Thankamma vs Joy
2022 Latest Caselaw 903 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 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
                   R.C.REV.NO.170 OF 2021
 AGAINST THE ORDER IN R.C.A NO.37 OF 2020 OF THE ADDITIONAL
 DISTRICT & SESSIONS COURT, MOOVATTUPUZHA DATED 18.03.2021
AGAINST THE ORDER IN R.C.P No.2 OF 2018 OF THE RENT CONTROL
             COURT, KOLENCHERY DATED 28.07.2020
REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP:

         THANKAMMA
         AGED 62 YEARS
         W/O.N.L.CHACKO, POPULAR GARMENTS, RESIDING AT
         NEERPARAKKALAYIL HOUSE, KOLENCHERRY P.O.,
         ERNAKULAM DISTRICT, PIN 682 311
         BY ADVS.
         ELDHO PAUL
         TESSY JOSE
         JOHNY CHERIAN


RESPONDENTS/RESPONDENTS IN RCA/PETITIONERS IN RCP:

    1    JOY
         AGED 64 YEARS
         S/O.KURIAKOSE, THANIKAMATTATHIL HOUSE, THONNIKKA
         KARA, KOLENCHERRY P.O., 682 311, AIKARANADU NORTH
         VILLAGE
    2    LISSY THAMPI
         AGED 54 YEARS
         W/O.LATE THAMPI, THANIKAMATTATHIL HOUSE,
         THONNIKKA KARA, KOLENCHERRY P.O., 682 311 (LEGAL
         HEIR OF 2ND PETITIONER IN R.C.P)
                               2
R.C.Rev.No.170 of 2021


     3     CHANDU
           AGED 33 YEARS
           S/O.LATE THAMPI, THANIKAMATTATHIL HOUSE,
           THONNIKKA KARA, KOLENCHERRY P.O., 682 311 (LEGAL
           HEIR OF 2ND PETITIONER IN R.C.P)
     4     NANDU
           AGED 30 YEARS
           S/O.LATE THAMPI, THANIKAMATTATHIL HOUSE,
           THONNIKKA KARA, KOLENCHERRY P.O., 682 311 (LEGAL
           HEIR OF 2ND PETITIONER IN R.C.P)
           BY ADVS.
           K.R.VINOD
           M.S.LETHA
           K.S.SREEREKHA
           PAUL P. MATHEW


     THIS RENT CONTROL REVISION HAVING COME UP           FOR
ADMISSION ON 25.01.2022, THE COURT ON THE SAME           DAY
DELIVERED THE FOLLOWING:
                                   3
R.C.Rev.No.170 of 2021


                             ORDER

Ajithkumar, J.

The petitioner is the tenant. Respondent No.1 along with

his brother, who is now no more, had filed R.C.P.No.2 of 2018

before the Rent Control Court(Munsiff), Kolenchery, seeking

eviction of the petitioner under Section 11(2) (b) and 11(3) of

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

Rent Control Court as per order dated 28.07.2020 ordered

eviction under Section 11(3) of the Act. The petitioner filed an

appeal as provided in Section 18(1)(b) of the Act. The Appellate

Authority dismissed the appeal, R.C.A No.37 of 2020 as per the

judgment dated 18.03.2021. Feeling aggrieved thereof, the

petitioner invoking jurisdiction of this Court under Section 20 of

the Act, has filed this Revision Petition.

2. The brother of respondent No.1 died during pendency

of the R.C.P. His legal representatives were impleaded in the

R.C.P and they are respondent Nos.2 to 4 herein.

3. Petition for eviction was filed with the contention that

petitioner was in default of payment of monthly rent from

R.C.Rev.No.170 of 2021

01.04.2016 onwards, and that respondent No.1 wanted the

petition schedule room for accommodating his grocery business

which he is conducting now in a rented building. Respondent

No.1 proposed to start the grocery business in the petition

schedule shop room together with its adjoining room, which is in

the possession of the husband of the petitioner.

4. The petitioner filed a counter statement. She refuted

the allegation that there has been arrears of rent. It was further

contended that the need urged was not bonafide inasmuch as

the respondent No.1 has in his possession, several other vacant

rooms convenient for his purpose. It was further contended that

the petitioner has been depending solely on the income derived

from the business in the petition schedule shop room for her

livelihood and no other suitable room is available in the locality

to shift her business. Another contention raised was that the 1 st

respondent and his brother have another building having 12

rooms of which 6 rooms are lying vacant.

5. The Rent Control Court recorded oral evidence of

PW1 and DW1. Exts.A1 to A4 were received in evidence. After

R.C.Rev.No.170 of 2021

hearing both sides, the Rent Control Court rejected the plea for

eviction under Section 11(2) (b) of the Act and allowed the

petition with respect to Section 11(3). The Appellate Authority

re-appreciated the entire evidence for considering the

contentions reiterated by the petitioner before it. The Appellate

Authority dismissed the appeal, confirming all the findings of the

Rent Control Court. The petitioner now assails findings of the

Rent Control Court as well as the Appellate Authority.

6. On 25.11.2021, this Court admitted the Revision

Petition directing notice to the respondents and stayed

execution of the order of eviction for a period of two months.

7. Today, we heard the learned counsel appearing for

the petitioner and also the learned counsel appearing for the

respondents.

8. The learned counsel appearing for the petitioner

raised a two-pronged contention to assail the need urged by the

respondents. Firstly, there is no requirement for respondent

No.1 to shift his business from the present building and,

secondly, several other vacant rooms are available in the

R.C.Rev.No.170 of 2021

possession of the respondents suitable for shifting the business.

Pointing out availability of other vacant rooms in the possession

of the respondents, the petitioner claims benefit of the 1st

proviso to Section 11(3) as well. The learned counsel for the

petitioner also has canvassed for a finding that the petitioner is

entitled to get the benefit of the 2nd proviso to Section 11(3) of

the Act.

9. The learned counsel appearing for the respondents,

on the other hand, would contend that all such points were

meticulously considered by the authorities below and the

findings rendered and eviction ordered by both the authorities

are factually and legally correct.

10. The issue that arises for consideration is as to,

whether the judgment dated 18.03.2021 of the Appellate

Authority and order dated 28.07.2020 of the Rent Control Court

require any interference?

11. The plea of the respondents that the 1st respondent

has been conducting a grocery shop in a rented building which

is situated some distance away, in the same city is proved by

R.C.Rev.No.170 of 2021

sufficient evidence. DW1, the petitioner admitted also that fact.

It has come out in evidence that the 1 st respondent has been

paying a rent of Rs.6000/- per month for that room which has

an area of about 500 sq.feet. Undisputedly, the petition

schedule shop room and its adjoining room which is in the

possession of the petitioner's husband have an area of 200

sq.ft. each. PW1 deposed before court that he wanted to shift

his business from the rented building to the petition schedule

shop room and its adjoining room which are in the ownership of

the respondents.

12. The question then is whether respondents' decision to

choose the petition schedule room, while they have other rooms

also in their ownership, is tainted with any malafides. Although

the petitioner contended that 6 rooms in another building

belonging to the respondents are lying vacant, there is nothing

on record to show that the 1st respondent has ownership to the

said building. Of course, PW1 admitted that the other building

has 10 rooms and except two, all rooms have been let out. The

effect of that solitary statement has been considered in detail by

R.C.Rev.No.170 of 2021

both the authorities below. It was found that there was no

unequivocal admission by PW1 that he or the other respondents

have in their possession such 2 vacant rooms. It is in evidence

that the other building having 10 rooms is a lodge building

where obviously a grocery shop cannot be housed. When both

the authorities below after considering the evidence in detail

arrived at the finding that no other suitable room or building

owned by the respondents is available vacant for the purpose

set forth by respondent No.1, this Court in exercise of the

powers under Section 20 of the Act cannot set those findings at

naught unless there is sufficient reason to say that such findings

are totally illegal and perverse.

13. 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

R.C.Rev.No.170 of 2021

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 at 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 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

R.C.Rev.No.170 of 2021

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.

15. 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

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

R.C.Rev.No.170 of 2021

recorded by the courts below.

16. 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 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

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

R.C.Rev.No.170 of 2021

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.

17. 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,

R.C.Rev.No.170 of 2021

regularity and propriety of the order impugned before it.

18. 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.

19. In the light of the principles adverted to above, the

inevitable conclusion shall be that the respondents proved the

bonafide need and the petitioner failed to substantiate the

contention that she is entitled to get the benefit of the 1 st

Proviso to Section 11(2) of the Act.

20. As per the 2nd 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

R.C.Rev.No.170 of 2021

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. A Full Bench of this Court in Francis

v. Sreedevi Varassiar [2003 (2) KLT 230] held that it is for

the tenant to prove both the limbs of the 2 nd proviso to Section

11(3) of the Act and that the tenant cannot insist that

alternative accommodation should be similar to that of the

tenanted premises in terms of the rate of rent and convenience.

21. Only evidence on which the petitioner places reliance

on, to claim benefit of the 2 nd proviso is her oral testimony.

Entire evidence she tendered before the Court in this respect is

so evasive. Even, to a question whether her husband has

constructed 6 apartments in his own property, she feigned

ignorance. What was her income from the business in the

petition schedule shop room and the income of her husband are

not tried to be proved by adducing any reliable evidence. The

assertion of the petitioner that several suitable rooms are

available in the locality on a lesser rate of rent, for shifting the

R.C.Rev.No.170 of 2021

business of the 1st respondent certainly fails her plea with

reference to the 2nd limb of the 2nd proviso to Section 11(3) of

the Act. It follows that the petitioner is not entitled to get

protection of the 2nd proviso to section 11(3) of the Act.

22. Having considered all the aforesaid aspects, we are of

the definite view that there is no reason to interfere with the

findings in the judgment of the Appellate Authority or order of

the Rent Control Court. Those are not suffering from any

illegality, irregularity or impropriety. Hence this Revision Petition

fails. We, accordingly, dismiss it.

23. The learned counsel for the petitioner requested at

least six months time for vacating the premises pointing out the

difficulty in finding out another room and making necessary

arrangements for shifting his business. The learned counsel for

the respondents is agreeable to grant six months' time.

24. 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:

R.C.Rev.No.170 of 2021

(i) The respondent-tenant in the Rent Control Petition shall

file an affidavit before the Rent Control Court within two

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

shop room to the petitioners-landlords within six months

from the date of this order and that, she shall not induct

third parties into possession of the petition schedule shop

room and further that she will 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 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

R.C.Rev.No.170 of 2021

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 petitioners-landlords 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