Dismissed

Government of India v. a.Mammikutty

Kerala HC9 Nov 2021RCRev./143/2020

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging an eviction order. It held that the daughter of the landlord qualifying as a needs to start a dental clinic. The court also clarified that high courts cannot act as appellate courts by re-appreciating evidence in revision petitions.

What did the court decide?

Petitioner granted nine months to vacate the premises; time limit cancelled if default in rent payment occurs.

Government of India Vs a.Mammikutty — 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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TUESDAY, THE 9^TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943

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RCREV. NO. 143 OF 2020

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AGAINST THE JUDGMENT DATED 30.11.2019 IN R.C.A No.16 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE),TIRUR AND

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THE ORDER DATED 18.09.2017 IN R.C.P NO.36 OF 2015 OF RENT CONTROL COURT(MUNSIFF),TIRUR

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REVISION PETITIONER:

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GOVERNMENT OF INDIA

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REPRESENTED BY SUPERINTENDENT OF POST OFFICE, TIRUR DIVISION, TIRUR, PIN-676104.

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BY ADV. SRI.M.N.MANMADAN, CGC

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RESPONDENTS:

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A.MAMMIKUTTY AGED 59 YEARS

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S/O. MUHAMMED HAJI, APM MANZIL, PAYYANGANGADI, TIRUR AMSOM, KOTT DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676101.

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BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.REV. NO. 143 OF 2020

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O R D E R

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Ajithkumar, J

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The petitioner is the respondent-tenant in Rent Control Petition No.36 of 2015 before the Rent Control Court, Tirur. The order of eviction under Section 11(3) of the Kerala Buildings Lease and Rent Control) Act, 1965 passed by the Rent Control Court was challenged by the petitioner before the Rent Control Appellate Authority (Additional District Judge), Tirur by filing Rent Control Appeal No.16 of 2018. Unsuccessful in the appeal, the petitioner filed this Rent Control Revision.

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On 20.01.2021 this Court issued notice to the respondent and granted an interim order staying the execution proceedings for 3 months. The order has been extended from time to time and the order is still in force.

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The learned Central Government Standing Counsel appearing for the petitioner and the learned counsel for the respondent are heard.

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R.C.REV. NO. 143 OF 2020

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A post office is functioning in the petition scheduled building. The tenancy commenced on 07.02.2000. The respondent-landlord sought eviction on the ground that his

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daughter, who is a dependent of him, wants the petition schedule building for starting a dental clinic. Respondent's daughter Smt.Jaseena is claimed to be a qualified dental doctor and no other building is available with the respondent for the purpose.

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The petitioner resisted the Rent Control Petition by

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filing a counter statement. The contentions were twofold. Firstly, the need projected is not bona fide. A demand made by the respondent for increasing rent in 2014 was declined by the petitioner and the present petition is its offshoot. Secondly, the daughter of the respondent never would come to start a clinic in the petition schedule building.

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The learned Central Government Standing Counsel

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relying on Koyilerian Janaki and others v. Rent Controller(Munsiff), Cannanore and others , [(2000) 9 SCC

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406] and Albert Mendez v. Rema Chandran and others [2007(3) KLT 23], argued that Smt.Jaseena is not a dependent of the respondent in the context of Section 11(3) of

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the Act and therefore the need urged cannot said genuine or bona fide.

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In Koyilerian Janaki (supra) it was held that where

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eviction of a tenant is sought by a landlord for occupation of any member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises is required is a member of the landlord's family.

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Secondly, such member of the family is dependent on the landlord and thirdly, there is a bona fide need. In the absence of any one of the three ingredients, the petition by a landlord under Section 11(3) would fail.

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Requirements of Section 11(3) in the above context

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has been dilated in Albert Mendez (supra) in the following words:

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“A family can have a member, who is not a dependent of the landlord and in which case Section 11(3) cannot be pressed into service. The requirement of the section can be satisfied only if it is pleaded and proved that the concerned member of the family is dependent on the landlord. The mere reason that the husband is a member of the family, does not presuppose that the husband is a dependent of the wife. The fact of membership in the family does not satisfy the requirement of Section 11(3). The essential requirement of Section 11(3), is dependency of the member of the family.

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In this case, the respondent categorically pleaded that his daughter obtained B.D.S degree and got registration under the Dentists Act, 1948, and in order to start a dental clinic, she requires the building. Exts.A1 to A3 were produced to substantiate that fact. There is no reason to discard the said evidence. The authorities below analysed the evidence relating

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to the qualification of Smt.Jaseena and came to the correct conclusion that she was a qualified dental surgeon.

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There is no need for elaboration as to the fact that a

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daughter is dependent on her father, no matter, she is married or not. In the absence of evidence to show that the daughter is in possession of a suitable building for her purpose, it can only be said that the daughter is a dependent of the father-landlord for an accommodation. In that perspective, the evidence in this case is sufficient to prove that Smt.Jaseena is the dependent of the respondent for the purpose of Section 11(3) of the Act.

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Main reason stated to show the need urged is not bona fide is that the respondent's demand for a hike of rent in 2014 was declined by the petitioner. It is an admitted fact that the petitioner in 2014, had demanded extension of the lease for a period of one year. The demand for a hike in rent was in that context. In the circumstances, the said demand and decline cannot discredit the need urged by the respondent after a period

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of more than one year. We are of the view that it is not available for the petitioner to contend that the claim cannot be allowed on the said ground.

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The contention raised that there are other buildings in the possession of the landlord is not supported by any evidence. This is not a case where the second proviso to Section 11(3) has any application.

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We shall now consider how far this Court under its revisional jurisdiction can interfere with the impugned judgment. Section 20 of the Act deals with revision. As per sub-section (1)

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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

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to the legality, regularity or propriety of such order or

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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.

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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 Act came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have reappreciated the entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the

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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. Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence.

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Of course, the revisional court can come to a different conclusion

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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.

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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 Act, 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

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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

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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 reappreciating 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. 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 Act does not enable the High Court to act as a first or a

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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

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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

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2019 SC 3803 : 2019 (4) KHC 412] considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma,

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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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We are of the view that applying the principle of law

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as discussed above, the impugned judgment is not suffering from any illegality, irregularity or impropriety. Hence, this revision fails and is dismissed.

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The learned Central Government Counsel for the petitioner at this juncture requested to grant a period of one year for vacating the premises, pointing out the difficulty in view of the pandemic situation to find out a new room for shifting the post office being functioned in the petition schedule shop room. We deem it appropriate to grant nine months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlord, on the condition that the petitioner-tenant shall continue to pay rent for every succeeding months, without any default. It is made clear that, in the event of the petitioner-tenant failing to comply with the above condition, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand

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cancelled automatically and the respondent-landlord will be at

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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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