C. AJITHA v. K. ABDUL WAHAB

THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE G.GIRISH TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 RCREV. NO.32 OF 2024 AGAINST THE JUDGMENT DATED 29.11.2023 IN RCA NO.3 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THALASSERY AND THE ORDER DATED 29.08.2019 IN R.C.P.NO.65 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF COURT), THALASSERY REVISION PETITIONER/APPELLANT/RESPONDENT: VAYALAMBRON SANIL KUMAR AGED 55 YEARS S/O GOVINDAN, LIC AGENT, RESIDING AT KUTTIKATTIL HOUSE, ERUVATTY AMSOM, UMMANCHIRA DESOM, P.O UMMENCHIRA, THLASASSERY TALUK KANNUR, PIN - 670649 BY ADVS.ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI RESPONDENT/RESPONDENT/PETITIONER: K. ABDUL WAHAB S/O MAMMU, RESIDING AT WINGS, CHALAKKARA, P.O NEW MAHE, THALASSERY TALUK, KANNUR, PIN - 673311 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.02.2024, ALONG WITH RCRev.NO.27/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos.27, 28 & 32 of 2024 Anil K. Narendran, J. 4 ORDER These Rent Control Revisions filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, arise out of the common order dated 29.08.2019 of the Rent Control Court (Munsiff), Thalassery in R.C.P.Nos.65, 66 and 67 of 2016 and connected matters and the common judgment dated 29.11.2023 of the Rent Control Appellate Authority (District Judge), Thalassery in R.C.A.Nos.173 and 184 of 2019 and 3 of 2020 and connected matters. The respondent herein-landlord R.C.P.Nos.65, 66 and 67 of 2016, invoking the provisions under Section 11(3) of the Act, seeking eviction of the tenant from the petition scheduled shop rooms, which form part of a three- storied commercial building - ‘Mammu Shopping Complex’, for the bona fide need of the landlord to use the ground floor and first floor of that shopping complex for conducting hotel business. In R.C.P.Nos.65 and 66 of 2016 order of eviction was sought for under Section 11(4)(v) of the Act as well, on the ground that the tenant ceased to occupy the petition schedule building for the last one and a half years. The tenants in R.C.P.No.65 of 2016 and 66 of 2016 are conducting LIC Premium Collection Agency in the petition schedule shop rooms on the R.C.R.Nos.27, 28 & 32 of 2024 5 first floor of the shopping complex and the tenant in R.C.P.No.67 of 2016 is conducting a tailoring shop in the petition schedule shop room on the ground floor of that shopping complex. Before the Rent Control Court, the tenant in the respective Rent Control Petitions entered appearance and filed counter. R.C.P.Nos.65, 66 and 67 of 2016 along with connected matters, i.e., R.C.P.Nos.68, 70 and 71 of 2016 were tried together. On the side of the landlord, he was examined as PW1 and Exts.A1 to A24 were marked. On the side of the tenants, RWs.1 to 5 were examined and Exts.B1 to B7 were marked. After considering the pleadings and evidence on record, the Rent Control Court granted an order of eviction under Section 11(3) of the Act on a finding that the need projected by the landlord for seeking an order of eviction is bona fide and that the first proviso to Section 11(3) of the Act has no application to the facts and circumstances of the case and that the tenant in the respective Rent Control Petitions is not entitled to the protection under the second proviso to Section 11(3) of the Act. Accordingly, the tenant in the respective Rent Control Petitions is directed to give vacant possession of the petition schedule shop rooms to the landlord, within two months from the date of that order. The order of eviction sought for under Section 11(4)(v) of the Act in R.C.P.Nos.65, 66, 68 and 71 R.C.R.Nos.27, 28 & 32 of 2024 6 of 2016 was declined.

2. Challenging the order of eviction granted by the Rent Control Court, the tenant in R.C.P.Nos.67, 66 and 65 of 2016 filed R.C.A.Nos.184 of 2019, 173 of 2019 and 3 of 2020 before the Rent Control Appellate Authority, Thalassery. Those appeals, along with the connected matters, i.e., R.C.A.Nos.182 and 183 of 2029 and 4 of 2020 were dismissed by the common judgment dated 29.11.2023 of the Rent Control Appellate Authority, whereby the order of eviction granted by the Rent Control Court under Section 11(3) of the Act stands confirmed.

3. Feeling aggrieved by the common order dated

29.08.2019 of the Rent Control Court, Thalassery R.C.P.Nos.67, 66 and 65 of 2016 and the common judgment dated 29.11.2023 of the Rent Control Appellate Authority, Thalassery in R.C.A.Nos.184 and 173 of 2019 and 3 of 2020, grating an order of eviction under Section 11(3) of the Act, the tenant in the respective Rent Control Petitions is before this Court in these Rent Control Revisions, invoking the provisions under Section 20 of the Act.

4. Heard the learned counsel for the petitioner-tenant in the respective Rent Control Revisions and also the learned counsel for the respondent-landlord. R.C.R.Nos.27, 28 & 32 of 2024 7

5. During the course of arguments, the learned counsel for the petitioner-tenant would confine the challenge made in these Rent Control Revisions against the finding of the Rent Control Court as well as the Rent Control Appellate Authority on the applicability of the first proviso to Section 11(3) of the Act.

6. The learned counsel for the petitioner-tenant would point out that the landlord has vacant possession of two shop rooms on the ground floor and two shop rooms on the first floor of the shopping complex. In addition to this, the landlord has vacant possession of two rooms on the second floor of the shopping complex. In the Rent Control Petition, the landlord has not disclosed the availability of those shop rooms, which are suitable for conducting hotel business. In the absence of any special reasons, the Rent Control Court as well as the Appellate Authority ought to have held that the first proviso to Section 11(3) of the Act has application in the facts and circumstances of the case and hence the landlord is not entitled to an order of eviction under Section 11(3) of the Act.

7. On the other hand, the learned counsel for the respondent-landlord would submit that, when the need projected by the landlord for seeking an order of eviction under Section 11(3) of the Act is for using the entire ground floor and first floor R.C.R.Nos.27, 28 & 32 of 2024 8 of that shopping complex for conducting hotel business, the fact that the landlord is in vacant possession of a few shop rooms in the ground floor, first floor or second floor of the three-storied shopping complex will not attract the 1st proviso to Section 11(3) of the Act.

8. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 R.C.R.Nos.27, 28 & 32 of 2024 9 on such trade or business.

9. 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.

10. 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 as to 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 R.C.R.Nos.27, 28 & 32 of 2024 10 both the parties understood the case and placed materials before the court, and the 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 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.

11. 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 the first proviso to Section 11(3) of the Act, the availability of a vacant building in his possession and seek to explain the 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 the 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 R.C.R.Nos.27, 28 & 32 of 2024 11 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 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.

12. 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 a 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 the 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 the availability of buildings in his possession and plead special reasons for not R.C.R.Nos.27, 28 & 32 of 2024 12 occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could, 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 the non-occupation of the premises for his alleged needs.

13. In Dineshan Pillai P.B. v. Joseph @ Jose [2019 (3) KHC 206] a Division Bench of this Court was dealing with a case in which one of the contentions of the tenant was that the landlord has several other vacant buildings of his own in his possession to start the proposed business. The Division Bench noticed that the pleadings are very vague with respect to the first proviso to Section 11(3) of the Act. It is stated that the landlord has several other buildings. No particular vacant room has been identified or pointed out in the pleadings. The Division Bench opined that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the tenant has not discharged the initial burden of proof under the first Proviso to Section 11(3) R.C.R.Nos.27, 28 & 32 of 2024 13 of the Act.

14. In the instant case, the need projected in the Rent Control Petitions for seeking an order of eviction under Section 11(3) of the Act is that of the landlord, who was examined as PW1, to use the ground floor and first floor of a three-storied commercial complex by name ‘Mammu Shopping Complex’ for conducting hotel business. In the proof affidavit, the landlord has stated that he requires all rooms on the ground floor and first floor of the building to start the hotel business. The rooms on the second floor are not suitable for the proposed business. PW1 has admitted that he is in possession of two rooms on the ground floor and one room on the first floor. When the requirement of the landlord to start the hotel business in the entire rooms on the ground floor and first floor of the building, i.e., six rooms on the ground floor and six rooms on the first floor, the possession of two rooms on the ground floor and one room on the first floor by the landlord will not attract the provisions under the first proviso to Section 11(3) of the Act. After considering the pleadings and evidence on record, the Rent Control Court and the Appellate Authority arrived at a conclusion that the provisions under the first proviso to Section 11(3) of the Act has no application to the facts and circumstances of the case. Viewed R.C.R.Nos.27, 28 & 32 of 2024 14 in the light of the law laid down in the decisions referred to supra and that relied on by the authorities below, it cannot be said that the reasoning in the impugned order/judgment on the above aspect is either perverse or patently illegal, warranting interference by this Court.

15. 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.

16. 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 R.C.R.Nos.27, 28 & 32 of 2024 15 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 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.

17. 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.Nos.27, 28 & 32 of 2024 16 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.

18. 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 with the second appellate power conferred on the civil court under the R.C.R.Nos.27, 28 & 32 of 2024 17 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.

19. 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 re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, R.C.R.Nos.27, 28 & 32 of 2024 18 regularity and propriety of the order impugned before it.

20. 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.

21. In Abdul Salam v. Sebastian [2013 (4) KLT 592], a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can re- appreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through R.C.R.Nos.27, 28 & 32 of 2024 19 the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence.

22. In Regy V. Edthil v. Hubert Leslie D’Cruz [2016 (2) KLJ 164], a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available.

23. 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 Appellate Authority in the impugned order/judgment that the first proviso to Section 11(3) has no application in the facts and circumstances of the is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. In such circumstances, these Rent Control Revisions fail and the same are accordingly dismissed.

24. The learned counsel for the petitioner-tenant would submit that the tenant in the respective revisions is conducting R.C.R.Nos.27, 28 & 32 of 2024 20 business in the petition schedule shop rooms. They may be granted at least six months’ time to vacate the premises.

25. In such circumstances, these Rent Control Revisions are dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and the order of the Rent Control Court; however, by granting five months’ time to the petitioner-tenant in the respective revisions, to surrender vacant possession of the petition schedule shop rooms to the respondent-landlord, subject to the following conditions: (i) The respondent-tenant in the respective Rent Control Petitions shall file affidavits 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 they will surrender vacant possession of the petition schedule shop rooms to the petitioner- landlord within five months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/consent issued authority/statutory authorities; (ii) The respondent-tenant in the respective Rent Control Petitions 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 R.C.R.Nos.27, 28 & 32 of 2024 21 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 respective Rent Control Petitions 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 rooms will stand cancelled automatically and the petitioner- landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- G. GIRISH, JUDGE AV/7/2