North Wayanad Co-Operative ... vs T.T.P.Shameena
2022 Latest Caselaw 9217 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                              &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                   R.C.REV.NO. 3 OF 2022
AGAINST THE JUDGMENT DATED 03.07.2020 IN R.C.A.NO.7 OF 2015
 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),
 KALLPETTA AND THE ORDER DATED 18.12.2014 IN R.C.P.NO.7 OF
   2013 OF THE RENT CONTROL COURT (MUNSIFF), MANANTHAVADY
REVISION PETITIONER:

         NORTH WAYANAD CO-OPERATIVE RUBBER AND
         AGRICULTURAL MARKETING SOCIETY LTD. NO. C-348,
         MANANTHAVADY, REP. BY ITS SECRETARY,
         GIRIJA A, AGED 56 YEARS, W/O. T.V. PREME
         CHANDRAN, BLOCK OFFICE ROAD, MANANTHAVADY
         VILLAGE, MANANTHAVADY POST, WAYANAD DISTRICT,
         PIN - 670 645.
         BY ADVS.
         JACOB SEBASTIAN
         K.V.WINSTON


RESPONDENT:

         T.T.P.SHAMEENA,
         AGED 72 YEARS, W/O. DR.V. KUTTIALI,
         CHUNDAKUNNUMMAL HOUSE,
         9/120, EDAKKAD, CHUNGAM, THAMARASSERI POST,
         KOZHIKDOE DISTRICT, REP. BY POWER OF ATTORNEY
         HOLDER T.T.P. ASHRAF, AGED 71 YEARS, S/O. C.P.
         ABDULLA KEYI, AARZOO, 27/516-C, KUTHIRAVATTAM
         POST, KOZHIKODE DISTRICT 673 016.
                             2
R.C.Rev.No.3 of 2022


           BY ADVS.
           P.A.HARISH
           V.V.SURENDRAN
           C.K.SANTHOSH



      THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 22.07.2022, THE COURT ON 10.08.2022 DELIVERED
THE FOLLOWING:
                                3
R.C.Rev.No.3 of 2022


                          ORDER

Ajithkumar, J.

The respondent-tenant in R.C.P.No.7 of 2015 on the file

of the Rent Control Court (Munsiff), Mananthavady, is the

petitioner. The respondent-landlady filed the R.C.P. seeking

eviction under Sections 11(2)(b), 11(4)(i) and 11(4)(iii) of

the Kerala Buildings (Lease and Rent Control) Act, 1965. The

Rent Control Court as per order dated 18.12.2014 ordered

eviction under Sections 11(4)(i) and 11(4)(iii) of the Act, and

directed the petitioner to surrender vacant possession of the

petition schedule shop room within a period of 30 days from

the date of that order. An appeal was filed under Section

18(1)(b) of the Act. The Rent Control Appellate Authority

(District Judge), Kalpetta, as per judgment dated 03.07.2020

in R.C.A.No.7 of 2015 set aside the order of eviction under

Section 11(4)(i) of the Act, but confirmed the order of

eviction under Section 11(4)(iii) of the Act. The petitioner

challenges the said judgment in this Revision filed under

Section 20 of the Act.

R.C.Rev.No.3 of 2022

2. On 06.01.2022, the Revision was admitted to file.

Execution of the order of eviction was stayed for a period of

one month. The order of stay has been extended from time to

time and is still in force.

3. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

4. The plea for eviction of the respondent under

Section 11(4)(iii) of the Act is on the ground that the

petitioner has in its possession another building of its own on

the Block Panchayat Road near Mysore Road Junction, which

is a multi-storied one. That building is reasonably sufficient for

the purpose of the petitioner. That alone survives for

consideration now. The petitioner refuted the said plea by

contending that it has been using the petition schedule room

for conducting a sale depot and the fact that it has a building

of its own at a different place cannot be a reason for eviction

under Section 11(4)(iii) of the Act. It is contended that under

Section 11(4)(iii), the building in possession of the tenant has

R.C.Rev.No.3 of 2022

to be reasonably sufficient for his requirement but here, the

building in the possession of the petitioner is not a substitute

for the sale depot of the society, that is functioning in the

petition schedule shop room at a different place.

5. The learned counsel appearing for the petitioner

would contend that the petitioner, which is a Co-operative

Society, has several depots; each one has been located at

different places in order to suit the needs of the farmers, who

come to the society as customers. If the depot being

functioned in the petition schedule shop room is closed down,

the farmers, who come to that depot, will be put to difficulty.

It is therefore contended that owning a building by the

petitioner at Mysore Road Junction cannot be a ground for

eviction. Suitability of the said building for the functioning of

the depot now accommodates in the petition schedule shop

room has to be considered taking into account the locational

advantage also. The learned counsel would submit that the

courts below did not consider the said aspects and on holding

that the petitioner has in its possession a multi-storied

R.C.Rev.No.3 of 2022

building, mechanically ordered eviction under the provisions

of Section 11(4)(iii) of the Act.

6. The learned counsel appearing for the respondent, on

the other hand, would contend that RW1 did not state such

aspects before the court and the submission of the learned

counsel for the petitioner is without there having any support of

evidence. It is submitted that in the absence of any evidence that

the depot in the petition schedule shop room is functioning in

order to cater to the needs of the farmers, there cannot be a

finding that the multi-storied building in their possession is

insufficient or suitable for their purpose.

7. PW2 is the Secretary of the Mananthavady Grama

Panchayat. He produced Ext.A4. That evidence proved that

the Society has a multi-storied building of its own. RW1, the

Secretary of the petitioner-Society admitted also that the

Society is in possession of such a building. Once possession of

a building with the tenant is proved, it is his burden to

establish that such building is not suitable or sufficient for his

purpose.

R.C.Rev.No.3 of 2022

8. Section 11(4)(iii) is extracted hereunder for

convenience of reference:

"If the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village."

9. The above provision is applicable in all cases

where: i) The tenants already have in their possession a

building; or ii) subsequently acquire possession of; or iii) puts

up a building; iv) reasonably sufficient for their requirements

in the same town or village. The above provision

contemplates, not only a situation where a tenant

subsequently acquires a building, but also a situation where a

tenant is already in occupation of another building. In the

present case, the tenant already has in its possession a

building. The above is not a fact that is disputed by the

petitioner. The contention is that the building in its occupation

is not sufficient for its purpose.

10. This Court in V.M.Andrews v. Daisy Punnan and

others [2016 2 KHC 37] held,

R.C.Rev.No.3 of 2022

"14. As regards the other ground is concerned, it is conceded by the tenant when examined, that he had constructed a double-story building and part of the business has been shifted to the said building. Though he had contended that subsequently acquired building is not sufficient to cater to the need or to conduct business that is being carried on in the petition schedule building, he had not taken out any commission to prove that the subsequently acquired building is not sufficient for his purpose. Once it is admitted by the tenant that he had come into possession of another building after taking possession of the petition schedule building, the burden is on the tenant to prove that that building is not sufficient for his purpose which has not been established in this case. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the landlords are entitled to get eviction under section 11(4)

(iii) of the Act and the concurrent findings on facts do not call for any interference."

11. In the light of the law laid down in the aforesaid

decision, it is the burden of the petitioner to prove that the

building in the possession of the Society is not suitable or

sufficient to accommodate the depot being functioned in the

petition schedule shop room. Evidence of RWs1 and 2 is

totally insufficient to prove that fact. In the circumstances,

R.C.Rev.No.3 of 2022

the concurrent finding rendered by the courts below is not

liable to be interfered with.

12. 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

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

R.C.Rev.No.3 of 2022

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.

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

R.C.Rev.No.3 of 2022

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

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.

15. Viewed in the light of the proposition of law in the

aforesaid decision, we are of the view there is no reason to

interfere with the concurrent finding rendered by the courts

below resulting in the order of eviction of the petitioner under

Section 11(4)(iii) of the Act. The Revision is accordingly

dismissed.

16. At the time of pronouncement of the order, the

learned counsel for the petitioner has made a request to

afford a period of six months for vacating the premises

pointing out the difficulty in finding out another room and

R.C.Rev.No.3 of 2022

making necessary arrangements for shifting the business. The

learned counsel for the respondent is agreeable to grant a

reasonable time.

17. Having considered all the aspects, we deem it

appropriate to grant six months' time to surrender vacant

possession of the petition schedule shop room, subject to the

following conditions:

(i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that the tenant will surrender vacant possession of the petition schedule shop room to the petitioner-landlady within six months from the date of this order and that, the tenant shall not induct third parties into possession of the petition schedule shop room and further the tenant shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;

(ii) The respondent-tenant 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

R.C.Rev.No.3 of 2022

the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default;

(iii) Needless to say, in the event of the respondent-tenant 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 shop room will stand cancelled automatically and the petitioner-landlady 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