Kerala High Court
Thankamani vs H.K. Vasudeva on 5 April, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
RCRev.No.14 of 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
RCREV. NO. 14 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 31.10.2023 IN RCA NO.5 OF 2018
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD /
III ADDITIONAL MACT, KASARAGODE ARISING OUT OF THE ORDER/JUDGMENT
DATED 28.03.2018 IN RCP NO.5 OF 2016 OF MUNSIFF COURT, HOSDRUG
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REVISION PETITIONER/S:
THANKAMANI, AGED 50 YEARS,
RESIDING AT LAKSHMI NAGAR, THERUVATH, HOSDURG
VILLAGE, HOSDURG TALUK, P.O. KANHANGAD,
KASARAGOD DISTRICT, PIN - 671315.
BY ADVS.
K.JAYESH MOHANKUMAR
PUSHPARAJAN KODOTH
VANDANA MENON
VIMAL VIJAY
RESPONDENT/S:
1 H.K. VASUDEVA, AGED 70 YEARS,
S/O. H.K. KRISHNAN, RESIDING AT LAKSHMI NILAYAM,
ALAMIPALLY, HOSDURG VILLAGE AND TALUK,
P.O. KANHANGAD, KASARAGOD, PIN - 671315.
2 H. LALITHA, AGED 58 YEARS,
W/O. H.K. VASUDEVA, RESIDING AT LAKSHMI NILAYAM,
ALAMIPALLY, HOSDURG VILLAGE AND TALUK,
P.O. KANHANGAD, KASARAGOD, PIN - 671315.
BY ADVS.
SURESH KUMAR KODOTH
SUKARNAN(K/001572/2021)
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCRev.No.14 of 2024 2
ORDER
Harisankar V. Menon, J.
This revision petition is filed under Section 20 of the Kerala
Buildings (Lease and Rent Control) Act, 1965 (for short, the Act)
by the tenant in RCP No.5 of 2016 before the Rent Control Court
(Munsiff), Hosdurg. The Rent Control Court allowed the claim for
eviction made by the respondent-landlord under the provisions
of Sections 11(2)(b) and 11(3) of the Act. Though an appeal is
preferred by the petitioner herein as RCA No.5 of 2018, the Rent
Control Appellate Authority-III(Additional District Judge-III),
Kasaragod, has only modified the orders of eviction by setting
aside the findings with respect to the provisions of Section 11(2)
of the Act. At the same time, the findings rendered by the Rent
Controller under Section 11(3) of the Act are confirmed, thereby
rejecting the appeal filed by the petitioner herein. It is against
the above orders, that the present revision petition is filed by the
petitioner-tenant under Section 20 of the Act.
2. The case put forward by the respondent-landlord
before the Rent Controller was to the effect that the scheduled
property was taken on rent by the petitioner-tenant for a monthly
rent of Rs.2,300/-. It is contended that the petitioner-tenant
defaulted payment of rent from November, 2015 onwards, and
hence, an eviction under Section 11(2) of the Act is to be ordered.
There was a further claim under Section 11(3) of the Act by the
respondent-landlord, contending that though he was working
abroad, he has returned recently, and the second respondent
herein, who was not having any avocation, wanted to start a
'ladies fancy shop'. The petitioner-tenant disputed both of the
above claims. Oral as well as the documentary evidence were
relied on by the petitioner-tenant and the respondent-landlord.
By an order dated 28.03.2018, the Rent Controller ordered
eviction on both counts.
3. The petitioner-tenant therefore, filed RCA No.5 of 2018
before the Rent Control Appellate Authority-III(Additional District
Judge-III), Kasaragod. It was contended before the said
authority that the findings rendered by the Rent Controller under
Sections 11(2) as well as 11(3) of the Act were erroneous and
there is no arrears of rent as contended by the landlords, that
bona fide need for starting a ladies fancy shop by the second
respondent herein, was only a ruse to evict the petitioner herein.
4. The Rent Control Appellate Authority, by an order dated
31.10.2023 has come to the finding that the rent payable was at
the rate of Rs.2,300/-, that there is no arrears of rent and
therefore, the finding rendered by the Rent Controller with
respect to the provisions of Section 11(2) of the Act was incorrect.
The eviction ordered under Section 11(2) of the Act was set aside.
At the same time, the findings rendered by the Rent Controller
with respect to the provisions under Section 11(3) of the Act on
account of the bona fide need pointed out were accepted by the
Rent Control Appellate Authority. Therefore, the eviction ordered
by the Rent Controller under Section 11(3) of the Act was upheld.
The contentions raised by the petitioner-tenant with respect to
the second proviso to Section 11(3) of the Act were rejected. It
is against the above findings rendered by the Rent Control
Appellate Authority, that the present rent control revision is filed
under Section 20 of the Act.
5. We have heard the learned counsel appearing for the
petitioner-tenant and the learned counsel appearing for the
respondents-landlords. We have also perused the orders issued
by the Rent Controller as well as the Appellate Authority referred
to above.
6. It is contended by the learned counsel for the petitioner-
tenant that he was conducting the business from 2007 onwards
and it is only when the first respondent started a business in the
adjoining room that he filed the present petition to evict the
petitioner-tenant so as to close down the shop in the pretext of
starting a new business in the said premises. The shop room in
which the ladies fancy shop is proposed to be started is a place
with least public accessibility, which is clear from the report of
the Advocate Commissioner in the year 2018, that non-disclosure
of the vacant room directly in possession of the landlords in the
Rent Control Petition is without any justification.
7. It is under the provision of Section 20 of the Act that this
revision petition is presented before this Court by the petitioner-
tenant. A reading of Section 20 of the Act would make it clear
that this Court while considering a revision petition filed under
Section 20 of the Act is not acting as a first or second court of
appeal. It is only a revisional jurisdiction that is conferred upon
this Court. Every order issued by the Rent Control Court and Rent
Control Appellate Authority cannot be interfered by this Court.
There cannot be any re-appreciation of evidence also. In this
connection, the decision rendered by the Apex Court in Rukmini
Amma Saradamma V. Kallyani Sulochana and Others
[(1993) 1 SCC 499] is referred to. In the said judgment, at
paragraph 20, the Apex Court has laid down the scope and ambit
of Section 20 of the Act as follows:
"20. We are afraid this approach of the High Court is wrong.
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 (Exts.C1 and C2 mahazar). In our
considered view, 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. Therefore, we are unable to agree
with the reasoning of the High Court with reference to the
exercise of revisional jurisdiction."
8. In the light of the above principles laid down by the
Apex Court, the re-appreciation of the evidence as contended by
the petitioner-tenant cannot be carried out in this revision
petition. The above principles laid down by the Apex Court have
been later approved by a constitution bench in the decision
reported as Hindustan Petroleum Corporation Limited V.
Dilbahar Singh [(2014) 9 SCC 78] and again in the decision
rendered as Thankamony Amma and Others v. Omana
Amma N. and Others [AIR 2019 SC 3803].
9. Having considered the submissions made as well as the
orders of the Rent Control Court and the Appellate Authority, we
are of the view that the findings rendered by the said authorities
cannot be found fault in any manner. The Rent Control Appellate
Authority has considered elaborately the submissions made
before it with respect to the alleged rooms which were lying
vacant in the possession of the respondents-landlords. The
Appellate Authority has categorically found that the evidence
tendered by the petitioner-tenant cannot be considered in the
light of the report of the Advocate Commissioner, who has
categorically found that all three rooms were being occupied by
other tenants. The oral evidence given by the Advocate
Commissioner referred to the report with reference to the room
No.X/264 (A4) to the effect that the said room, which cannot be
used as a ladies fancy shop room, is also to be noticed. Similarly,
the claim of the petitioner-tenant under the second proviso to
Section 11(3) of the Act is also rejected by the Appellate
Authority, relying on the report of the Advocate Commissioner
and the oral evidence of the petitioner-tenant before the Rent
Control Court, in which, she has admitted that several other
rooms are lying vacant.
10. In such circumstances, we are of the view that the
orders issued by the Rent Control Court as confirmed by the Rent
Control Appellate Authority with respect to the findings under
Section 11(3) of the Act cannot be faulted with. Therefore, the
present revision petition is only to be dismissed.
11. The learned counsel for the petitioner-tenant, in such
circumstances, prayed that the petitioner-tenant may be granted
six months time to vacate the scheduled shop room.
12. On the above submission made by the learned counsel
for the petitioner-tenant, the learned counsel for the respondent-
landlord would submit that the landlord has no objection in this
Court granting a reasonable time to the tenant for surrendering
vacant possession of the scheduled shop room, on condition that
the tenant shall clear the entire dues towards arrears of rent and
continue to pay the monthly rent for the remaining period,
without any default.
13. In such circumstances, this Rent Control Revision
Petition is dismissed declining interference on the impugned
judgment of the Rent Control Appellate Authority and the
impugned order of the Rent Control Court; however, by granting
four months' time to the petitioner-tenant, to surrender vacant
possession of the scheduled shop room to the respondents-
landlords 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 he will
surrender vacant possession of the scheduled shop
room to the petitioners-landlords within four months
from the date of this order and that, she shall not induct
third parties into possession of the scheduled shop
room and further she shall conduct any business in the
scheduled 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 two 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 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/-
HARISANKAR V. MENON, JUDGE
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