Doraswami Chettiar v. Nhandammadan Kunhiraman — 1968 DIGILAW 296 (KER)

JUDGMENT V. Balakrishna Eradi, J. 1. The petitioner is the owner of a building in Payyannur amsom. The ground floor portion of the said building consisting of three shop rooms and their anterooms had been let out by the petitioner to the 1st respondent under a kychit dated 29.11.1962 executed by the latter in the petitioner's favour. The petitioner filed R.C.O.P. No. 3 of 1964 before the Rent Controller, Payyannur under S.11(2), (3) and (8) of the Kerala Buildings (Lease and Rent Control) Act, 1959, (Act 16 of 1959) for eviction of the 1st respondent from the building on the grounds of non payment of arrears of rent and bona fide need for the petitioner's own occupation. 2. The case of the petitioner was that the upstairs portion of the building in which he was residing was totally inadequate for the needs of his family, which consisted of 15 members at the time of the petitioner's making the application, that the petitioner was also unable to climb up the stairs due to old age and illness and that therefore he bona fide needed the rooms on the ground floor for his own occupation and for that of the members of his family depending on him. It was also pleaded that the tenant had kept the rent in arrears from the 1st Kanni, 1138 onwards. 3. The 1st respondent contended that though he had executed a kychit in favour of the petitioner on 29-11-1952 in respect of the shop rooms, in question, he had been in possession of the said rooms as a tenant under the petitioner even prior thereto and that before the date of the kychit he had already made over the rooms to his two sons Madhavan and Balakrishnan who were conducting their trade therein. According to the 1st respondent, the said two persons are the real tenants of the building and the petition was not maintainable against him in as much as he was not in actual possession of the building. He also denied the case of bona fide need put forward by the landlord. 4. The Rent Controller by his order evidenced by Ext. He also denied the case of bona fide need put forward by the landlord. 4. The Rent Controller by his order evidenced by Ext. P1 dismissed the petition holding that even though originally the letting of one shop room was in favour of the 1st respondent, lie had made over the said room to his son Madhavan, and that Madhavan and Balakrishnan being in actual possession of the shop rooms no order for eviction could be passed against the 1st respondent. The plea put forward by the petitioner that he needed the building bona fide for his own occupation was also found against by the Rent Controller. 5. The petitioner preferred an appeal before the Subordinate Judge of Tellicherry. The learned Subordinate Judge, after a detailed consideration of the entire evidence adduced in the case, came to the conclusion that the case set up by the 1st respondent that notwithstanding the kychit evidencing the lease having been executed by him, the building in question was in the possession not of himself but of his sons and that they were the real tenants could not be accepted as true. The learned Subordinate Judge held that if the alleged transfer of exclusive possession of the shop by the 1st respondent to his sons long prior to 1952 were true it was absolutely unlikely that the kychit Ext. A1 would have been executed on 29-11-1952 by the 1st respondent. The circumstance that neither of the sons who were said to be the persons in actual possession of the shops had come forward to give evidence in support of the 1st respondent's version and also that not one out of the several rent receipts stated to have been obtained by them directly from the petitioner in respect of their occupation of the shop rooms had been produced in the case, was strongly relied on by the learned Subordinate Judge. The learned Subordinate Judge was of the view that the Rent Controller Court had erred in basing its finding almost entirely on the entries contained in certain account books of Madhavan and Balakrishnan which were produced by the respondent for the purpose of proving payment of rent by them. The learned Subordinate Judge was of the view that the Rent Controller Court had erred in basing its finding almost entirely on the entries contained in certain account books of Madhavan and Balakrishnan which were produced by the respondent for the purpose of proving payment of rent by them. On the question of bona fide need also the learned Subordinate Judge differed from the finding of the Rent Controller and held that the evidence on record clearly established that the appellant was in dire need of the rooms in question in order to meet the requirements of additional accommodation for himself and his family. Accordingly the appeal was allowed and an order for eviction was 'passed as prayed for by the petitioner under S.11(8) of Kerala Act 2 of 1965 which had by that time replaced Act 16 of 1959. 6. The 1st respondent took up the matter in revision before the District Court, Tellicherry. The learned District Judge by his order Ext. P-4 dated 14.10.1966 allowed the revision petition set aside the order of the Subordinate Judge and restored that of the Rent Controller dismissing the petition for eviction. The petitioner landlord has thereupon come up to this court with this original petition seeking to quash Ext. P-4. 7. Although this petition was originally filed under Art.226 and 227 of the Constitution the matter will be dealt with only under Art.227 inasmuch as the decision under challenge being that of a civil court - see Ouseph Vareed v Mary. 1968 KLT 583 (FB) - is not liable to be called in question under Art.226 of the Constitution - see Nalla Koya v Administrator, Union Territories of Laccadives 1968 KLT 60 . 8. The main contention urged before me by the counsel for the petitioner is that the learned District Judge in proceeding to reappreciate the evidence and record independent findings of his own on the questions in controversy between the parties as if the matter were before him as an appellate court, has exceeded the legitimate bounds of revisional jurisdiction conferred by S.20 of the Kerala Buildings (Lease and Rent Control) Act. It is also urged that, on the merits, the findings entered by the learned District Judge are wholly opposed to and unsupported by the evidence in the case and are therefore vitiated by a manifest error of law. It is also urged that, on the merits, the findings entered by the learned District Judge are wholly opposed to and unsupported by the evidence in the case and are therefore vitiated by a manifest error of law. Finally, it is contended that the District Judge has acted completely without jurisdiction in applying to the case the proviso to S.11(8) of the Act and holding that the landlord is not in any event entitled to an order for eviction since the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord, when no such case had been pleaded or urged by the 1st respondent, at any prior stage either before the rent tribunal or before the appellate authority. 9. Having given the matter my very anxious consideration I have come to the conclusion that the order of the District Judge cannot be sustained for more than one reason. 10. There is considerable force in the contention put forward by the petitioner that the District Judge has practically treated the proceeding before him as a regular appeal and approached the consideration of the case in that perspective. It is true that the powers of revision under S.20 of the Kerala Buildings (Lease and Rent Control) Act are wider than those conferred on the High Court under S.115 of the Civil Procedure Code and that the words 'legality, regularity, or propriety of the order" are wide enough to cover both questions of law and fact - see Perumal Pillai v Venkiteswara Iyer, 1965 KLT 476 . But there is nonetheless an essential distinction between an appeal and a revision, a distinction based on difference implicit in the two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limits prescribed. But in the case of a revision, even where the revisional authority is empowered to examine the propriety of the order impugned before it, its jurisdiction does not extend to a complete reopening and rehearing of the case and reviewing the entire evidence with a view to substitute the findings arrived at by it in the place of those recorded by the subordinate tribunal. The legislature while enacting the Kerala Buildings (Lease & Rent Control) Act, 1965, has thought fit to confer a right of appeal by S.18 of the Act only at the earlier stage when the order of the Rent Controller is sought to be questioned and to provide for only a discretionary remedy of revision at the later stage when the challenge is raised against the appellate authority's order. When it thus introduced the familiar concepts of appeal and revision at the two different stages, it is, in my view, reasonable to assume that the well known distinction between these two jurisdictions was clearly in the contemplation of the legislature. It would not, therefore, be right to regard the appellate and revisional remedies provided for under S.18 and S.20 as coextensive. The difference, according to me, consists in this namely, that the revisional authority, while endowed no doubt with the power to examine the propriety of the order passed by the appellate authority, is not to treat the proceeding before it as in appeal and its jurisdiction to interfere with the findings of fact is limited to cases where such findings can be regarded as 'improper'. It is not in every instance where the revisional authority is inclined to arrive at a different conclusion on an appreciation of the evidence available on record that the finding recorded by the Subordinate Tribunal can be said to be improper. I am of the view that in order that a finding can legitimately be characterised, as 'improper' it must be so wholly unreasonable or perverse that no reasonable tribunal or authority could have come to such a conclusion on the evidence on record, or as in the case which came up for decision before the Supreme Court in Neta Ram v. Jiwan Lal, AIR 1963 SC 499 , the subordinate tribunal should have recorded us finding without adverting to a single piece of evidence. 11. The District Judge exercising revisional jurisdiction under S.20 of the Kerala Buildings (Lease and Rent Control) Act will not therefore be justified in interfering with a finding of fact recorded by the appellate authority, merely because he is of the view that on a correct appreciation of the evidence a different conclusion should have been arrived at by the appellate authority. 1 am supported in this view by the observations in an unreported judgment of a Division Bench of this court consisting of M. S. Menon, C. J. and Madhavan Nair, J. in O. P. No. 2011 of 1963 where the scope of the revisional power under S.20 of the Kerala Buildings (Lease and Rent Control) Act came in for examination. The Division Bench held: "We must observe that the revisional tribunal, however, wide its jurisdiction may be, ought not to interfere with findings of fact arrived at on an appreciation of the evidence on record by the tribunal of fact, particularly on mere doubts. We find that the interference made by the Additional District Judge with the order of the Appellate authority was beyond the limits of his power under S.20 of the Kerala Buildings (Lease and Rent Control) Act, XVI of 1959, and that his order, Ext. P-5, has therefore to be quashed." 12. Applying the aforesaid principles to the present case I have no hesitation to hold that the interference made by the learned District Judge with the findings of fact recorded by the appellate authority was totally unjustified. What the District Judge has done is to reassess the entire evidence on his own and to set aside the findings of the appellate authority merely because on such review or appreciation of the evidence made by himself the District Judge was inclined to come to certain conclusions of fact different from those arrived at by the appellate authority. 13. It is not as if in this case the revisional authority had been satisfied that the findings entered by the appellate authority were unreasonable or perverse or that they had been arrived at without adverting to any material piece of evidence. On a persual of the order passed by the revisional authority it is seen that the main ground on which it has reversed the findings entered by the appellate authority is that in its view the appellate authority was in error in not attaching any weight to the entries contained in certain books of account produced and relied on by the 1st respondent. 14. Counsel appearing on both sides have taken me through the relevant evidence. 14. Counsel appearing on both sides have taken me through the relevant evidence. The aforementioned books of account, though produced by the 1st respondent, were not books containing his own accounts or maintained by himself but were the account books of his sons Madhavan and Balakrishnan. Neither of these persons had been examined in the case and RWI through whom they were sought to be proved was unable to give any credible or useful evidence to connect the entries in the said books with any payments of rent by those persons in respect of the building in question. There is also the very significant fact that the kychit Ext. A1 evidencing the entrustment of the building was executed by the Ist respondent long subsequent to the period covered by many of the concerned entries in the aforesaid books of account. It was in these circumstances that the Subordinate Judge refused to place any reliance on the entries contained in the aforesaid books of account. It could not certainly be said that the view so taken by the appellate authority was in any sense unreasonable or perverse. No valid grounds whatever have been stated by the District Judge for coming to a different conclusion regarding the credibility of these books of account and some of the very relevant aspects relied on by the appellate authority have not even been adverted to by the District Judge before he proceeded to reverse the finding recorded by the appellate authority. On a careful consideration of the matter I am clearly of the opinion that on the facts and circumstances of this case the District Judge has exceeded his revisional jurisdiction in interfering with the findings of fact recorded by the appellate authority both on the question as to whether the tenancy right is vested on the Ist respondent or in his sobs as well as on the question of bona fide need. 15. It was by invoking the proviso to S.11(8) of the Act that the District Judge has held that the landlord is not entitled to an order of eviction even if he succeeds showing that the Ist respondent is the tenant of the building and that the building is bona fide needed for his own occupation. 15. It was by invoking the proviso to S.11(8) of the Act that the District Judge has held that the landlord is not entitled to an order of eviction even if he succeeds showing that the Ist respondent is the tenant of the building and that the building is bona fide needed for his own occupation. There was no pleading whatever by the tenant based on the proviso to S.11(8) and no attempt had been made by him to adduce any evidence for showing that the hardship which may be caused to him by granting eviction will outweigh the advantage to the landlord. The burden of proving the necessary set of facts on which alone the aforesaid proviso will have application to the case was clearly on the tenant. In the absence of any pleading or proof the District Judge has acted completely without jurisdiction in invoking the said proviso for denying to the landlord relief under S.11(3) of the Act. 16. In the result, the original petition is allowed. The order Ext. P4 passed by the District Judge is set aside and that the appellate authority restored. I make no direction regarding costs.