Narayanan S vs T.V.Seethalakshmi on 3 June, 2022

[Cites 29, Cited by 0]

Kerala High Court

Narayanan S vs T.V.Seethalakshmi on 3 June, 2022

The petitioner is the respondent-tenant in R.C.P.No.21 of 2018 on the file of the Rent Control Court (Principal Munsiff), Palakkad, a petition filed by respondents 1 to 4 herein- landlords, seeking eviction of the tenant from the petition schedule shop room, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The building originally belonged to late T.V.Krishna Iyer, the father of respondents 1 to 4. 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 landlords to discontinue tobacco business conducted by respondents 3 and 4 herein (which was originally conducted by their father) and to start a restaurant in the building owned by the landlords, utilising the petition schedule shop room with Door No.31/665 as well as the adjacent shop rooms with Door Nos.31/664 and 31/666.

2. In R.C.P.No.21 of 2018, the tenant entered appearance and filed counter opposing the order of eviction sought for. Before the Rent Control Court, on the side of the -4- R.C.Rev.No.11 of 2021 landlords, the 3rd respondent herein was examined as PW1 and Exts.A1 to A6 were marked. On the side of the tenant, Exts.B1 to B5 were marked and the tenant was examined as DW1. The commission report and rough sketch submitted by the Advocate Commissioner were marked as Exts.C1 and C1(a) respectively. 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; that the provisions under the first proviso to Section 11(3) of the Act has no application to the facts of the case; and that the tenant is not entitled to protection under the second proviso to Section 11(3) of the Act. Therefore, the Rent Control ordered eviction under Section 11(3) of the Act. The order of eviction sought for under Section 11(2)(b) of the Act was declined. By the order dated 12.06.2020 in R.C.P.No.21 of 2018, the tenant was directed to immediately handover vacant possession of the petition schedule shop room to the landlords. If the tenant fails to comply with the said order, the landlords were entitled to get vacant possession of the petition schedule shop room, -5- R.C.Rev.No.11 of 2021 by evicting the tenant through the process of court. The landlords were also found entitled to realise the costs of the proceedings from the tenant and his assets.

3. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.13 of 2020 before the Rent Control Appellate Authority (Additional District Judge-V), Palakkad. That appeal ended in dismissal by the judgment dated 30.11.2020, thereby confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act. Challenging the order dated 12.06.2020 of the Rent Control Court in R.C.P.No.21 of 2018 and the judgment dated 30.11.2020 of the Rent Control Appellate Authority in R.C.A.No.13 of 2020, the tenant is before this Court in this Rent Control Revision, invoking the revisional jurisdiction under Section 20 of the Act.

4. On 13.01.2021, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. In I.A.No.1 of 2021, this Court granted an interim order staying the execution of the order of eviction dated 12.06.2020 of the Rent Control Court in R.C.P.No.21 of 2018 and also the -6- R.C.Rev.No.11 of 2021 judgment dated 30.11.2020 of the Rent Control Appellate Authority in R.C.A.No.13 of 2020, for a period of three months. The said interim order, which was extended from time to time, is still in force.

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

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

7. The learned counsel for the petitioner-tenant would confine the challenge in this Rent Control Revision against the concurrent finding of the Rent Control Court and also the Appellate Authority 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. Therefore, this Court is not called upon to consider the legality or otherwise of the concurrent finding of the authorities below on the first and second provisos to Section 11(3) of the Act.

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8. The learned counsel for the petitioner-tenant would contend that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is only a ruse to evict the tenant from the petition schedule shop room, stating one reason or other. The pleadings and evidence on record were not properly appreciated by the Rent Control Court as well as the Rent Control Appellate Authority. The learned counsel for the petitioner-tenant has also raised a contention that the need projected in the Rent Control Petition for seeking an order of eviction of the petition schedule shop room falls under Section 11(8) of the Act, which deals with order of eviction on the ground of additional accommodation, and as such the authorities below ought to have held that a petition under Section 11(3) of the Act is not legally maintainable.

9. Per contra, the learned counsel for the respondents-landlords would contend that the findings of the Rent Control Court and the Appellate Authority 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 is neither perverse nor patently illegal, warranting an interference in -8- R.C.Rev.No.11 of 2021 exercise of the revisional jurisdiction of this Court under Section 20 of the Act. The learned counsel would point out that, during cross examination, the tenant as DW1 admitted that he has no objection in the landlords starting a restaurant business in the building and that, the evidence of PW1 satisfactorily proved that the need expressed by the landlords is not a ruse to evict the tenant from the petition schedule shop room.

10. 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 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 -9- R.C.Rev.No.11 of 2021 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.

11. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the -10- R.C.Rev.No.11 of 2021 premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in Deena Nath v. Pooran Lal [(2001) 5 SCC 705] bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.

12. In Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815], a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in Kizhakkayil Suhara v. Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19] that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has -11- R.C.Rev.No.11 of 2021 considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord.

13. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a -12- R.C.Rev.No.11 of 2021 genuine one, in the absence of any materials to the contra.

14. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164], another decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the decision of the Apex Court in Deena Nath v. Pooran Lal [(2001) 5 SCC 705], wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in Shiv Sarup Gupta [(1999) 6 SCC 222], wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In Abdul Salam v. Sebastian [2013 (4) KLT 592], a Division Bench of this Court held that, when the landlord has -13- R.C.Rev.No.11 of 2021 clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act.

15. In Gireeshbabu T.P. v. Jameela and others [2021 (5) KHC SN 30], a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, held that, in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting -14- R.C.Rev.No.11 of 2021 the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act but, of course, subject to the first and second provisoes to Section 11(3).

16. During the course of arguments, the learned counsel for the petitioner-tenant has made available for the perusal of this Court a rough sketch of the petition schedule shop room and the adjacent shop rooms in occupation of the landlords. The learned counsel for the respondents-landlords has made available for the perusal of this Court, a rough sketch prepared by the learned Advocate Commissioner, which was marked as Ext.C1(a) before the Rent Control Court. The said rough sketch, which was marked as Ext.C1(a) is re- produced hereunder;

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17. The pleadings and evidence on record would show that the petition schedule shop room and the adjacent shop rooms were originally owned by Sri.T.V.Krishna Iyer, the predecessor-in-interest of the landlords, who was conducting tobacco business. After his death, respondents 3 and 4 continued that business for sometime and thereafter, they found it not profitable. Therefore, the landlords decided to start restaurant business in the four shop rooms under their ownership and possession, including shop rooms with Door Nos.31/664 and 31/666, which are facing Big Bazar Main Road, on the western and eastern side of the petition schedule shop room with Door No.31/665.

18. The learned counsel for the petitioner-tenant would -16- R.C.Rev.No.11 of 2021 contend that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act can be satisfied by the landlords by utilising the four rooms already in their vacant possession, which is having a total area of 4270 sq.ft. Therefore, the need projected in the Rent Control Petition is only a ruse to evict the tenant from the petition schedule shop room. The learned counsel would also raise a contention that, the landlords are not having any prior experience in conducting restaurant business.

19. In Sait Nagee Purushotham and Co. Ltd. v.

Vimalabai Prabhulal [2005 (8) SCC 252] the Apex Court held that, it is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.

20. The landlord is the best judge of his need or requirement and the manner in which he should conduct his affairs. It is not for the tenant to dictate terms as to which premises will be suitable or not for the proposed business of the landlord, or to advice the landlord what he should do and what he should not do. Neither the tenant nor the court can -17- R.C.Rev.No.11 of 2021 thrust upon its opinion or wisdom on the landlord and dictate terms in this regard.

21. In George T.I. v. K.L. Stanley [2013 (4) KHC 543] a Division Bench of this Court, following a line of decisions, held that, prior experience is not a pre-requisite for a person to start a business. In the said decision, it was held as follows;

"The last contention is want of previous experience. Going by the decisions of this Court and the Apex Court, previous experience cannot be insisted to test the bona fide need of the landlord, as it is not a requirement for anybody to conduct a business that he should have previous experience." (underline supplied)

22. As evident from Ext.C1(a) rough sketch prepared by the Advocate Commissioner, the landlords are in ownership and possession of four shop rooms in the building. Out of the four shop rooms, shop rooms with Door Nos.31/664 and 31/666, which are facing Big Bazar Main Road, are on the western and eastern side of the petition schedule shop room with Door No.31/665, which is in the occupation of the petitioner-tenant. The stand taken by the tenant before the authorities below and also before this Court is that the need of -18- R.C.Rev.No.11 of 2021 the landlords for starting a restaurant in the building can be satisfied with the two shop rooms with Big Bazar Main Road frontage, which are on the western and eastern side of the petition schedule shop room, and also the two rooms in their possession, which are facing towards backyard. The authorities below, on an appreciation of the pleadings and evidence on record, concurrently found that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act, for starting a restaurant in the building in question, is bona fide. When the need projected under Section 11(3) of the Act found bona fide, the petitioner-tenant cannot dictate terms to the landlord or advise them what manner they should use that building for their projected need to start a restaurant, after discontinuing the tobacco business conducted by two among the landlords. Therefore, we find absolutely no merit in the contention of the petitioner-tenant that the eviction of the tenant is not required for satisfying the need of the landlords for starting a restaurant in the building.

23. After considering the pleadings and evidence on -19- R.C.Rev.No.11 of 2021 record, the authorities below concurrently found 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 said finding of the authorities below is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

24. The learned counsel for the petitioner-tenant raised a contention that the need projected in the Rent Control Petition for seeking an order of eviction of the petition schedule shop room falls under Section 11(8) of the Act, which deals with order of eviction on the ground of additional accommodation, and as such the authorities below ought to have held that a petition under Section 11(3) of the Act is not legally maintainable.

25. As per Section 11(8), a landlord who is occupying only a part of a building may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the -20- R.C.Rev.No.11 of 2021 landlord in possession thereof, if he requires additional accommodation for his personal use. Section 11(10) of the Act provides that, claim under sub-section (3), (4), (7) or (8) should be bona fide. As per Section 11(10), the Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-section (3), (4), (7) or sub-section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent control Court, and if the Court is not so satisfied, it shall make an order rejecting the application. As per the first proviso to Section 11(10), in the case of an application made under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. As per the second proviso to Section 11(10), the Rent control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.

26. In Hassan Koya K. v. James George and others [2019 (4) KLJ 74] a Division Bench of this Court held that, -21- R.C.Rev.No.11 of 2021 under the provisions of the Kerala Buildings (Lease and Rent Control) Act, the distinction maintained by the legislature between Section 11(3) and Section 11(8) is clear. The test to be applied in a proceeding for eviction under Section 11(8) or Section 11(3), as the case may be, for distinguishing these two grounds of eviction is to ascertain whether landlord and tenant are stated to be occupying different portions of the same building owned by the landlord or whether the tenant is stated to be occupying the whole building of the landlord. If the landlord is in occupation of a portion of his building and asks for eviction of the portion let to his tenant urging need for additional accommodation for personal use, it would then be a case of eviction falling under Section 11(8). On the other hand, if the tenant is put in occupation of a building owned by the landlord who has no part of the structure in his custody, it is then a case brought for eviction under Section 11(3) of the Act alone, provided other conditions for eviction are also present. Legally, the grounds of eviction under Section 11(3) and Section 11(8) are fundamentally different and considered therefore as mutually exclusive. The distinction emerging between these two grounds has been discussed in S.R. Sabu -22- R.C.Rev.No.11 of 2021 v. T.K. Vasudevan [(2001) 8 SCC 110] and Indian Saree House and others v. Radhalakshmy and others [2006 (3) KLT 129].

27. In Hassan Koya K. [2019 (4) KLJ 74] the Division Bench noticed that, the bona fide claim understood in terms of Section 11(10) of the Act is no way different from the expression 'bona fide' used in Section 11(3) of the Act. Bona fide need or requirement must be the outcome of the natural, sincere, real and honest desire of the landlord rather than a mere wish or desire. This principle of law has long been settled as is discernible from Mattulal v. Radhe Lal [(1974) 2 SCC 365], Chandukutty v. George [1977 KLT 607] and Adil Jamshed Frenchman (Dead) By Lrs. v. Sardar Dastur Schools Trust and others [(2005) 2 SCC 476].

28. In Hassan Koya K. the Division Bench held that, it is mandatory that a definite finding on the issue of comparative hardship between the parties must be entered in a proceeding for eviction under Section 11(8) of the Act. If the Rent Control authorities find on evidence that hardship to which the tenant would be exposed in the case of eviction will be higher than that of the landlord in the case of refusal of -23- R.C.Rev.No.11 of 2021 eviction, prayer for eviction could only be declined. If, on the other hand, the evidence fortifies a finding that landlord would suffer greater than the tenant in case of refusal of eviction, an order of eviction under Section 11(8) in such a case would certainly be justified.

29. In Hassan Koya K. the Division Bench held that, Section 11(3) of the Act has laid down in very clear and specific terms certain conditions to be satisfied by the landlord as well as tenant in prosecution or defence of eviction proceeding, as the case may be, before the Rent Control authorities. A landlord not being in possession of any building of his own in the locality sufficient to satisfy his proved bona fide need, cannot nonetheless recover tenanted premises on the ground of Section 11(3), if the tenant mainly depends on the income derived from his business and further has no alternative suitable accommodation available in the locality for shifting his business. Strictly speaking, none of the conditions appearing in Section 11(3) is relevant in an eviction petition brought under Section 11(8) seeking additional accommodation. Section 11(8) is absolutely silent as to the relevant considerations on which comparative hardship in -24- R.C.Rev.No.11 of 2021 issue between parties could be decided. Nonetheless the preponderance of judicial precedents is in favour of the view that availability of suitable and alternative premises with both the landlord and tenant to satisfy their needs in a proceeding for eviction under Section 11(8) is one of the matters relevant to the decision on the issue of comparative hardship between the parties. Equally relevant is the question as to whether parties mainly depend for their livelihood on the income derived from the business or trade in case tenanted premises have been let out for conducting business.

30. In Hassan Koya K. the Division Bench found that, the considerations relevant for decision on the issue of comparative hardship in terms of Section 11(10) of the Act are unrestricted and wider in scope than the conditions specified in Section 11(3). But only thing that needs to be ensured by the court is that those considerations must be materially relevant and essential to the just decision of the issue. Discretion of the court in this respect should be exercised carefully guided by sound judicial principles and also in conformity with principles of justice, equity and good conscience. Burden of proving such relevant facts within the -25- R.C.Rev.No.11 of 2021 scope of Section 11(10) is equal to both the parties unlike the burden of proof cast by Section 11(3) of the Act. The landlord seeking eviction under Section 11(8) has not only to prove the bona fides of his claim for additional accommodation but also the comparable degree of hardship which he would suffer than the tenant in the case of refusal of eviction. Burden thereafter shifts to the tenant who would then be liable to show that hardship on him will exceed than that of the landlord in case he fails to secure a decision favourable to his continuance.

31. In the instant case, 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 landlords to discontinue tobacco business conducted by respondents 3 and 4 herein (which was originally conducted by their father) and to start a restaurant in the building owned by the landlords, utilising the petition schedule shop room with Door No.31/665 as well as the adjacent shop rooms with Door Nos.31/664 and 31/666. Therefore, the Rent Control Petition is not one filed by the landlords seeking eviction of the tenant from the petition schedule shop room on the ground that respondents 3 and 4 herein, who are conducting tobacco business in shop rooms -26- R.C.Rev.No.11 of 2021 with Door Nos.31/664 and 31/666 require additional accommodation for conducting the said business. On the other hand, the landlords require the aforesaid two shop rooms, the two rooms on the rear side facing towards backyard and also the petition schedule shop room with Door No.31/665 for starting a restaurant. The said need projected in the Rent Control Petition falls within the scope of Section 11(3) of the Act and it will not fall within the scope of Section 11(8) of the Act, which deals with eviction on the ground of additional accommodation. The comparative hardship as provided under the first proviso to Section 11(10) of the Act has no application, in a Rent Control Petition filed for seeking eviction under Section 11(3) of the Act. Therefore, we find absolutely no merit in the contention of the petitioner-tenant that R.C.P.No.21 of 2018 is not maintainable under Section 11(3) of the Act and the landlords ought to have filed eviction petition under Section 11(8).

32. 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 -27- R.C.Rev.No.11 of 2021 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.

33. 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 -28- R.C.Rev.No.11 of 2021 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.

34. 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 by the courts below. But where a finding arrived at by the courts below is based on -29- R.C.Rev.No.11 of 2021 no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.

35. 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 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 -30- R.C.Rev.No.11 of 2021 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 coming to the conclusion that the relationship of landlord-tenant did not exist.

36. 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, regularity and propriety of the order impugned before it.

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37. 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.

38. 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 -32- R.C.Rev.No.11 of 2021 are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence.

39. 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.

40. 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 Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act that the need projected in the Rent Control Revision is bona fide is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. -33- R.C.Rev.No.11 of 2021 Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act.

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

42. 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 and continue to pay the monthly rent for the remaining period, without any default.

43. 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 gives vacant -34- R.C.Rev.No.11 of 2021 possession of the petition schedule shop room to the landlord.

44. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; 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 may be, 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 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;

-35- R.C.Rev.No.11 of 2021

(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 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 petitioners-landlords will be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE AV/4/6

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