Government Of India vs A.Mammikutty
2021 Latest Caselaw 22310 Ker

         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 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                    RCREV. NO. 143 OF 2020
  AGAINST THE JUDGMENT DATED 30.11.2019 IN R.C.A No.16 OF
        2018 OF THE RENT CONTROL APPELLATE AUTHORITY
              (ADDITIONAL DISTRICT JUDGE),TIRUR
                             AND
 THE ORDER DATED 18.09.2017 IN R.C.P NO.36 OF 2015 OF RENT
                 CONTROL COURT(MUNSIFF),TIRUR
REVISION PETITIONER:

         GOVERNMENT OF INDIA
         REPRESENTED BY SUPERINTENDENT OF POST OFFICE,
         TIRUR DIVISION, TIRUR, PIN-676104.


         BY ADV.
         SRI.M.N.MANMADAN, CGC

RESPONDENTS:

         A.MAMMIKUTTY
         AGED 59 YEARS
         S/O. MUHAMMED HAJI, APM MANZIL, PAYYANGANGADI,
         TIRUR AMSOM, KOTT DESOM, TIRUR TALUK,
         MALAPPURAM DISTRICT, PIN-676101.


         BY ADVS.
         SRI.R.T.PRADEEP
         SMT.M.BINDUDAS
         SRI.K.C.HARISH

     THIS RENT CONTROL REVISION HAVING COME UP            FOR
ADMISSION ON 09.11.2021, THE COURT ON THE SAME            DAY
DELIVERED THE FOLLOWING:
                                    2
R.C.REV. NO. 143 OF 2020



                              ORDER

Ajithkumar, J

The petitioner is the respondent-tenant in Rent Control

Petition No.36 of 2015 before the Rent Control Court, Tirur. The

order of eviction under Section 11(3) of the Kerala Buildings

Lease and Rent Control) Act, 1965 passed by the Rent Control

Court was challenged by the petitioner before the Rent Control

Appellate Authority (Additional District Judge), Tirur by filing

Rent Control Appeal No.16 of 2018. Unsuccessful in the appeal,

the petitioner filed this Rent Control Revision.

2. On 20.01.2021 this Court issued notice to the

respondent and granted an interim order staying the execution

proceedings for 3 months. The order has been extended from

time to time and the order is still in force.

3. The learned Central Government Standing Counsel

appearing for the petitioner and the learned counsel for the

respondent are heard.

R.C.REV. NO. 143 OF 2020

4. A post office is functioning in the petition scheduled

building. The tenancy commenced on 07.02.2000. The

respondent-landlord sought eviction on the ground that his

daughter, who is a dependent of him, wants the petition schedule

building for starting a dental clinic. Respondent's daughter

Smt.Jaseena is claimed to be a qualified dental doctor and no

other building is available with the respondent for the purpose.

5. The petitioner resisted the Rent Control Petition by

filing a counter statement. The contentions were twofold. Firstly,

the need projected is not bona fide. A demand made by the

respondent for increasing rent in 2014 was declined by the

petitioner and the present petition is its offshoot. Secondly, the

daughter of the respondent never would come to start a clinic in

the petition schedule building.

6. The learned Central Government Standing Counsel

relying on Koyilerian Janaki and others v. Rent

Controller(Munsiff), Cannanore and others, [(2000) 9 SCC

R.C.REV. NO. 143 OF 2020

406] and Albert Mendez v. Rema Chandran and others

[2007(3) KLT 23], argued that Smt.Jaseena is not a

dependent of the respondent in the context of Section 11(3) of

the Act and therefore the need urged cannot said genuine or

bona fide.

7. In Koyilerian Janaki (supra) it was held that where

eviction of a tenant is sought by a landlord for occupation of any

member of his family, the landlord is required to plead and

substantiate three ingredients. Firstly, a person for whose need

the premises is required is a member of the landlord's family.

Secondly, such member of the family is dependent on the

landlord and thirdly, there is a bona fide need. In the absence of

any one of the three ingredients, the petition by a landlord under

Section 11(3) would fail.

8. Requirements of Section 11(3) in the above context

has been dilated in Albert Mendez (supra) in the following

words:

R.C.REV. NO. 143 OF 2020

"A family can have a member, who is not a dependent

of the landlord and in which case Section 11(3) cannot

be pressed into service. The requirement of the section

can be satisfied only if it is pleaded and proved that

the concerned member of the family is dependent on

the landlord. The mere reason that the husband is a

member of the family, does not presuppose that the

husband is a dependent of the wife. The fact of

membership in the family does not satisfy the

requirement of Section 11(3). The essential requirement

of Section 11(3), is dependency of the member of the

family.

9. In this case, the respondent categorically pleaded that

his daughter obtained B.D.S degree and got registration under

the Dentists Act, 1948, and in order to start a dental clinic, she

requires the building. Exts.A1 to A3 were produced to

substantiate that fact. There is no reason to discard the said

evidence. The authorities below analysed the evidence relating

R.C.REV. NO. 143 OF 2020

to the qualification of Smt.Jaseena and came to the correct

conclusion that she was a qualified dental surgeon.

10. There is no need for elaboration as to the fact that a

daughter is dependent on her father, no matter, she is married or

not. In the absence of evidence to show that the daughter is in

possession of a suitable building for her purpose, it can only be

said that the daughter is a dependent of the father-landlord for

an accommodation. In that perspective, the evidence in this case

is sufficient to prove that Smt.Jaseena is the dependent of the

respondent for the purpose of Section 11(3) of the Act.

11. Main reason stated to show the need urged is not

bona fide is that the respondent's demand for a hike of rent in

2014 was declined by the petitioner. It is an admitted fact that

the petitioner in 2014, had demanded extension of the lease for

a period of one year. The demand for a hike in rent was in that

context. In the circumstances, the said demand and decline

cannot discredit the need urged by the respondent after a period

R.C.REV. NO. 143 OF 2020

of more than one year. We are of the view that it is not available

for the petitioner to contend that the claim cannot be allowed on

the said ground.

12. The contention raised that there are other buildings in

the possession of the landlord is not supported by any evidence.

This is not a case where the second proviso to Section 11(3) has

any application.

13. We shall now consider how far this Court under its

revisional jurisdiction can interfere with the impugned judgment.

Section 20 of the 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

R.C.REV. NO. 143 OF 2020

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.

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 Act came up

for consideration before the Three-Judge Bench of the Apex

Court. While considering whether the High Court could have re-

appreciated the 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. Even by the presence of the word 'propriety' it

cannot mean that there could be a re-appreciation of evidence.

R.C.REV. NO. 143 OF 2020

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 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 Act, 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

R.C.REV. NO. 143 OF 2020

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.

16. 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 Act does not enable the High Court to act as a first or a

R.C.REV. NO. 143 OF 2020

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.

17. 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.

R.C.REV. NO. 143 OF 2020

18. We are of the view that applying the principle of law

as discussed above, the impugned judgment is not suffering

from any illegality, irregularity or impropriety. Hence, this

revision fails and is dismissed.

19. The learned Central Government Counsel for the

petitioner at this juncture requested to grant a period of one

year for vacating the premises, pointing out the difficulty in view

of the pandemic situation to find out a new room for shifting the

post office being functioned in the petition schedule shop room.

We deem it appropriate to grant nine months' time to the

petitioner-tenant, to surrender vacant possession of the petition

schedule building to the respondent-landlord, on the condition

that the petitioner-tenant shall continue to pay rent for every

succeeding months, without any default. It is made clear that,

in the event of the petitioner-tenant failing to comply with the

above condition, the time limit granted by this order to surrender

vacant possession of the petition schedule shop room will stand

R.C.REV. NO. 143 OF 2020

cancelled automatically and the respondent-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 PV