Karimpanakkal Hamza vs Kollamparambil Shaiju Kurian
2022 Latest Caselaw 11201 Ker

             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 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                     R.C.REV. NO. 211 OF 2020
(AGAINST THE JUDGMENT IN R.C.A. No. 9/2017 DATED 05.03.2020 ON THE
FILE OF THE RENT CONTROL APPELLATE AUTHORITY/ ADDITIONAL DISTRICT
                       JUDGE-III, MANJERI)
REVISION PETITIONER/RESPONDENT/PETITIONER:

           KARIMPANAKKAL HAMZA
           AGED 56 YEARS
           S/O. AHAMMED, KARIMPANAKKAL HOUSE, NILAMBUR (P.O),
           MALAPPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY
           HOLDER ADBULLA
           BY ADVS.K.DILIP
           SMT.SUSAN MATHEW


RESPONDENT/APPELLANT/RESPONDENT:

           KOLLAMPARAMBIL SHAIJU KURIAN
           AGED 47 YEARS
           S/O. KURIAN,PROPRIETOR NOBLE STORE, V.K.ROAD,
           NILAMBUR AMSOM, (P.O) NILAMBUR,
           MALAPPURAM DISTRICT-679 330
           BY ADVS.SHRI.T.K.AJITH KUMAR
           SMT.AISWARYA RAMESAN



     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                         2
R.C.R.No.211 of 2020

                P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                  --------------------------------------------------
                            R.C.R.No.211 of 2020
                    -------------------------------------------
                Dated this the 2nd day of December, 2022


                                  ORDER

C.S.Sudha, J.

This rent control revision filed under Section 20 of the Kerala

Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed

against the judgment dated 05/03/2020 in R.C.A.No.9/2017 on the file of

the Rent Control Appellate Authority (RCAA), Manjeri, against the order

dated 04/01/2017 in R.C.P.No.48/2013 on the file of the Rent Control

Court (RCC), Manjeri. The revision petitioner herein is the respondent in

the appeal and the petitioner-landlord in the R.C.P. The respondent herein

is the appellant in the appeal and the respondent-tenant in the R.C.P. The

parties and documents will be referred to as described in the R.C.P.

2. R.C.P.No.48/2013 was filed by the petitioner-landlord

seeking eviction of the respondent-tenant under Sections 11(2)(b) and

11(3) of the Act. According to the petitioner, as per the rental agreement

dated 23/07/2012, the petition schedule room was let out to the respondent

for a monthly rent of ₹3,000/-. The respondent had given an interest free

R.C.R.No.211 of 2020

security deposit of ₹50,000/- at the time of execution of the rental

agreement. It was further agreed that in case the agreement is renewed, the

rent would be enhanced by 10%. The period of agreement expired on

23/06/2013. However, the respondent has not vacated the room so far.

The respondent has also defaulted the payment of rent from July, 2013

onwards. It is further alleged in the petition that for the last 30 years, the

petitioner has been working abroad. Now he intends to return home due

to health reasons. The petitioner intends to start a mobile sale and service

centre in the petition schedule room. Hence he bona fide requires the

tenanted premises for starting the proposed business.

3. The respondent-tenant filed counter denying the allegations in

the petition. According to him, the need alleged is only a ruse for eviction.

The petitioner is quite well off and so there is no necessity for him to start

the proposed business. The petitioner has also other vacant buildings in his

possession. The respondent is entitled to the benefit of the second proviso

to Section 11(3).

4. PW1 was examined and Exts.A1 and A2 were marked on the

side of the petitioner. RWs.1 and 2 were examined and Exts.B1 to B5 were

marked on the side of the respondent. The report and plan of the advocate

commissioner have been marked as Exts.C1 and C1(a) respectively. The

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RCC on appreciation of the oral and documentary evidence, found the

need to be bona fide and hence allowed the R.C.P. under Section 11(3).

R.C.A.No.9/2017 filed by the respondent-tenant against the order of the

RCC, has been allowed finding the need to be not bona fide. Aggrieved,

the petitioner/landlord has come up in revision.

5. The only point that arises for consideration is, whether the

findings of the RCC or the RCAA suffer from any illegality, irregularity or

impropriety.

6. Heard Adv.K.Dilip, the learned counsel for the revision

petitioner and Adv.T.K.Ajith Kumar, the learned counsel for the

respondent.

7. Section 20 of the Act allows the aggrieved party to challenge

the legality, regularity or propriety of the order or proceeding of an

appellate authority. The revisional authority has to satisfy itself of the

legality, regularity or propriety of the order or proceedings of the appellate

authority. It can interfere when the impugned order is illegal, irregular or

improper. It is no doubt true that this Court sitting in revision, cannot

convert itself into an evidence collecting or fact finding court. The scope

of interference by the revisional court is restricted to cases where the RCC

or RCAA have relied on an irrelevant consideration, ignored valuable

R.C.R.No.211 of 2020

items of evidence or applied wrong principles of law. As held by the

Constitutional Bench in Hindustan Petroleum Corporation Ltd. v.

Dilbahar Singh, AIR 2014 SC 3708, a finding of fact recorded by the

RCC or the RCAA 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, then it 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 Act is entitled

to set aside the impugned order as being not legal or proper.

8. The RCAA interfered with the finding of the RCC on the

question of bona fides of the need alleged on the ground that there is no

discussion on the point by the RCC. However, the RCAA in turn has not

given any reason(s) as to why it concluded that the need is not bona fide.

The discussion relating to the bona fides of the need alleged is seen

discussed in paragraphs 16 and 17 of the impugned judgment, the relevant

portions of which read - " ..........PW1 has specifically deposed that he

needs to start a mobile sales and service center on an extensive basis. At

the same time he admits the fact that the petition schedule shop room is too

small to start such an extensive business. He has no case that he intends to

R.C.R.No.211 of 2020

utilise the other vacant rooms, which form part of the same building along

with the petition schedule shop room for this purpose." Further in

paragraph 17 it is stated thus - " ............. On the other hand a scrutiny of

the evidence tendered in this case would go to show that the need put

forward by the respondent/ landlord is lacking in bonafides and is a mere

ruse to evict the appellant tenant. Hence, I have no hesitation in holding

that the respondent/landlord has not succeeded in proving the bonafides of

the need put forward by him in the petition seeking eviction of the tenanted

premises."

8.1. The petitioner examined as PW1 has never admitted that the

petition schedule shop room is too small to start an extensive business, as

held by the RCAA. PW1 denied the suggestion put to him in the cross

examination that the petition schedule room does not have the facility or

that it is not convenient for starting a big mobile shop (പട ക പട ക മറ വല യ

ഒര mobile shop തടങ ന സ കര മല ത മറ യ ണ എന പറഞ ല ശര യല).

Therefore, the finding by the RCAA to the contrary is apparently

wrong/incorrect.

9. Further, the RCAA found the petitioner to be in possession of

other vacant rooms in the same building housing the petition schedule

room. However, the respondent when examined as RW1 in his cross

R.C.R.No.211 of 2020

examination admitted that the vacant rooms are available in the first floor

and not in the ground floor. He also admitted that apart from the said

vacant rooms in the first floor, the petitioner is not in possession of any

other room(s). In the additional proof affidavit filed by the petitioner, he

has offered the rooms on the first floor to the respondent in exchange for

the petition schedule room. The respondent when examined as RW1 in his

cross examination, was asked whether he was ready to shift his business to

the first floor, to which he answered in the negative and deposed that the

said rooms are not suitable for his business. Therefore it appears that the

tenant wants the landlord to start his proposed business in rooms which

even according to him are not suitable for conducting a business. The

tenant certainly cannot dictate terms to the landlord or tell him as to where

he is to start his business. As far as the protection under the second

proviso to Section 11(3) of the Act is concerned, it has already been held

by the RCAA that the respondent-tenant is not entitled to the same. The

RCAA apparently has misread the evidence on record leading to an

apparently wrong conclusion and hence interference into the same is called

for.

In the result, the RCR is allowed. The impugned judgment is set

aside. The order of eviction passed by the RCC under Section 11(3) of the

R.C.R.No.211 of 2020

Act is confirmed. The respondent shall vacate the building within a period

of one month from the date of this order.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

P.B.SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE ami/