.C.P.No.198 of 2014, a case tried together with the present one, admitted before court that the 2[nd] respondent has been doing tailoring at her residence. The learned counsel also submitted that no vacant room is available in the possession of the respondents and that fact has been proved. Apart from the oral evidence of PW1, Ext.C5(a) report submitted by PW2, the commissioner, also has been brought to our notice in that regard. 7 R.C.Rev.No.272 of 2019 8. The learned counsel appearing for the respondent submitted that the order of eviction under challenge has already been executed and the delivery effected. The learned counsel appearing for the petitioner did not dispute that fact. Despite that this revision petition requires to be decided on merits in order to give a quietus to the dispute. 9. 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 sub-section (1) shall be at its discretion. 8 ## R.C.Rev.No.272 of 2019 10. 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 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. 9 R.C.Rev.No.272 of 2019 ## 11. 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 recorded by the courts below. 12. 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 10 R.C.Rev.No.272 of 2019 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 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 re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 11 ## R.C.Rev.No.272 of 2019 ## 13. 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 order impugned before it. 14. 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 12 ## R.C.Rev.No.272 of 2019 - 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. 15. PW1 stated the circumstances which compelled the respondents to take a decision for starting the readymade manufacturing unit in the first floor rooms of their building. The 1[st] respondent runs a furniture shop on the ground floor. There is an allegation that the 1[st] respondent himself through somebody is running the business in another room in the ground floor, and not by Mr.Sebastian. But the fact remains is that the room is occupied. PW2, the Commissioner reported regarding the nature of one room said to be available vacant in the first floor of the building. It is a very small room with a grill shutter. PW2 noted that some furniture were stacked in that room. Therefore, practically the said room has also been in use. At any rate, that room is not at all sufficient or convenient for the purpose mentioned by the respondents. 13 R.C.Rev.No.272 of 2019 16. After considering all such evidence in detail, the authorities below come to the conclusion that the need urged by the respondents was genuine. It is true that the 2[nd] respondent did not mount the box. When the need set forth by the landlord is sufficiently proved by the evidence that came on record, nonexamination of the 2[nd] respondent does not have any significance. 17. Regarding the second proviso to Section 11(3) of the Act, the Advocate Commissioner reported existence of other vacant rooms near the petition schedule shop room. The report of the Advocate Commissioner, Ext.C5(a) and his oral testimony in court stand uncontroverted. The petitioner as RW3 stated that he also has been doing real-estate business, as part of the consultancy service. He however, could not prove that he is depending for his livelihood mainly on the income derived from the business being conducted in the petition schedule shop room. No documents were produced to substantiate income derived from the business conducted in the petition schedule shop room. The Rent Control Court and also the Appellate Authority concluded that the need is genuine and, tenant has 14 ## R.C.Rev.No.272 of 2019 not succeeded in proving that he is entitled to get the protection of the first or second proviso to Section 11(3) of the Act. 18. Viewed in the light of the principles laid down in the decisions mentioned above, the findings of the Rent Control Court and that of the Appellate Authority are neither perverse, improper nor illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 19. Hence this Revision Petition fails. We, accordingly, dismiss it. No costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 15 R.C.Rev.No.272 of 2019 ## **APPENDIX OF R.C.REV.NO.272 OF 2019** |**PETITIONER ANNEXURE**|**PETITIONER ANNEXURE**| |---|---| |**ANNEXURE A1**|**COPY OF THE ORDER OF RENT CONTROL**| ||**TRIBUNAL IN R.C.P.NO.199 OF 2014, DATED**| ||**29.7.2016.**| |**ANNEXURE A2**|**COPY OF THE JUDGMENT OF ADDL.DISTRICT**| ||**COURT (NON-VII)ERNAKULAM IN R.C.A 85 OF**| ||**2016 DATED 16.1.2019.**| |**ANNEXURE A3**|**COPY OF THE PETITION IN E.A.NO.174 OF**| ||**2020 IN E.P.NO.213 OF 2019 IN**| ||**R.C.P.NO.199 OF 2014 DATED 17.06.2020**| ||**FILED BEFORE THE PRINCIPAL MUNSIFF,**| ||**ERNAKULAM.**| |**ANNEXURE A4**|**COPY OFTHE COUNTER AFFIDAVIT DATED**| ||**19.01.2021 FILED BY THE RESPONDENT/**| ||**RESPONDENT/PETITIONER**<br>**BEFORE**<br>**THE**| ||**PRINCIPAL MUNSIFF IN E.AANO.174 OF 2020**| ||**IN E.P.NO.213 OF 2019 IN R.C.P.NO.199**| ||**OF 2014.**|