Kerala High Court
Parappurath Hamsa vs Sudha Chandran on 17 May, 2022
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
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
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
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
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
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
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,
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,
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
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
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.
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
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
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
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
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
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.
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],
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
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
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.
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
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.
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
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
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
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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
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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
