N.S.S.Karayogam No.1317 vs Jayavarma Prabhu
2023 Latest Caselaw 1159 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
    WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                        RCREV. NO. 255 OF 2019
 (AGAINST THE JUDGMENT DATED 26.02.2019 IN R.C.A.NO.4 OF 2016 ON
        THE FILE OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-
 I/ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-I, PATHANAMTHITTA,
WHICH AROSE FROM THE ORDER DATED 26.11.2015 IN R.C.P.NO.20/2014 OF
                  THE RENT CONTROL COURT, THIRUVALLA)
REVISION PETITIONERS:


    1       N.S.S.KARAYOGAM NO.1317, MANIPUZHA, PODIYADI P.O,
            REPRESENTED BY IT'S PRESENT PRESIDENT-PURUSHOTHAMAN
            NAIR, AGED 61 YEARS, S/O LATE DAMODARAN PILLAI,
            REGHU NIVAS MANIPUZHA, PODIYADI P.O,
            THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. PIN-689 110.

    2       N.S.S KARAYOGAM NO.1317, MANIPUZHA, PODIYADI P.O,
            REPRESENTED BY IT'S SECRETARY, THULASIDHARAN NAIR, AGED
            50 YEARS, PUTHENPURAYIL HOUSE, NEDUMPURAM MURI,
            THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN-689 110.
            BY ADV K.B.PRADEEP

RESPONDENT:
    1       JAYAVARMA PRABHU, AGED 50 YEARS,
            RESIDING AT RANGANATHA BHAVANAM PODIYADI P.O,
            NEDUMPURAM VILLAGE, THIRUVALLA TALUK,
            PATHANAMTHITTA DISTRICT. PIN-689 110.


            BY ADVS.
            SRI.S.SANAL KUMAR
            SMT.BHAVANA VELAYUDHAN
            SMT.T.J.SEEMA

     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.C.R.No.255 of 2019
                                                 2



                       P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                          --------------------------------------------------
                                    R.C.R.No.255 of 2019
                            -------------------------------------------
                         Dated this the 18th day of January, 2023


                                           ORDER

C.S.Sudha, J.

This R.C.R. under Section 20 of the Kerala Buildings (Lease and Rent

Control) Act, 1965 (the Act) has been filed against the judgment dated 26/02/2019 in

R.C.A.No.4/2016 on the file of the Rent Control Appellate Authority (RCAA),

Pathanamthitta, which appeal is against the order dated 26/11/2015 in

R.C.P.No.20/2014 on the file of the Rent Control Court, Thiruvalla. The revision

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

2. R.C.P.No.20/2014 was filed by the petitioner, namely, NSS

Karayogam, Manipuzha, represented by its president seeking eviction under Section

11(2)(b), 11(3) and 11(17) of the Act. The RCC allowed eviction under all the

aforesaid sections. In the appeal preferred by the tenant, the order of the RCC was

reversed and the R.C.P. was dismissed. In the present revision, the ground under

Section 11(2)(b) is not pressed. The finding of the RCAA that the petitioner-landlord R.C.R.No.255 of 2019

has not produced its bye-laws and thus the claim that it is a public institution coming

within the ambit of Section 11(17) of the Act, has not been seriously challenged.

Hence we confine ourselves to the question as to whether the finding of the RCAA

that the benefit of the first proviso to Section 11(3) goes to the tenant, suffers from

any infirmity.

3. In the R.C.P., the allegation is that the landlord requires the premises

for the purpose of starting a Human Resource Centre and a Human Resource Cell in

the light of Ext.A5 circular. It is also alleged that the petition schedule room is the

most suitable room for the proposed need and that they have no other rooms in their

possession. They also alleged that the tenant is not entitled to the benefit of the

second proviso to Section 11(3).

4. The respondent-tenant filed counter denying the need alleged and

contended that it is a mere ruse for eviction. The intention of the landlord is to evict

him and let it out for higher rent and advance. The landlord has other rooms in his

possession, which are suitable for the proposed need. He also contented that he is

entitled to the benefit of the second proviso to Section 11(3).

5. Before the RCC, PW1 was examined and Exts.A1 to A8 were marked

on the side of the petitioner-landlord. DW1 was examined on behalf of the

respondent. No documentary evidence was produced by the tenant. The report and

plan of the advocate commissioner have been marked as Exts.C1 and C1(a)

respectively. The RCC, on an appreciation of the oral and the documentary evidence, R.C.R.No.255 of 2019

and after hearing both sides, allowed the R.C.P. and ordered eviction under Section

11(2)(b), 11(3) and 11(17) of the Act. In R.C.A.No.4/2016 filed by the tenant, the

order of the RCC has been reversed and the appeal allowed. Aggrieved, the

petitioner-landlord has come up in revision.

6. Heard Sri.K.B.Pradeep, the learned counsel for the revision petitioner

and Sri.S.Sanal Kumar, the learned counsel for the respondent.

7. The only point that arises for consideration is, whether the findings of

the RCAA suffer from any illegality, irregularity or impropriety.

8. 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 power of revision is limited to make a scrutiny of records to satisfy itself as to

the three tests laid down in Section 20. The revisional court 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

irrelevant consideration, ignored valuable items of evidence, or applied wrong

principles of law. Where there is no illegality, impropriety or irregularity in the

orders of the RCC and the RCAA, there is no justification for invocation of the

revisional jurisdiction under Section 20 of the Act. 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 an irrelevant consideration, ignored valuable items of R.C.R.No.255 of 2019

evidence or applied wrong principles of law. As held by a Constitution Bench of the

Apex Court 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. The High Court is entitled to

satisfy itself of the correctness or legality or propriety of any decision or order

impugned before it.

9. It was submitted by the learned counsel for the landlord that the

RCAA went wrong in holding the first proviso in favour of the tenant in spite of

absence of any evidence in that regard. Per contra, it was argued on behalf of the

tenant that the RCAA is right in holding so, as the evidence on record shows that the

landlord is in possession of one room in the ground floor and one hall in the first

floor, which are quite suitable for the need alleged. It was further argued, relying on

the decisions in Janatha Drugs v. Maithri Construction, 2007 (4) KLT 625 and

Mareena @ Santha v. Elizabeth, 2013 KHC 222, that the burden is on the landlord

to plead and prove special reasons when he is shown to be in possession of other

rooms. It was also pointed out by relying on the decision in Pasupuleti R.C.R.No.255 of 2019

Venateswarlu v. Motor & General Traders, AIR 1975 SC 1409, that when there

are subsequent events disabling the landlord from seeking eviction, High Court in

revision is bound to take note of the said events while disposing of the revision.

10. According to the RCAA, the landlord is in possession of two rooms,

that is, one on the western side of the petition schedule room and the one on the first

floor, that is, a hall, for which no special reasons have been given by the landlord for

not utilising the same for the proposed need. Hence, in the light of the first proviso to

Section 11(3), the landlord is not entitled to an order of eviction. Therefore, it also

finds that as suitable rooms are already in possession of the landlord and as they have

not been used for the proposed need, the RCAA concluded that the need alleged is

not bonafide. It is well settled that the burden to prove that the landlord is in

possession of vacant rooms is on the tenant. Only when the said aspect is proved,

the burden shifts to the landlord to establish that the rooms shown to be in his

possession are not suitable or show special reasons for not occupying the same. In

the R.C.P., it is specifically pleaded that the petition schedule room is the most

suitable room for the proposed need. According to the RCAA, the room situated to

the western side of the petition schedule room is lying vacant even before the filing of

the R.C.P. We are unable to comprehend as to how and on what basis or evidence,

the RCAA concluded that the room on the western side was lying vacant at the time

of filing the R.C.P. The R.C.P. is seen filed on 28/10/2014. The advocate

commissioner is seen to have visited the property on 04/12/2014 and filed Ext.C1 and R.C.R.No.255 of 2019

C1(a) before the court on 27/02/2015. On a reading of Ext.C1, we find no rooms

lying vacant in the ground floor of the building housing the petition schedule room.

This aspect is discussed in paragraph 8 of the order of the RCC, which found no

evidence on record to show that any rooms are lying vacant when the R.C.P. was

filed. Therefore, in such circumstances, the RCAA certainly went wrong in

interfering with the finding of the RCC and holding the benefit of the first proviso in

favour of the tenant in the absence of evidence to show that the landlord is in

possession of any vacant room(s) in the ground floor.

11. The tenant also refers to a hall in the first floor of the building.

This is admitted by the landlord also. The Secretary of the petitioner-karayogam,

when examined as PW1 has given an explanation for this in the box. He deposed that

as the hall is in the first floor, it is difficult for senior citizens to access the hall. This

aspect deposed by PW1 is not seen challenged by the tenant in the cross examination.

In the R.C.P., the need put forward is to start a Human Resource Centre and a Human

Resource Cell. The Human Resource Centre is intended from all the members of the

petitioner-karayogam, be it, young or old. Therefore, the reason cited is a cogent

reason which has not been discredited also. Hence, the RCC was right in accepting

the same and finding that the landlord has shown special reason for not occupying the

hall in the first floor. The RCAA went wrong in concluding that no special reason

has been shown by the landlord. As the RCAA has apparently gone wrong in its

reading of the evidence on record, an interference into the findings is called for. R.C.R.No.255 of 2019

In the result, the R.C.R. is allowed. The impugned judgment in

R.C.A.No.4/2016 is set aside. The order of the RCC directing eviction under Section

11(3) is restored and the respondent-tenant is directed to vacate the petition schedule

room 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

Jms/16.01