Dismissed

Rajan v. Koyatty

Kerala HC18 Nov 2021RCRev./118/2021

Case brief

AI extract

What is this about?

The High Court, in revision, dismissed the petition challenging an eviction order under the Kerala Buildings (Lease and Rent Control) Act, 1965, holding the Appellate Authority could not re-appreciate evidence. The revisioner was granted six months to vacate under conditions regarding rent payment and surrender of possession.

What did the court decide?

Revision dismissed; petitioner granted six months to vacate the premises upon payment of arrears and filing of an undertaking.

Rajan Vs Koyatty — Landlord and Tenant | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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THURSDAY, THE 18^TH DAY OF NOVEMBER 2021/ 27TH KARTHIKA, 1943

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R.C.REV.NO.118 OF 2021

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AGAINST THE JUDGMENT DATED 31.03.2021 IN R.C.A.NO.109 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), KOZHIKODE AND THE ORDER DATED 18.06.2018 IN R.C.P.NO.120 OF 2016 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-II), KOZHIKODE

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REVISION PETITIONER:

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RAJAN, AGED 48 YEARS, S/O.SANTHAKUMARI, RESIDING AT KUNNATHPOYIL KIZHAKKEPUTHUNILAM, PERUMANNA AMSOM DESOM, KOZHIKODE, NOW RESIDING AT SREENILAYAM, KALAPPUNA NILAM, P.O.PERUMANNA, KOZHIKODE - 673 019.

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BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.DONA PAUL

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RESPONDENT:

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KOYATTY

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AGED 68 YEARS, S/O.MUHAMMED HAJI, RESIDING AT PUTHIYADATHIL, P.O.POOVATTUPARAMBA, KOZHIKODE - 670 338.

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BY ADVS. SRI.NIRMAL.S SMT.VEENA HARI

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THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 18.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.Rev.No.118 of 2021

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O R D E R

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Ajithkumar, J

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This Rent Control Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was filed by the respondent-tenant in Rent Control Petition No.120 of 2016 before the Rent Control Court (Principal Munsiff-II), Kozhikode. The Rent Control Court ordered eviction under Section 11(2)(b) and rejected prayer for eviction under Section 11(3) of the Act. The respondent-landlord filed an appeal as R.C.A. No.109 of 2018 before the Rent Control Appellate Authority (Additional District Judge-V) Kozhikode and in the appeal, eviction was ordered under Section 11(3) of the Act as well. The said judgment of the Appellate Authority is under challenge in this Revision Petition.

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When this matter came up for admission on 20.09.2021

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this Court ordered urgent notice and on receiving notice, the respondent entered appearance. Today, both the learned counsel appearing for the petitioner and the learned Counsel appearing for the respondent are heard.

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R.C.Rev.No.118 of 2021

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The learned counsel appearing for the petitioner would submit that he is confining his challenge with respect to the finding of the Appellate Court on the bona fides of the respondent claiming eviction on the ground of own occupation alone. It was the specific case of the respondent in the eviction petition that he, aged 65 years, did not have any avocation and as he has to look after the affairs of his entire family including his wife and son’s family, he wanted to generate more income for which he requires to start a grocery shop in the petition schedule shop room. The learned counsel for the petitioner would contend that the assertions of the respondent while in the witness box are quite contradictory to those pleadings and considering the whole evidence, it would be possible only to say that a totally illogical case was put forth by the respondent. The learned counsel would further submit that the Appellate Authority totally went wrong in ordering eviction on the ground of bonafide need without considering those aspects.

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While exercising powers of revision under Section 20 of

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the Act, the powers of this Court is limited. As per sub-section (1)

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R.C.Rev.No.118 of 2021

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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

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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 subsection (1) shall be at its discretion.

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In Rukmini Amma Saradamma v. Kallyani

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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

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R.C.Rev.No.118 of 2021

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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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.

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In T. Sivasubramaniam v. Kasinath Pujari [(1999)

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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

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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

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on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.

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In Ubaiba v. Damodaran [(1999) 5 SCC 645] the

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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.

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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

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R.C.Rev.No.118 of 2021

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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 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.

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In Hindustan Petroleum Corporation Limited v.

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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

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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, regularity and propriety of the order impugned before it.

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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.

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R.C.Rev.No.118 of 2021

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The respondent-landlord is PW1. The petitioner assails evidence of PW1 mostly on the logic of it and not in terms of its truth or falsity. The categoric version of PW1 is that upto two years prior to filing of the Rent Control Petition, he had landed properties, where he was doing agricultural operations. When that was the circumstances in which his family was pulling on, there would not have been a need to think of starting any business. When the situation changed and the agricultural income stopped, he kindled the plan of starting the business. It is incorrect, in such circumstances, to say that his decision to conduct a business to generate income for the livelihood of his family by starting a grocery shop in the petition schedule shop room, which is in his ownership, is any way improbable. The cross examination did not bring out anything to discard the evidence of PW1.

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One fact brought out is that even with the difficulties in his life, PW1 did not demand rent for another room occupied by another tenant. It is stated that the tenant therein, who is conducting a hotel, does not generate any worthwhile income, and

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therefore, he has not been demanding rent from him. That is magnanimity. That cannot be treated as a demerit of the respondent and a reason to deny him his right to demand eviction of the petitioner. In a civil case, a fact can be proved by preponderance of probabilities. Strict evidence cannot be insisted on. Evidence of PW1 certainly inspires confidence of the court in regard to the need urged by him. The finding of the Appellate Authority that the respondent proved his projected need to be genuine and bona fide is sound and based on evidence.

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Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the order of eviction passed by the Appellate Authority under Section 11(3) of the Act, is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. We find no merits in this revision.

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Hence, this revision fails and we dismiss it.

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The learned counsel for the petitioner at this stage

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requested to grant a period of eight months for vacating the

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premises, pointing out the difficulty to find out a new room for shifting the business. We deem it appropriate to grant six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, subject to the following conditions:

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(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 he will surrender vacant possession of the petition schedule shop room to the petitioner-landlord within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further that he 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;

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

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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;

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(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 petition schedule shop room will stand cancelled automatically and the petitionerlandlord will be at liberty to proceed with the execution of the order of eviction.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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Sd/- P.G. AJITHKUMAR JUDGE

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PV/dkr

Rajan v. Koyatty

Case brief

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Rajan v. Koyatty

Case brief

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