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 17TH DAY OF MAY 2022/27TH VAISAKHA, 1944
R.C.REV.NO.314 OF 2019
AGAINST THE JUDGMENT DATED 31.05.2019 IN R.C.A.NO.25 OF
2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 05.01.2017
IN R.C.P.NO.109 OF 2015 OF THE RENT CONTROL COURT
(MUNSIFF), VADAKARA
REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN
RCP/TENANT:
PARAPPURATH HAMSA, AGED 61 YEARS, S/O MAMMU,
KUNIYIL HOUSE, NEAR KAKKATTY PALLI, PUTHUPPANAM
AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673 105.
BY ADVS.B.KRISHNAN
SRI.R.PARTHASARATHY
RESPONDENTS/RESPONDENTS IN RCA/PETITIONERS IN
RCP/LANDLORDS:
1 SUDHA CHANDRAN,AGED 59 YEARS
W/O LATE CHANDRAN, THAYYULLATHIL HOUSE,
PUTHUPPANAM POST, VATAKARA, KOZHIKODE-673 105.
2 NITHIN CHANDRAN, AGED 36 YEARS, S/O LATE
CHANDRAN, THAYYULLATHIL HOUSE, PUTHUPPANAM POST,
VATAKARA, KOZHIKODE-673 105.
3 NIKESH CHANDRAN, AGED 31 YEARS
S/O LATE CHANDRAN, THAYYULLATHIL HOUSE,
PUTHUPPANAM POST, VATAKARA, KOZHIKODE-673 105.
R BY ADV SRI.T.G.RAJENDRAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON 22.02.2022, THE COURT ON 17.05.2022 DELIVERED THE
FOLLOWING:
-:2:-
R.C.R.No.314 of 2019
ORDER
Anil K. Narendran, J.
The petitioner is the respondent-tenant in R.C.P.No.109 of 2015 on the file of the Rent Control Court (Munsiff), Vatakara, a petition filed by the respondents herein-landlords under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room bearing No.20/487 of Vatakara Municipality. The bona fide need projected in the Rent Control Petition is that of the 2nd respondent herein, for conducting business in ayurvedic medicines in the petition schedule shop room, which was originally leased out to one E.M.Ibrahim, by the predecessor-in- interest of the landlords. The said Ibrahim died on 23.04.2013 and thereafter, the petitioner herein is in occupation of the said room, as his legal heir. In the Rent Control Petition, it is alleged that the tenant has kept rent of the petition schedule shop room, at the rate of Rs.1,000/- per month, in arrears since January, 2014.
2. On receiving notice, the tenant entered appearance before the Rent Control Court and filed counter contending that the landlords have no right to file the Rent Control Petition. The -:3:- R.C.R.No.314 of 2019 bona fide need projected in the Rent Control Petition is false. There are other vacant rooms in the locality for the 2 nd respondent herein to start business in ayurvedic medicines. E.M.Ibrahim was the original tenant of the shop room since 1945, which was under the ownership of Thayyullathil Narayanan, for a monthly rent of Rs.10/-. In the year 1961, he surrendered the shop room temporarily, for enabling original landlord to reconstruct the building. After the reconstruction, he was permitted to occupy the said shop room on a monthly rent of Rs.250/-. In 1976, the fair rent of the shop room was fixed as Rs.225/- and the said order was confirmed by this Court. Bharathan, who is one of the legal heirs of Thayyullathil Narayanan, is receiving rent from the tenant, through his power of attorney holder Sandhya Rathnakaran. The respondents herein have not informed the tenant, the transfer of right in their favour. The 2nd respondent is the owner of Asoka Medicals and he derives income from that business, in addition to the rental income derived from the tenanted buildings. There are vacant rooms in the building, where the petition schedule shop room is situated. The 2nd respondent can use one such room for his business. The tenant is conducting a footwear shop in the -:4:- R.C.R.No.314 of 2019 petition schedule shop room. He and his family members are depending on the income derived from the said business for their livelihood. There is no other vacant room in the locality for the tenant to shift his business conducted in the petition schedule shop room.
3. Before the Rent Control Court, the 2 nd respondent herein was examined as PW1 and Exts.A1 to A4 were marked on the side of the landlords. The tenant was examined as RW1 and Exts.B1 to B10(a) were marked on his side. After considering the pleadings and materials on record, the Rent Control Court arrived at a conclusion that the respondents herein are the co- owners of the petition schedule shop room, by accepting their case that when the assets of late Thayyullathil Narayanan were partitioned, the said shop room is set apart to their share. The Rent Control Court found that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide and that, the provisions under the first proviso to Section 11(3) of the Act has no application to the facts of the case and that, the tenant is not entitled to protection under the second proviso to Section 11(3) of the Act. Therefore, by the order dated 05.01.2017, the Rent Control -:5:- R.C.R.No.314 of 2019 Court allowed R.C.P.No.109 of 2015, under Section 11(3) of the Act, and the tenant was directed to put the landlords in vacant possession of the petition schedule shop room, within three months, failing which the landlords can get the order executed through court.
4. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.25 of 2017 before the Rent Control Appellate Authority (Additional District Judge), Vatakara, under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 31.05.2019 of the Appellate Authority. The Appellate Authority noticed that the tenant has not denied the title of the respondents herein. His only grievance was that the acquisition of the building by the respondents herein was not informed to him. Before the Appellate Authority, the appellant-tenant conceded that he is ready to pay rent to the respondents-landlords. The Appellate Authority noticed that before the Rent Control Court as well, the title of the landlords was not denied. Therefore, the Appellate Authority proceeded with the appeal on the premise that the landlord-tenant relationship is admitted. After analysing the pleadings and evidence on record, the Appellate Authority found -:6:- R.C.R.No.314 of 2019 that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide and that, the tenant has not succeeded in proving that the first proviso to Section 11(3) of the Act has application to the facts of the case and that, the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The Appellate Authority by the judgment dated 31.05.2019 dismissed R.C.A.No.25 of 2017, thereby confirming the order of eviction granted by the Rent Control Court in R.C.P.No.109 of 2015.
5. Challenging the order dated 05.01.2017 of the Rent Control Court in R.C.P.No.109 of 2015 and the judgment dated 31.05.2019 of the Rent Control Appellate Authority in R.C.A.No.25 of 2017, the petitioner-tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act.
6. On 24.07.2019, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondents. In I.A.No.1 of 2019, this Court granted an interim order staying all further proceedings pursuant to the judgment dated 31.05.2019 of the Rent Control Appellate Authority in R.C.A.No.25 of 2017 for a period of three -:7:- R.C.R.No.314 of 2019 months. The said interim order, which was extended from time to time, is still in force.
7. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords.
8. The learned counsel for the petitioner-tenant contended that the contentions raised by the tenant disputing the title of the landlords was not properly appreciated by the Rent Control Court as well as the Rent Control Appellate Authority. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is only a ruse to evict the tenant from the petition schedule shop room. Therefore, the finding to the contra by the authorities below is legally unsustainable. The contentions raised by the tenant as to the applicability of the first proviso to Section 11(3) of the Act and also to the entitlement of the tenant for the protection under the second proviso to Section 11(3) of the Act were not properly appreciated by the authorities below.
9. Per contra, the learned counsel for the respondents- landlords contended that, as rightly noticed by the Appellate Authority, the tenant has not denied title of the respondents and his only grievance was that the acquisition of the building by the -:8:- R.C.R.No.314 of 2019 respondents was not informed to him. Before the Appellate Authority, the tenant conceded that he is ready to pay rent to the respondents. Insofar as the claim for eviction under Section 11(3) of the Act is concerned, on a proper appreciation of the pleadings and evidence on record, the Rent Control Court as well as the Rent Control Appellate Authority concurrently found that the need projected in the Rent Control Petition is bona fide and that, the first proviso to Section 11(3) of the Act is not attracted and that, the tenant is not entitled for the protection under the second proviso to Section 11(3) of the Act. The concurrent findings by the authorities below warrant no interference, in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.
10. During the course of arguments, relying on the law laid down by the Apex Court in Subash Chandra v. Mohammad Sharif [(1990) 1 SCC 252], the learned counsel for the petitioner-tenant argued that, though the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff, where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, -:9:- R.C.R.No.314 of 2019 donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act, 1872. The learned counsel has also placed reliance on the judgment of this Court in Thankachan v. Gireesh Kumar [2022 (1) KHC 521] in order to contend that, whenever there is denial of title of the landlord, the Rent Control Court is obliged to decide that question and depending upon the finding thereon, the court has to proceed further, either directing the petitioner to approach the civil court or proceed to consider the grounds for eviction on merits.
11. As noticed by the Appellate Authority, the tenant has not denied the title of the respondents herein before the Rent Control Court and his only grievance was that the acquisition of the building by them was not informed to him. Before the Rent Control Court, the tenant did not deny creation of the original tenancy in favour of his father E.M.Ibrahim by Thayyullathil Narayanan, the predecessor-in-interest of the respondents herein. The tenant contended that he does not know anything about the transfer in favour of the respondents herein and that, -:10:- R.C.R.No.314 of 2019 he has been paying rent to Sandhya Rathnakaran, who is the power of attorney holder of one of the legal heirs of deceased Thayyulltahil Narayanan. After considering the pleadings and evidence on record and taking note of the stand taken by the tenant, the Rent Control Court accepted the case of the landlords that, when the assets of Thayyullathil Narayanan were partitioned, the petition schedule shop room was set apart to their share. The Appellate Authority, in paragraph 10 of the impugned judgment, noticed that the tenant has conceded that he is ready to pay rent to the respondents herein. It was in such circumstances that the Appellate Authority proceeded with the matter on the premise that the landlord-tenant relationship is admitted. The reasoning of the authorities below, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.
12. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in -:11:- R.C.R.No.314 of 2019 accordance with the provisions of the Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second 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 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.
13. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be -:12:- R.C.R.No.314 of 2019 an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in Deena Nath v. Pooran Lal [(2001) 5 SCC 705], bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.
14. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra.
-:13:-R.C.R.No.314 of 2019
15. In the instant case, the need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is that of the 2 nd respondent herein to start a business of ayurvedic medicines in the petition schedule shop room. The 2nd respondent herein was examined as PW1. During cross examination, nothing could be brought to discredit the version of PW1 on the need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act. The tenant pointed out that, after the need has arisen, PW1 has transferred one shop room, which shows lack of bona fides in the plea for eviction raised in the Rent Control Petition. After analysing the evidence of PW1, the Rent Control Court as well as the Appellate Authority found that PW1 had to sell the said shop room for discharging his liability and that, the sale was also to the very same person, who was occupying the said shop room, and there is no evidence to show that the room had ever come to the possession of the landlords. The petition schedule shop room is on the ground floor of a three storied building, which is facing the main road near old bus stand, Vatakara. Respondents 2 and 3 herein are conducting business in medicines in the adjacent room, under the name and style -:14:- R.C.R.No.314 of 2019 M/s.Narayanan's Asok Medicals. Though the tenant contended that it is an exclusive business of the 2 nd respondent herein, the licence particulars produced by the tenant showed that the licence is in the name of the 2nd and 3rd respondents herein. The 2nd respondent is a young entrepreneur aged about 34 years, when the Rent Control Petition was filed. His experience in conducting business in medicines was not in serious dispute. After analysing the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority rightly concluded that the intention of PW1 to start a business of his own, dealing with ayurvedic medicines, in the petition schedule shop room is bona fide and it is not a mere desire or fanciful wish. The reasoning of the authorities below, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.
16. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is -:15:- R.C.R.No.314 of 2019 satisfied that for special reasons, in any particular case it will be just and proper to do so.
17. In M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355] the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141], wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non- disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two -:16:- R.C.R.No.314 of 2019 premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question.
18. In Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21] the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of the vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in -:17:- R.C.R.No.314 of 2019 possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises.
19. In Vasantha Mallan, relying on the law laid down by the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could -:18:- R.C.R.No.314 of 2019 at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non-occupation of the premises for his alleged needs.
20. In the instant case, in the Rent Control Petition the landlords have mentioned that one room in the first floor and another room in the second floor of the building are in their possession and both rooms are being used in connection with the medicine business run by respondents 2 and 3 herein. One room is used as office room and the other room is used as lunch room of the employees. Those rooms are in the first and second floor of the building. One can reach those rooms only through the narrow and curved staircase, which are not having any direct road access. On the other hand, the petition schedule shop room is in the ground floor, which is facing the main road. The special reasons pleaded in the Rent Control Petition and proved by the oral testimony of PW1 were not seriously disputed by the tenant. After analysing the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority concurrently found that the first proviso to Section 11(3) of the Act is not attracted in the facts and circumstance of the case. -:19:- R.C.R.No.314 of 2019 The said finding of the authorities below, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.
21. As per the second proviso to Section 11(3) of the Act, 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 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.
22. In Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465] a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: Narayanan Nair v. Pachumma [1980 KLT 430], Prasannan v. Haris [2005 (2) KLT 365], -:20:- R.C.R.No.314 of 2019 Vineethan v. Fathima and others [2016 (1) KHC 631]. In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted -:21:- R.C.R.No.314 of 2019 to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act.
23. Insofar as the second proviso to Section 11(3) of the Act is concerned, other than the oral testimony of the tenant as RW1, no reliable materials could be brought on record to show that the tenant is mainly depending on the income derived from the footwear business conducted in the petition schedule shop room for his livelihood. The turnover or the volume of footwear business or the income generated from that business are not disclosed by the tenant. The oral testimony of RW1 is also silent on the above aspects. Nothing could be brought out by the tenant to show that there are no vacant rooms in the locality for shifting the footwear business conducted in the petition schedule shop room. The tenant has also not chosen to take out a commission to substantiate the fact that no other vacant rooms are available in the locality for shifting the footwear -:22:- R.C.R.No.314 of 2019 business. In the absence of any reliable materials, the authorities below concurrently found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The said finding of the authorities below, after taking note of the pleadings and evidence on record, cannot be said to be either perverse or patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.
24. Before the Appellate Authority, the tenant filed I.A.No.13 of 2019 seeking an order to accept on record two additional documents. One of that documents is an information given by the Public Information Officer of Vadakara Municipality, wherein it is stated that the licence in respect of building bearing No.20/427 stands in the name of respondents 2 and 3 herein. The other document is an order of eviction passed by the Rent Control Court in R.C.P.No.110 of 2016, whereby the landlords obtained an order of eviction in respect of the two shop rooms bearing Door Nos.20/426 and 20/427 of Vadakara Municipality. The Appellate Authority dismissed I.A.No.13 of 2019 on a finding that those materials are not relevant for deciding the issue involved in that appeal.
-:23:-R.C.R.No.314 of 2019
25. The learned counsel for the petitioner-tenant argued that the Appellate Authority went wrong in not taking note of the subsequent event, namely, the order of eviction in R.C.P.No.110 of 2016 obtained by the landlords, in respect of two other shop rooms.
26. As already noticed, the bona fide need projected in R.C.P.No.109 of 2015 for seeking an order of eviction under Section 11(3) of the Act is that of the 2 nd respondent herein to start business in ayurvedic medicines in the petition schedule shop room, which is on the ground floor of a three storied building. On the other hand, R.C.P.No.110 of 2016 is one filed by the landlords seeking an order of eviction of other two shop rooms, i.e., shop rooms bearing door Nos.20/426 and 20/427 of Vatakara Municipality, under Section 11(3) of the Act for the bona fide need of Nikesh Chandran, the 3rd respondent herein, for starting a business of surgical equipment and veterinary medicines, utililsing adjacent room as well. The fact that the landlords have filed another Rent Control Petition in the year 2016 and obtained an order of eviction of other two shop rooms for starting a business of surgical equipment and veterinary medicines by the 3rd respondent herein is not a subsequent -:24:- R.C.R.No.314 of 2019 event, which has any bearing on the issue involved in R.C.A.No.25 of 2017 and as such, the Appellate Authority cannot be found fault with in rejecting I.A.No.13 of 2019.
27. 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 in its discretion.
28. 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. -:25:- R.C.R.No.314 of 2019 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.
29. 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 -:26:- R.C.R.No.314 of 2019 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.
30. 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 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 -:27:- R.C.R.No.314 of 2019 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.
31. 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 -:28:- R.C.R.No.314 of 2019 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.
32. 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 anyway. 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.
33. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently -:29:- R.C.R.No.314 of 2019 passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act.
In the result, the Rent Control Revision fails and the same is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE AV