T.K. Ibrahim and Ayishabi d/o Kunji Abdul Rahiman Haji v. N.A. Abdulla

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,** ## **1944** **RCREV. NO. 387 OF 2017** **AGAINST THE ORDER IN RCP NO.18 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KASARAGOD CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.7 OF 2015 OF RENT CONTROL APPELLATE AUTHORITY, KASARAGOD** ## **REVISION PETITIONERS/(APPELLANTS/PETITIONERS):** **1 T.K.IBRAHIM, AGED 63 YEARS S/O.KUHAMMED MUSLIAR,AGED ABOUT 61 YEARS,KUNIYA,P.O.PERIYA, HOSDURG TALUK, KASARAGOD-671316.** **2 AYISHABI D/O.KUNJI ABDUL RAHIMAN HAJI, AGED ABOUT 53 YEARS, KUNIYA, P.O.PERIYA, HOSDURG TALUK, KASARAGOD -671316,BOTH ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, B.ABBAS HAJI, S/O.MOHAMMAD,AGED 73 YEARS, RESIDING AT MUBARAK MANZIL, KUNIYA,P.O.PERIYA, HOSDURT TALUK, KASARAGOD-671316.** **BY ADVS. SRI.D.KRISHNA PRASAD SMT.MINI V.MENON SMT.S.SANTHY SRI.P.VISHNU PRASAD** ## **RESPONDENT (RESPONDENT/RESPONDENT):** ## **N.A.ABDULLA** **AGED ABOUT 58 YEARS, S/O.N.A.ABDUL KHADER, DOOR NO.K.M.C.11/76, DARUSALAM BUILDING, CHANDRAGIRI JUNCTION,KASARAGOD VILLAGE,KASARAGOD-671121.** R.C.Rev.Nos.387 & 391 of 2017 -: 2 :- **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.12.2022, ALONG WITH RCRev..391/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos.387 & 391 of 2017 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,** ## **1944** **RCREV. NO. 391 OF 2017** **AGAINST THE JUDGMENT DATED 28.06.2017 IN RCA NO.4 OF 2015 OF RENT CONTROL APPELLATE AUTHORITY, KASARAGOD CONCURRING WITH THE COMMON ORDER IN RCP NO.18 OF 2014 DATED 0 3.06.2015 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF),** ## **KASARAGOD** ## **REVISION PETITIONERS(RESPONDENT/PETITIONERS):** **1 T.K.IBRAHIM S/O. KUNHAMMED MUSLIAR, AGED ABOUT 61 YEARS KUNIYA, P.O PEERIYA, HOSDURG TALUK, KASARAGOD 671 316 2 AYISHABI** **S/O. KUNJI ABDUL RAHIMAN HAJI AGED ABOUT 51 YEARS, KUNIYA, P.O PERIYA, HOSDURG TALUK,KASARAGOD 671 316BOTH ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDERB.ABBAS HAJI, S/O. MOHAMMAD, AGED 73 YEARS, RESIDING AT MUBARAK MANZIL, KUNIYA P.O PERIYA, HOSDURG TALUK, KASARAGOD 671 316** **BY ADVS. SRI.D.KRISHNA PRASAD SMT.MINI V.MENON SMT.S.SANTHY SRI.P.VISHNU PRASAD** R.C.Rev.Nos.387 & 391 of 2017 -: 4 :- ## **RESPONDENT(APPELLANT/RESPONDENT):** **N.A.ABDULLA AGED ABOUT 56 YEARS,S/O. N.A ABDUL KHADER, DOOR NO K.M.C 11/76 DARUSALAM BUILDING, CHANDRAGIRI JUNCTION, KASARAGOD VILLAGE, KASARAGOD 671 121** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.12.2022, ALONG WITH RCRev..387/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos.387 & 391 of 2017 -: 5 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------R.C.Rev.Nos.387 & 391 of 2017** ## **----------------------------------------------Dated this the 9[th] day of December, 2022.** ## **ORDER** ## **P.B.Suresh Kumar, J.** These revision petitions arise from a proceedings for eviction of a tenant under Sections 11(2)(b), 11(4)(i) and 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). The petitioners are the landlords in the proceedings. Though the Rent Control Court ordered eviction under Sections 11(2)(b) and 11(4)(i), it declined the eviction sought under Section 11(4)(ii). Both the tenant as well as the landlords challenged the decision of the Rent Control Court in appeal. The Appellate Authority dismissed the appeal preferred by the landlords and allowed the appeal preferred by the tenant in part setting aside the order of eviction under Section 11(4)(i). The landlords are aggrieved by the said decision of the Appellate Authority and hence, these revision petitions. R.C.Rev.Nos.387 & 391 of 2017 -: 6 :- 2. The landlords, who are husband and wife, own a three storeyed building consisting of several shop rooms. The tenant was occupying one of the shop rooms in the first floor of the building bearing number 11/70. One Aboobacker Siddique was occupying four other rooms in the building bearing numbers 11/58, 11/59, 11/69 and 11/76, of which rooms bearing numbers 11/58 and 11/59 are in the ground floor, the room bearing number 11/69 is in the first floor and the room bearing number 11/76 is in the second floor. The room bearing number 11/70 let out to the tenant is the room adjoining the room bearing number 11/69 let out to Aboobacker Siddique. 3. The case of the landlords is that the tenant has sub-let the room which was originally let out to him to Aboobacker Siddique and that Aboobacker Siddique is running a furniture business therein making use of the adjoining room let out to him in the same floor and also in the other three rooms in the ground and second floor, by removing the wall separating the rooms bearing numbers 11/69 and 11/70 and after constructing a staircase connecting all the five rooms. In the counter affidavit filed to the eviction petition, the tenant admitted that he has handed over possession of the room bearing number 11/70 to Aboobacker Siddique and that R.C.Rev.Nos.387 & 391 of 2017 -: 7 :- Aboobacker Siddique is running a furniture business in the said room making use of the adjoining room in the same floor and other rooms in the building. The tenant, however, asserted that he handed over possession of the tenanted premises to Aboobacker Siddique in exchange of the room bearing number 11/76 let out to Aboobacker Siddique with the permission of the power of attorney holder of the landlords and the wall separating the rooms bearing numbers 11/69 and 11/70 has been removed by one Abdul Rahman Haji, the brother of the power of attorney holder of the landlords, so as to enable Aboobacker Siddique to run furniture business in the said rooms, keeping the same as one hall. 4. The Rent Control Court took the view that in the light of the admission made by the tenant that he has handed over possession of the tenanted premises to Aboobacker Siddique, it was for the tenant to establish that the said arrangement was with the consent of the landlords and in the absence of any evidence in that regard, the landlords are entitled to an order of eviction under Section 11(4)(i). As far as the claim of the landlords under Section 11(4)(ii), the Rent Control Court took the view that in the absence of any evidence as to who removed the wall separating the rooms R.C.Rev.Nos.387 & 391 of 2017 -: 8 :- bearing numbers 11/69 and 11/70 and constructed the staircase, the landlords are not entitled to an order under that provision. It is on that basis that the Rent Control Court allowed the eviction petition under Section 11(4)(i) alone. 5. The Appellate Authority, however, reversed the decision of the Rent Control Court as regards the claim under Section 11(4)(i) mainly for two reasons. The first reason stated is that the landlords should have arrayed the alleged sub-tenant also as a party to the proceedings. The second reason stated is that in the light of the assertion made by the tenant in his evidence that he handed over possession of the tenanted premises to Aboobacker Siddique with the consent of the power of attorney holder of the landlords, the landlords should have established that their power of attorney holder has not given consent to the tenant for the arrangement pleaded by the tenant by examining him. As regards the claim under Section 11(4)(ii), the Appellate Authority concurred with the view taken by the Rent Control Court. 6. Heard the learned counsel for the landlords as also the learned counsel for the tenant. 7. The learned counsel for the landlords persuasively contended that the admission made by the tenant R.C.Rev.Nos.387 & 391 of 2017 -: 9 :- in the counter affidavit filed to the eviction petition alone is sufficient to justify an order under Section 11(4)(i), and the view taken by the Appellate Authority that it was for the landlords to establish that the arrangement pleaded by the tenant is without their consent, is perverse. It was also asserted by the learned counsel, placing reliance on Section 21 of the Act that it is not necessary in a case of this nature to implead the sub-tenant in the eviction petition. As regards the claim under Section 11(4)(ii), the argument advanced by the learned counsel was that the alteration and addition made to the structure cannot be said to be one which will not destroy or reduce the value or utility of the building materially and permanently. According to the learned counsel, insofar as the tenant admits that Aboobacker Siddique is running a furniture business in the premises leased out to the tenant after removing the wall separating the premises from the room which was being occupied by him and after constructing a staircase connecting all the rooms in his possession, in the absence of any evidence to show that the surrender of vacant possession of the tenanted premises to Aboobacker Siddique was with the consent of the landlords, the authorities below ought to have held that the tenant is liable to be evicted under R.C.Rev.Nos.387 & 391 of 2017 -: 10 :- Section 11(4)(ii) as well. 8. Per contra, the learned counsel for the tenant contended that it is not possible to carry out the alteration and addition in the nature of one which has been made to the structure of the building without the consent of the landlords, especially when there is nothing on record to indicate that either the landlords or their power of attorney holder objected to such alteration and addition in any manner whatsoever. According to the learned counsel, the authorities below, in the circumstances, ought to have held that the alteration and addition to the structure of the building is not one made by the tenant without the consent of the landlords. Insofar as Aboobacker Siddique is admittedly running a furniture business in the rooms including the tenanted premises making use of the alteration and addition made to the structure of the building, the authorities below ought to have held that he exchanged the room bearing number 11/70 with the room bearing number 11/76, with the consent of the landlords. In order to reinforce the said stand, the learned counsel asserted that there is nothing on record to indicate that the room bearing number 11/76 is not in the possession of the tenant. The essence of the submissions made by the learned counsel R.C.Rev.Nos.387 & 391 of 2017 -: 11 :- therefore was that the claims of the landlords under Sections 11(4)(i) and 11(4)(ii) being inseparable, insofar as the authorities below concurrently found that the landlords are not entitled to an order of eviction under Section 11(4)(ii), the Appellate Authority cannot be blamed for having reversed the order under Section 11(4)(i). 9. We have examined the contentions raised by the learned counsel for the parties on either side. 10. The point which arises for consideration is whether the concurrent decisions of eviction under Section 11(4)(ii) and the divergent decisions of eviction under Section 11(4)(i) suffer from any illegality, irregularity or impropriety. 11. Before proceeding to deal with the point, it is necessary to remind ourselves the scope of jurisdiction under Section 20 of the Act. Section 20 reads thus: **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. R.C.Rev.Nos.387 & 391 of 2017 -: 12 :- (2) The costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion. ## In **Rukmini Amma Saradamma v. Kallyani Sulochana** , (1993) 1 SCC 499, the Apex Court has held, placing reliance on the word “propriety” used in the Section, that the High Court exercising power under Section 20 of the Act cannot reappreciate the evidence and come to a different conclusion on a question of fact and that the revisional court can come to a different conclusion only by confining itself to legality, regularity and propriety of the order impugned before it. The view taken by the Apex Court in **Rukmini Amma Saradamma** has been approved by a Bench consisting of five Judges of the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78. Paragraph 43 of the said judgment reads thus: “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the R.C.Rev.Nos.387 & 391 of 2017 -: 13 :- material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” As evident from the extracted passage, the High Court is empowered to satisfy itself as to the correctness or legality or propriety of any decision or order of the authorities under the Act. Similarly, a finding of fact recorded by the authorities under the Act, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, is open to correction in exercise of the R.C.Rev.Nos.387 & 391 of 2017 -: 14 :- revisional jurisdiction as it is not treated as a finding according to law. Having thus understood the scope of the jurisdiction under Section 20 of the Act, let us now consider the point. 12. As noted, there is no dispute between the parties to the fact that the tenanted premises is presently occupied by Aboobacker Siddique and that he is running a business therein. The specific case of the tenant is that he has exchanged the tenanted premises with the room bearing number 11/76 in the second floor held by Aboobacker Siddique. The tenant admits that he is not empowered and authorised to transfer the right under the lease or sub-let the premises without the consent of the landlords. He asserts that the transfer of right under the lease was made with the consent of the power of attorney holder of the landlords. There is no dispute to the fact that one Abbas Haji is the power of attorney holder of the landlords. The case set out by the tenant in the counter affidavit is that the transfer of the right under the lease was made with the permission and consent of Abdul Rahman Haji as also the power of attorney holder of the landlords. The relevant portion of the counter affidavit filed by the tenant reads thus: R.C.Rev.Nos.387 & 391 of 2017 ## -: 15 :- “Aboobacker Siddique wanted to conduct a business in furniture only if he got possession of the rooms in the ground floors as well as the first floor. Accordingly as per the permission and consent of one Abdulrahiman Haji (also known as Anduman Haji) and his brother Abbas Haji (G.P.A. Holder of petitioners), the respondent has changed his room to K.M.C. II-76 from KMC II070 but there was no change in the terms and conditions of original lease agreement.” In cross-examination, the tenant admitted that he has not obtained consent of the power of attorney holder of the landlords for the arrangement, as the latter was laid up then and that he transferred the right under the lease with the permission of Abdul Rahman Haji instead. The relevant portion of the deposition of the tenant as RW1 reads thus: “I say that Abdul Rahman Haji permitted to put Aboobacker Siddique in the petition schedule room. During that period, the P.A. holder Abbas Haji was laid up. I say that Abbas Haji was not managing the building on that time and on the other hand, Abdul Rahman Haji was managing the affair of the petition schedule building.” In other words, the tenant himself admitted that he has not obtained the consent of the landlords or their power of attorney holder before transferring the right under the lease to Aboobacker Siddique. In the absence of any material to indicate as to the authority of Abdul Rahman Haji to give consent to the tenant to transfer the right under the lease to Aboobacker Siddique, according to us, the authorities below R.C.Rev.Nos.387 & 391 of 2017 -: 16 :- ought to have held that transfer of right under the lease claimed to have been made by the tenant in favour of Aboobacker Siddique, is without the consent of the landlords. When the tenant himself admits that he has not obtained consent from the landlords or their power of attorney holder for transferring the right under the lease to Aboobacker Siddique, we fail to understand as to how the landlords would be obliged under law to prove that the transfer of right under the lease claimed to have been made by the tenant was without the consent of their power of attorney holder. The view taken by the Appellate Authority in this regard is erroneous. As noted, the plea of the landlords in the eviction petition is that the tenant has sub-let the building to Aboobacker Siddique. In cross-examination, even though the tenant asserted that he has transferred the right under the lease in respect of room bearing number 11/70 to Aboobacker Siddique, he admitted that he is paying rent in respect of the said room. The said admission reads thus: “Now also I am paying rent in respect of room bearing number 2/70 (petition schedule building).” The admission on the part of the tenant in the counter affidavit that he has transferred the right under the lease to R.C.Rev.Nos.387 & 391 of 2017 -: 17 :- Aboobacker Siddique and the admission made by the tenant in the course of his evidence that he is still paying rent in respect of the tenanted premises alone are sufficient, according to us, to make out a case of sub-letting in terms of the provisions of the Act. As noted, another reason stated by the Appellate Authority for refusing an order of eviction under Section 11(4) (i) is that Aboobacker Siddique was not made a party to the proceedings. Section 21 of the Act reads thus: “ **21.Order under the Act to be binding on sub-tenants** .- Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-tenancy to the landlord.” As evident from the extracted provision, it is only in cases where sub-letting is allowed under the original agreement of tenancy, it is obligatory for the landlords to array the subtenant also as a party to the proceedings, that too, only if he has given notice of sub-tenancy to the landlords. In the instant case, the tenant has no case that sub-letting is allowed under the original agreement of tenancy. Needless to say, the view taken by the Appellate Authority in this regard is illegal. In the R.C.Rev.Nos.387 & 391 of 2017 -: 18 :- light of the aforesaid discussions, we are of the considered view that the decision of the Appellate Authority in reversing the order of eviction granted by the Rent Control Court under Section 11(4)(i) is illegal, irregular and improper. 13. Now let us deal with the claim of the landlords for eviction under Section 11(4)(ii) of the Act. As rightly pointed out by the learned counsel for the landlords, the alteration and addition made to the structure cannot be said to be one which will not destroy or reduce the value or utility of the building materially and permanently. The learned counsel for the tenant did not dispute the said fact. The contention, on the other hand, was that the wall separating the rooms bearing numbers 11/69 and 11/70 has been removed by the power of attorney holder of the landlords and his brother so as to enable Aboobacker Siddique to conduct a furniture business in the said rooms. As regards the construction of the staircase, the stand taken by the tenant is that it has nothing to do with the room occupied by him. The tenant has no case that the staircase was in existence at the time of commencement of the tenancy in respect of the room bearing number 11/70. Insofar as it is found that possession of the tenanted premises was handed over by the tenant to Aboobacker Siddique R.C.Rev.Nos.387 & 391 of 2017 -: 19 :- without the consent of the landlords or their power of attorney holder, the case put forward by the tenant that the wall separating the shop rooms bearing numbers 11/69 and 11/70 has been removed by the power of attorney holder of the landlords, cannot be accepted, especially in the absence of any evidence to that effect. The authorities below took the view that in the absence of any evidence as to who made the alteration and addition, an order under Section 11(4)(ii) cannot be passed. The question is whether the said approach of the authorities could be accepted as right. Insofar as it is found that the tenant has sub-let the room bearing number 11/70 to Aboobacker Siddique and that the sub-tenant Aboobacker Siddique is using the tenanted premises with the alteration and addition made to the structure of the building, we are of the view that the landlords have established the ground under Section 11(4)(ii) of the Act as well and the findings to the contrary rendered by the authorities below are illegal, irregular and improper. In the result, the revision petitions are allowed, the impugned decisions of the authorities below are set aside to the extent indicated above and the eviction petition is allowed ordering eviction under Sections 11(4)(i) and 11(4)(ii) of the R.C.Rev.Nos.387 & 391 of 2017 -: 20 :- Act. The tenant shall surrender vacant possession of the subject premises within one month. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 01.12.2022