Vijayalakshmi v. Gopakumar Unni R. and N. Rajagopal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944** ## **R.C.REV.NO. 137 OF 2022** **AGAINST THE JUDGMENT DATED 13.12.2021 IN R.C.A.NO.1 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICDT JUDGE-IV), THIRUVANANTHAPURAM AND THE ORDER DATED 05.09.2019 IN R.C.P.NO.18 OF 2017 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-IV), THIRUVANANTHAPURAM** ## **REVISION PETITIONER:** **VIJAYALAKSHMI, AGED 46 YEARS, W/O RAJAGOPAL, T.C NO 29/945, UTHRATHIVILAKOM VEEDU, KAITHAMUKKU, THIRUVANANTHAPURAM, PIN – 695054.** **BY ADVS.** **K.SUNITHA VINOD NARAYAN S. VINOD KALYANI.S.VINOD AISWARYA SOMAN MOHAMMED RASHID K.H.** ## **RESPONDENTS:** - **1 GOPAKUMAR UNNI R.,** **AGED 60 YEARS,S/O RAMANUNNI,** **TC 29/786(4) PALKULANGARA, THIRUVANANTHAPURAM, PIN – 695024.** **2 N.RAJAGOPAL, AGED 50 YEARS TC25/3470,UPPALAM ROAD,URA-74/8, VANCHIYOOR, THIRUVANTHAPURAN, PIN – 695035.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.137 of 2022 ## **O R D E R** Ajithkumar, J. The 1[st] respondent-landlord filed R.C.P.No.18 of 2017 before the Rent Control Court (Additional Munsiff-IV), Thiruvananthapuram, seeking eviction of the 2[nd] respondent and the petitioner, who are the husband and wife, from the petition schedule building under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. That petition was allowed as per order dated 05.09.2019. The petitioner has filed an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Court-IV), Thiruvananthapuram. The appeal was dismissed as per judgment dated 13.12.2021. Aggrieved thereof, this revision under Section 20 of the Act has been filed. 2. When this matter came up for admission today, we heard the learned counsel appearing for the petitioner in detail. 3. Eviction was sought on the ground that the 3 R.C.Rev.No.137 of 2022 petitioner and the 2[nd] respondent, who are the tenants, defaulted payment of rent at the rate of Rs.5,000/- per month from January, 2016 onwards and that the building was required for the residence of the daughter of the 1[st] respondent. The petitioner alone contested the R.C.P. The 2[nd] respondent remained exparte. The petitioner resisted the plea for eviction raising various contentions. She contended that it was the 2[nd] respondent, her husband, who entered into the tenancy arrangement with the 1[st] respondent. She has been residing in the petition schedule building along with the 2[nd] respondent, but their relationship had broken down, and therefore, she along with her child continued in occupation of the premises. The 2[nd] respondent deserted her and left. Thereafter, the 1[st] respondent in collusion with the 2[nd] respondent has filed the petition for eviction. She denied liability to pay any rent. She also contended that since she has been residing in the building as the wife of the 2[nd] respondent, it is her shared household, she is not liable to be evicted therefrom, as long as she is not provided with an 4 R.C.Rev.No.137 of 2022 alternative accommodation. 4. The Rent Control Court recorded oral evidence of PW1 and received Exts.A1 and A2. After hearing both sides, eviction under Sections 11(2)(b) and 11(3) of the Act was ordered directing the petitioner and the 2[nd] respondent to put the 1[st] respondent in vacant possession of the petition schedule building within one month from the date of that order. 5. In the appeal preferred by the petitioner, the Appellate Authority has re-appreciated the evidence and held that the petitioner was not a tenant but only a member of the family of the tenant and there was no reason to interfere with the findings of the Rent Control Court and the order of eviction. The appeal was accordingly dismissed. 6. The learned counsel appearing for the petitioner would submit that the order of eviction is bad in law inasmuch as the concurrent finding is to the effect that the petitioner is not the tenant. There is no landlord-tenant relationship between the petitioner and the 1[st] respondent, and therefore, 5 R.C.Rev.No.137 of 2022 the courts below should not have ordered eviction of the petitioner. The courts below lack jurisdiction for ordering eviction of the petitioner under the provisions of the Act. Such a case set forth by the petitioner was not accepted by the courts below. The courts below concurrently held that the 2[nd] respondent, who is the husband of the petitioner, is the tenant and as a member of his family alone the petitioner has been residing in the building. As the wife she may be entitled to have the right to continue in the shared house, but that is not an independent right that can be claimed against the landlord. It is seen that the definite case of the petitioner in her counter statement is that her husband was the tenant and as his wife she has been residing in the building. In the light of that admission, the petition for eviction filed by the 1[st] respondent, who undisputedly is the landlord, is certainly maintainable. The Apex Court in **Satish Chander Ahuja v. Sneha Ahuja [2021 (1) SCC 414]** held,- "In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/allotment/license is in the name of husband, 6 R.C.Rev.No.137 of 2022 father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/ licensee could have taken in the proceedings. The embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the "respondent", i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005." 7. The petitioner although pleaded that the eviction petition was filed by the 1[st] respondent in collusion with the 2[nd] respondent, no evidence was seen adduced by her to prove that allegation. Hence, the contention that the petitioner is not liable to be evicted under the provisions of the Kerala Buildings (Lease and Rent Control) Act is untenable. 8. Eviction was sought on the ground of bona fide need. The need urged is that the daughter of the 1[st] respondent-landlord is dependent on him and the daughter 7 R.C.Rev.No.137 of 2022 wants to put up residence in the petition schedule building. His daughter is employed with the Higher Education Department. Her marriage is fixed and after the marriage, she along with her husband wants to put up their residence in the petition schedule building. The version of PW1, the 1[st] respondent, in that regard is not seen seriously challenged. In the light of that evidence, the Rent Control Court as well as the Appellate Authority held that the need urged by the 1[st] respondent was bona fide. In the absence of any plea that the 1[st] despondent has any other building suitable for the said purpose, the first proviso to Section 11(3) of the Act has no application. The tenanted premises is a residential one, and therefore the second proviso to Section 11(3) has also no application. The legality, regularity and propriety of the order of eviction concurrently rendered by the courts below have to be considered in the light of the said facts and circumstances. 9. 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 8 R.C.Rev.No.137 of 2022 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 re-appreciated 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 re-appreciating 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. 10. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench 9 R.C.Rev.No.137 of 2022 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. 11. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could 10 R.C.Rev.No.137 of 2022 not be said to be perverse in any way, the High Court could - not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 12. In the light of the proposition of law laid down by the Apex Court and this Court in the aforesaid decisions, we find no reason to interfere with the concurrent finding of the courts below, based on which eviction of the petitioner and the 2[nd] respondent from the petition schedule building has been ordered. Hence, we find no merits in the Revision Petition and it is dismissed. 13. The learned counsel for the petitioner has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding out another building for making necessary arrangements for shifting the residence. 14. Having considered all the aspects, we deem it appropriate to grant three months’ time to surrender vacant possession of the petition schedule building, subject to the following conditions: 11 R.C.Rev.No.137 of 2022 (i) The 2[nd] respondent in the Rent Control Petition shall file an affidavit 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, expressing an unconditional undertaking that she will surrender vacant possession of the petition schedule building to the petitioner-landlord within three months from the date of this order and that, she shall not induct third parties into possession of the petition schedule building; - (ii) The 2[nd] respondent 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 damages for use and occupation at the rate of the rent for every succeeding months, without any default; 12 ## R.C.Rev.No.137 of 2022 - (iii) Needless to say, in the event of the 2[nd] respondent 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 petition schedule building will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr