Chandran @ Chandu vs C H Meenakshi on 17 March, 2022

[Cites 17, Cited by 2]

Kerala High Court

Chandran @ Chandu vs C H Meenakshi on 17 March, 2022

The petitioner is the respondent-tenant in R.C.P.No.18 of 2014 on the file of the Rent Control Court (Munsiff), Vadakara, a petition filed by the respondents herein- landlords, invoking the provisions under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. The petition schedule shop room originally belonged to Kunhiraman, the husband of the 1st respondent herein and father of respondents 2 to 6. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the 5 th respondent herein, who bona fide requires the said shop room to start churidhar ready-made business and stitching unit, for her livelihood. In the Rent Control Petition, it is averred that, the landlords are not in possession of any other suitable vacant room to fulfill the need of the 5 th respondent. They are in possession of a vacant room, vazhimuri, situated on the R.C.REV.NO.359 OF 2016 4 back side of the entire building. If a door frame is fixed, the said room can be utilised for conducting the stitching unit. In the Rent Control Petition, it is pointed out that, the tenant is not depending on the jewellery business conducted in the petition schedule shop room for his livelihood. Moreover, there are other suitable vacant rooms in the locality, for the tenant to shift his business.

2. Before the Rent Control Court, the tenant filed counter, denying the bona fide need projected in the Rent Control Petition. According to the tenant, the 5 th respondent has no difficulty for her livelihood. In the petition schedule shop room, there is no sufficient space to start churidhar ready-made business and stitching unit. There are other suitable vacant rooms in the possession of the landlords to start proposed business, if they prefer. Though the tenant has job as an Appraiser in Indian Bank, he is mainly depending on the income from the petition schedule shop room for his livelihood. In the counter, the tenant has also stated that the landlords filed the Rent Control Petition since R.C.REV.NO.359 OF 2016 5 he was not prepared to accept their demand for enhancement of rent as Rs.1,500/- per month.

3. Before the Rent Control Court, the 5 th petitioner was examined as PW1 and the registered kychit dated 14.08.1979 executed between the tenant and the predecessor in interest of the landlords was marked as Ext.A1 and a certified copy of common judgment in R.C.A.Nos.148, 149, 150, 151 of 2010, 15 and 17 of 2011 of the Rent Control Appellate Authority, Vadakara, was marked as Ext.A2. The tenant has not chosen to adduce any oral evidence. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. The tenant failed to prove that the landlords are in possession of any other suitable room in the locality in order to attract first proviso to Section 11(3) of the Act. Further the tenant did not adduce evidence to prove that he is depending for his livelihood mainly on the income derived R.C.REV.NO.359 OF 2016 6 from the business conducted in the petition schedule building, in order to get protection under the second proviso to Section 11(3) of the Act. Though the finding of the Rent Control Court on the above aspects were in favour of the landlords, the Rent Control Court, relying on the judgment of the Apex Court in Mohammad Ahmad v. Atma Ram Chauhan [(2011) 7 SCC 755] held that, if present and prevalent market rent assessed and fixed between the parties is paid by the tenant, then the landlord shall not be entitled to bring any action for eviction against such a tenant at least for a period of 5 years. Thus, for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises. The reasoning of the Rent Control Court in paragraph 17 and 18 of the order in R.C.P.No.18 of 2014 read thus;

"17. During the final hearing, learned counsel for respondent submitted that respondent shall not be evicted from the petition schedule room as he is entitled to immunity from eviction as per guidelines laid down by Hon'ble Supreme Court in Mohammad Ahmad and another Vs. Atmaram Chauhan and R.C.REV.NO.359 OF 2016 7 others reported in 2011 KHC 4505 : 2011 (7) SCC 755. In the above case Hon'ble Supreme Court laid down a guideline that if present and prevalent market rent assessed and fixed between the parties is paid by the tenant, then landlord shall not be entitled to bring any action for eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years, the tenant shall enjoy immunity from being evicted from the premises.

18. From Ext.A2 order (Common Order in R.C.A. Nos.148, 149, 150, 151 of 2010, R.C.A.No.15 of 2011 and R.C.A.No.17 of 2011) it is proved, that the above order passed against order passed in R.C.P.No.34 of 2005, R.C.P.No.151 of 2010, R.C.P. No.35 of 2011, R.C.P.No.15 of 2011 and R.C.P.No. 30 of 2011 of Rent Control Court, Vatakara, dated 26-11-2010. In the affidavit in lieu of chief examination filed by PW1, it is stated that rent of the petition schedule room is fixed as Rs. 1,000/- per month as per order in R.C.A.No.15 of 2011. From the evidence adduced by PW1 and from Ext.A2 order, it is proved that rent of the petition schedule room is fixed by the Court, within a period of 5 years from the date of filing this R.C.P. i.e., 13.03.2014, as order in the R.C.A. and in R.C.P. within the period of 5 years from the date of relevant orders. Though as per the order in R.C.A. rent enhanced from R.C.REV.NO.359 OF 2016 8 11.03.2005, it could not be said that date of order of fixation of rent is not within the period of 5 years from the date of this petition. It could not be said that rent fixed under section 5 of Kerala Buildings (Lease and Rent Control) Act, is not the present and prevalent market rent fixed between the parties. Hence the contention raised by the respondent is sustainable and respondent is entitled to immunity from eviction for a period of five years from the date of fixation of fair rent in respect of petition schedule room As this petition is filed within the period of immunity from eviction, as per guideline laid down by Hon'ble Supreme Court in the case referred above, petitioners are not entitled to an order of eviction that they sought for."

Accordingly, by the order dated 16.02.2015, the Rent Control Petition was dismissed with cost and it was held that, the landlords are entitled to file petition seeking the same relief after expiration of the period of immunity entitled to the tenant.

4. Challenging the aforesaid order of the Rent Control Court, the landlords filed R.C.A.No.55 of the 2015 before the Rent Control Appellate Authority (Additional District Judge), Vadakara, invoking the provisions under R.C.REV.NO.359 OF 2016 9 Section 18(1)(b) of the Act. In the absence of an appeal filed by the tenant, the other findings of the Rent Control Court on the ground of eviction under Section 11(3) of the Act has attained finality. Before the Appellate Authority, the points of consideration was limited as to whether the tenant will get the benefit of the guidelines laid down by the Apex Court in Mohammad Ahmad v. Atma Ram Chauhan [(2011) 7 SCC 755] and whether the appellant-landlord is entitled to get an order of eviction under Section 11(3) of the Act.

5. On the question as to whether the tenant is entitled to an immunity from an order of eviction for a period of five years, in the light of the law laid down by the Apex Court in Mohammad Ahmad [(2011) 7 SCC 755], the Appellate Authority, relying on the judgment of a Division Bench of this Court in Subair and others v. Cp. Kunhami @ Kunjhimariyam and others [2015 (5) KHC 260], held that the tenant is not entitled for the benefit of the decision of the Apex Court, since the fair rent in R.C.REV.NO.359 OF 2016 10 the instant case was fixed on 11.03.2005 in R.C.P.No.30 of 2005 and the petition for eviction, i.e., R.C.P.No.18 of 2014 was filed only on 13.03.2014. The reasoning of the Appellate Authority in paragraph 12 of the judgment reads thus;

"12. In the decision reported in Muhammed Ahammed v. Atmaram Chauhan [(2011) 7 SCC 755], the Hon'ble Supreme Court pleased to held that "if present and prevalent market rent assessed and fixed between the parties which is paid by the tenant then landlord was not be entitled to bring any action for his eviction against the such tenant atleast for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises".

Learned Munsiff find from the evidence of PW1 and Ext.A2 order that the rent of the petition schedule room is fixed by the court within a period of 5 years from the date of filing of this R.C.P. that is 13.03.2014. Hence, rejected the claim of bonafide need. Ext.A2 is the common judgment in R.C.A.Nos.148 of 2010, 149 of 2010, 150 of 2010, 151 of 2010, 15 of 2011 and 17 of 2011 of Additional District Judge, Vadakara dated 30.09.2011. R.C.A.No.17 of 2011 is arisen from R.C.P.No.15 of 2011. In Ext.A2 at page No.18, Rent R.C.REV.NO.359 OF 2016 11 Control Appellate Authority clearly stated that the fair rent fixed in R.C.P.No.15 of 2011 shall be to that effect from the date of the petition that is 11.03.2005. This R.C.P. is filed on 13.03.2014 that is about 9 years after date of fixation of fair rent. In a similar case the Hon'ble High Court in 2015 (4) KLT SN 165 Subair v. Kunhami pleased to held that "in case where the petition for fixation of fair rent as filed in 2002 and finally the judgment in appeal was delivered in 2012, the period of five years would start from 2002, the date of fixation of for rent and petition for eviction instituted in 2011 is maintainable". The above decision is squirrelly applicable considerable the facts of this case. In this case the fair rent was fixed on 11.03.2005 and the petition for eviction was filed on 13.03.2014. Hence, guide line for the immunity from eviction given in 2011 KHC 4505 is not applicable considering the facts and circumstances of this case is concerned. Therefore, I inclined to interfere the finding of the learned Rent Controller/Munsiff on point No.3 and hereby set aside and appellant is entitled to get eviction under Section 11(3) of the Act. These points are answered in favour of the appellant accordingly."

6. On 24.11.2016, when this Rent Control Revision came up for admission, this Court admitted the matter on R.C.REV.NO.359 OF 2016 12 file and issued noticed to the respondents. In I.A.No.2770 of 2016, this Court granted an interim stay for a period of two months. The said interim order was extended until further orders on 06.12.2018.

7. Heard the learned counsel for the petitioner- tenant and also the learned counsel for the respondents- landlords.

8. The issued that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Appellate Authority under Section 11(3) of the Act, invoking the revisional jurisdiction of this Court under Section 20 of the Act.

9. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to R.C.REV.NO.359 OF 2016 13 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 on such trade or business.

10. The bona fide need projected in the Rent Control Petition is that of the 5 th respondent to start to churidhar R.C.REV.NO.359 OF 2016 14 ready-made business and stitching unit. The need projected in the Rent Control Petition was substantiated by the oral testimony of PW1. In the absence of an appeal filed by the tenant, the finding of the Rent Control Court on the ground of eviction under Section 11(3) of the Act has attained finality.

11. Now, the issue that arises for consideration in this Rent Control Revision is as to the applicability of guidelines laid down by the Apex Court in decision in Mohammad Ahmad v. Atma Ram Chauhan [(2011) 7 SCC 755].

12. In Subair and others v. C.P. Kunhami @ Kunjhimariyam and others [2015 (5) KHC 260], a Division Bench of this Court has held that the period of five years fixed in Mohammad Ahmad and another v. Atma Ram Chauhan and others [2011 (7) SCC 755], would start from the date of fixation of fair rent, i.e., the date of filing of the Rent Control Petition for fixation of fair rent under Section 5 of the Act and not from the date of the R.C.REV.NO.359 OF 2016 15 order of the Rent Control Court or the judgment of the Appellate Authority fixing fair rent. In the instant case fair rent was fixed on 11.03.2005 in R.C.P.No.30 of 2005 and the petition for eviction, i.e., R.C.P.No.18 of 2014, was filed only on 13.03.2014.

13. In view of the law laid down by the Division Bench of this Court in Subair [2015 (5) KHC 260], the conclusion of the Appellate Authority in the impugned judgment for ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal and it cannot also be held that while passing such an order, the Appellate Authority has committed manifest error.

14. 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 R.C.REV.NO.359 OF 2016 16 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.

15. 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 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 R.C.REV.NO.359 OF 2016 17 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.

16. 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 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 R.C.REV.NO.359 OF 2016 18 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.

17. 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 R.C.REV.NO.359 OF 2016 19 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.

18. 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 R.C.REV.NO.359 OF 2016 20 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.

19. 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.

20. Viewed in the light of the law laid down in the R.C.REV.NO.359 OF 2016 21 decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Appellate Authority under Section 11(3) of the Act.

21. The learned counsel for the petitioner-tenant would submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenants may be given at least six months time to give vacant possession of the petition schedule shop room.

22. On the above request made by the learned counsel for the tenant, the learned counsel for the respondents-landlords would submit that a reasonable period for surrendering the vacant possession of the petition schedule shop room can be granted, on condition that the tenant shall clear the entire dues towards arrears of rent R.C.REV.NO.359 OF 2016 22 and continue to pay the monthly rent for the remaining period, without any default.

23. The learned counsel for the tenant would submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he give vacant possession of the petition schedule shop room to the landlords.

In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however by granting six months time to the petitioner-tenant to surrender vacant possession of the petition schedule shop room to the respondents-landlords, considering the situation prevailing in the country on account of COVID-19 pandemic, 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 R.C.REV.NO.359 OF 2016 23 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 room to the petitioners-

landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further he shall 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;

(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 respondents-

tenants 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 petitioners-landlords will R.C.REV.NO.359 OF 2016 24 be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE MIN

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