Kerala High Court
P.K.Abdul Rahim vs P.M.Hashim on 28 November, 2016
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 10TH DAY OF JULY 2017/19TH ASHADHA, 1939
RCRev..No. 48 of 2017 (A)
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AGAINST THE JUDGMENT IN RCA 202/2010 of RENT CONTROL APPELLATE
AUTHORITY/DISTRICT COURT,THALASSERY DATED 28-11-2016
AGAINST THE ORDER IN RCP 29/2009 of RENT CONTROL COURT/MUNSIFF
COURT, THALASSERY DATED 29-06-2010
REVISION PETITIONER(S)/APPELLANT/RESPONDENT NO.1:
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P.K.ABDUL RAHIM
AGED 64 YEARS, S/O.ABDULLA BAITHUL RAZOOK,
CHALAKKARA, MAHE.
BY ADVS.SRI.C.KHALID
SRI.T.P.SAJID
SRI.N.A.JOSEPH
SRI.K.P.MOHAMED SHAFI
SMT.K.S.HASEENA
SMT.K.REEHA KHADER
SMT.K.K.NESNA
RESPONDENT(S)/RESPONDENT/PETITIONER:
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P.M.HASHIM
AGED 53 YEARS, S/O.SALAM, RAHMATH MANZIL,
TEMPLE GATE, THALAI, THALASSERY,
REP. BY POWER OF ATTORNEY HOLDER P.K.ABDUL NAZAR,
58 YEARS, S/O.ABOOBACKER HAJI, RAHMATH MANZIL,
TEMPLE GATE, THALASSERY 670 101.
BY ADVS. SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 10-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OKB
K.HARILAL & P. SOMARAJAN, JJ.
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R.C.R. No.48 of 2017
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Dated this the 10th day of July, 2017
O R D E R
Harilal, J.
Revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short "the Act"). According to the petitioner, he bona fide needs the petition schedule shop room for his brother Sri.P.M.Mohammed Ismath to start a shop of mobile phones, its accessories and the service of the same, to eke out his livelihood. Neither the petitioner nor Mohammed Ismath is in possession of any other building of his own to start the proposed business. The tenant resisted the bona fides of the need by contending that the need projected is a ruse for eviction only. According to him, Sri.P.M.Mohammed Ismath, the dependent, has so many business such as travel agency, RCR. 48/17-A :2:
petrol pump, etc. at Thalassery and he has other buildings in his possession for starting the proposed business. Further, he claimed that he is entitled to get protection under the second proviso to section 11(3) of the Act.
2. On the aforesaid pleadings, both parties adduced evidence and after appreciating the evidence on record the Rent Control Court found that the need projected is a bona fide one and the tenant failed to prove that the dependent has other buildings in his possession to start the proposed business. But, no finding was made under the second proviso to section 11(3) of the Act. However, the Rent Control Court allowed the Rent Control Petition under Section 11(3) of the Act. In appeal, the Appellate Authority also concurred with the findings on the bona fides of the need. Thereafter, the Appellate Authority considered the evidence on record available under the second proviso to Section 11(3) and found that the tenants are not entitled to get protection under Section 11(3) of the Act. Consequently, the appeal was dismissed. The legality and RCR. 48/17-A :3:
propriety of the findings of the Appellate Authority are challenged in this revision.
3. Even though the appeal has been filed on various grounds, the learned counsel for the tenant mainly contended that the procedure adopted by the Appellate Authority, by rendering fresh findings under the second proviso to Section 11(3), when no finding was rendered by the Rent Control Court under the second proviso to section 11(3) of the Act, was irregular and the said irregularity warrants interference of this Court under revisional jurisdiction. According to him, when the Rent Control Court has not rendered any finding on the second proviso to Section 11(3) of the Act, the Appellate Authority ought to have remitted the Rent Control Petition back to the Rent Control Court after setting aside the order passed by the Rent Control Court. But, the Appellate Authority went wrong by evaluating the evidence available on record under the second proviso to Section 11(3) of the Act and rendered fresh findings on the second proviso and the said RCR. 48/17-A :4:
procedure adopted by the Appellate Authority is vitiated by procedural irregularity. As regards the bona fides of the need and the findings under the first proviso to Section 11 (3) of the Act, it is contended that the Appellate Authority miserably failed to appreciate the evidence on record in its correct perspective.
4. Per contra, the learned counsel for the respondent advanced arguments to justify the impugned judgment passed by the Appellate Authority. According to him, no prejudice was caused to the tenant by rendering fresh findings under the second proviso to section 11(3) of the Act by the Appellate Authority, even though the Rent Control Court has not decided the issue, under the second proviso to section 11(3) of the Act.
5. Going by the impugned judgment passed by the Appellate Authority, we find that, as rightly contended by the learned counsel for the tenant, the Rent Control Court has not rendered any finding under the second proviso to section 11(3) of the act. But, the Appellate Authority, RCR. 48/17-A :5:
instead of remitting the Rent Control Petition back to the Rent Control Court after setting aside the impugned order passed by the Rent Control Court, rendered fresh findings under the second proviso to Section 11(3) of the Act. It is true that the Appellate Authority has all the powers of the Rent Control Court. But, here, the question is, whether any prejudice was caused to the tenant by rendering fresh findings on the second proviso to Section 11(3) of the Act, where the Rent Control Court has not rendered any decision under the second proviso to Section 11(3) of the Act.
6. We are of the opinion that even though the tenant has a right of revision under Section 20 of the Act against the findings made by the Appellate Authority, this Court is not inclined to re-appreciate the evidence on record, in exercise of the revisional jurisdiction. Needless to say, revisional jurisdiction is confined to legality, propriety and regularity of the findings of the courts below only and a revision is not an appeal in disguise. Therefore, we find RCR. 48/17-A :6:
that the tenants have lost an opportunity to get re- appreciated the evidence on record by the Appellate Authority under Section 18 of the Act and thereby great prejudice was caused to the tenant. The Appellate Authority ought to have remitted the case back to the Rent Control Court for rendering the findings under the second proviso to Section 11(3) of the Act, instead of rendering a fresh finding on the second proviso to section 11(3) of the Act invoking jurisdiction of the Rent Control Court. Thus, the impugned judgment is vitiated by procedural irregularity and this Court is inclined to set aside the findings on the second proviso to Section 11(3) of the Act and we do so.
7. Coming to the bona fides of the need, it is the case of the landlord that his dependent brother requires the building for starting a shop for the sales of mobile phones, its accessories and also for service of the same. In order to prove the bona fides of the need, the Power of Attorney holder of the landlord was examined as P.W.1 and RCR. 48/17-A :7:
the dependent, for whose need the petition schedule building is required, was examined as P.W.2. After evaluating the evidence of P.W.1 and P.W.2, the courts below concurrently found that nothing has been brought out to discredit their evidence as to the bona fides of the need. The tenant opposed the bona fides of the need contending that the dependent is conducting "SK provisions" in Kannur Plaza building and a petrol pump at Kuthuparamba and he is financially sound. No evidence has been produced to substantiate the said contention. After examining Ext.B9 the courts below concurrently found that it cannot be taken into consideration to find that P.W.2 has other buildings or business. In the absence of any evidence to the contrary, the case of the dependent that he has no job or income has to be accepted. That apart, impecuniousness or lack of any other sources of income or business is not a condition precedent to prove the bona fides of the need and even an affluent person having other sources of income also can be desirous of RCR. 48/17-A :8:
starting a new business so as to augment his income.
8. On the above analysis, we find that the landlord has succeeded in proving the bona fides of the need and there is no illegality or impropriety in the finding that the need projected by the landlord for the dependent is a bona fide one. Thus, the findings rendered by the courts below as to the bona fides of the need and the first proviso under point No.2 in the judgment rendered by the Appellate Authority would stand confirmed.
9. Consequently, the impugned judgment passed by the Appellate Authority will stand set aside in part with respect to the findings on the second proviso to Section 11(3) of the Act only and the Rent Control Petition is remitted back to the Rent Control Court for rendering findings on the second proviso to Section 11(3) of the Act. The Rent Control Petition shall be disposed of afresh in accordance with the findings on the second proviso to Section 11(3) of the Act. It is made clear that the concurrent findings of the courts below under the bona RCR. 48/17-A :9:
fides of the need and the first proviso to Section 11(3) of the Act will stand confirmed. The parties shall appear before the Rent Control Court on 18/9/2017 and the Rent Control Court shall dispose the matter within a period of two weeks from the date of receipt of a copy of this order.
K.HARILAL, Judge.
P.SOMARAJAN, Judge.
okb.