VARKEY v. RAMAN PILLAI — 1980 DIGILAW 282 (KER)

Judgment :- 1. The revision petitioners are respondents 2 and 3 in R C. R. P. No. 13 of 1978 on the file of the District Court, Ernakulam. The first respondent filed R. C. P. No 43 of 1963 before the Rent Control Court, Perumbavoor, for eviction of the petitioners and the second respondent herein from a building situated in the Kalady Town under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, on the ground that he required the building for his own occupation, that the building required reconstruction, and also that the tenant had sub-let the building 2. The building was originally owned by the father of the first respondent, and it was leased to the second respondent and the father of the first petitioner herein in the year 1118 M.E. A lease deed, Ext. P1 was, subsequently, executed in the year 1121 M. E. The petitioners are conducting a grocery shop in the building While the tenants were in possession the first respondent-landlord filed 0 S. No. 486 of 1961 before the Munsiff's Court, Perumbavoor, for eviction of the building on the ground that the building would fetch more rent and also on the ground that he required the building for his own use. While the suit was pending the Kerala Buildings (Lease and Rent Control) Act was extended to the Kalady Town. The suit was, therefore, withdrawn and R.C.P. No 43 of 1963 was filed, for eviction of the petitioners herein The petitioners filed objections opposing the claim for eviction on the ground of bona fide need and also contentending that they were depending, for their livelihood, on the income derived from the trade carried on in the building, and there was no other suitable building available in the locality 3. The Rent Control Court held, that the landlord failed to establish a case of bona fide need and that the other grounds for eviction alleged were also not substantiated. The petition was dismissed. Against the above decision the first respondent filed an appeal, R.C.A No. 29 of 1971, before the Appellate Authority. The Appellate Authority dismissed the appeal as per its judgment dated 15-7-1972. Against that decision the first respondent filed R.C.R.P. No. 41 of 1973, before the District Court. The petition was dismissed. Against the above decision the first respondent filed an appeal, R.C.A No. 29 of 1971, before the Appellate Authority. The Appellate Authority dismissed the appeal as per its judgment dated 15-7-1972. Against that decision the first respondent filed R.C.R.P. No. 41 of 1973, before the District Court. The District Court held, that the claim of the landlord for eviction on the ground that he required the building for his own occupation was bonafide. The Court, however, observed, that the appellate authority had not considered the application of the second proviso to S.11(3) of the Act. The Court, therefore, remanded the case to the Appellate Authority. Against that order C.R.P. No. 793 of 1976 was filed before this Court. This Court confirmed the order of the District Court regarding the finding on the question of bona fide need and remanded the case to the Appellate Authority for consideration of the question of the application of the second proviso to S.11(3) of the Act 4. The Appellate Authority held, that the tenants were depending for their livelihood solely on the income derived from the business conducted in the building, that they were not in possession of any other building, and that the burden of proof regarding the availability of another building was on the tenants. The Appellate Authority further held, that the point of time in respect of which the availability should be considered is the date of the filing of the petition for eviction. It was further held that on the date when the application for eviction was filed no other suitable building was available The appellate authority, therefore, held, that the first respondent was not entitled to recover possession of the building. The order, disallowing eviction, passed by the Rent Control Court was, accordingly, confirmed. 5. The first respondent filed R.C.R.P. No. 13 of 1978 before the District Court, Ernakulam against the above decision. The Third Additional District Judge. Ernakulam, concurred with the finding of the Appellate Authority, that the tenants were depending for their livelihood on the business conducted in the building and also that the burden was on the tenants to prove that no other building was available in the locality for conducting the trade. The Third Additional District Judge. Ernakulam, concurred with the finding of the Appellate Authority, that the tenants were depending for their livelihood on the business conducted in the building and also that the burden was on the tenants to prove that no other building was available in the locality for conducting the trade. But the Revisional Authority did not agree with the finding of the Appellate Authority that the point of time in respect of which the availability of other building's should be decided was the date of the filing of the petition. According to the revisional authority, even in cases where a building became available after the filing of the petition it is the duty of the tenants to avail of that opportunity and take the building on lease surrendering the disputed building. The learned Judge further held, that many buildings became vacant since 1961, that the building of one Padmanabha Menon became vacant after the filing of the petition and that the tenants could have taken that building on lease. According to the learned Judge, even assuming that Padmanabha Menon demanded exorbitant rent they could have taken the building on lease and applied tor fixation of fair rent thereafter. The Court, therefore, set aside the order of dismissal and allowed the eviction. The revision petitioners were directed to surrender the building within a period of three months from the date of the order. It is against this order that the revision petition is filed. 6. The finding of the Appellate Authority regarding the fact, that the petitioners are depending for their livelihood on the income derived from the trade conducted in the building, which has been confirmed by the revisional authority, is not challenged in these proceedings. Therefore, the only point to be considered is whether the finding of the revisional authority that there were other suitable buildings in the locality for the tenants to carry on their business is sustainable in law. 7. The contention put forward on behalf of the revision petitioners is that the learned Third Additional District Judge erred in interfering with the finding of the Appellate Authority, that there was no building available for the tenants. According to the petitioners, S.20 of the Act does not empower the District Judge to interfere with findings of fact entered by the Appellate Authority. According to the petitioners, S.20 of the Act does not empower the District Judge to interfere with findings of fact entered by the Appellate Authority. Under the said provision, the District Court is expected only to consider the legality regularity or propriety of the order of the Appellate Authority. The jurisdiction conferred does not empower the District Judge to set aside a finding of fact on the ground that on the evidence available a different conclusion could have been reached. An interference is called for only in cases where the finding entered by the Appellate Authority is illegal, irregular or improper. The revisional authority should salsify itself, that the finding entered by the appellate authority is based on no evidence at all or that the finding is so perverse that it is not sustainable in law. That is not the position in the present case. The mere fact that in the opinion of the appellate authority a different conclusion is possible is not a ground for interference in revision. It was also argued that the evidence in the case does not warrant a conclusion that either the building of Padmanabha Menon referred to in the order or any other suitable building was available, and, therefore, the conclusion to the contra arrived at by the revisional authority has only to be set aside. 8. On behalf of the petitioners reliance was placed on the decisions dealing with the scope and applicability of S.20 of the Kerala Buildings (Lease and Rent Control) Act. The Supreme Court had occasion to consider the scope of S.20 of the Act in Mathai v Subordinate Judge, Kottayam, 1969 KLT 348. The Supreme Court observed: "The words of S.20 however are much wider than those in S.115 of the Code of Civil Procedure, Under S.20(1) the District Court is empowered to call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and pass such order in reference thereto as it thinks fit. On the words of this section we cannot hold that a revision is limited to a mere question of jurisdiction. On the words of this section we cannot hold that a revision is limited to a mere question of jurisdiction. In our view the District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper." The scope of S.20 of the Act was considered by this Court in subsequent decisions. Reference may be made to Mandal Gopalan v. Rohini, 1977 KLT. 386. Khalid J , observed, that the expression "legality, regularity or propriety" is wider in its ambit than the jurisdictional ambit which S.115 of the Code of Civil Procedure contemplates. The learned Judge further added, that the revisional court under S.20 can in appropriate cases reappraise, re-evaluate or reassess the evidence to decide about the propriety of the order under challenge. This jurisdiction, however, should be restricted to the examination of the evidence, only to find out whether the conclusions arrived at by the courts below are perverse and unreasonable. S.20 does not permit the revisional court to substitute its conclusion when the conclusion arrived at by the appellate authority is reasonable. When two conclusions are possible, the revisional Court, whose jurisdiction cannot be equated with the appellate jurisdiction, should not substitute its conclusion for the conclusions arrived at by the Court of fact and evidence. After referring to the decision in Perumal Pillai v. Venkiteswara Iyer, 1965 KLT 476, the learned Judge said, that an order is illegal when it is passed opposed to an enactment and an order is irregular when it is opposed to rules of procedure. The District Judge will not be justified in interfering with a finding of fact merely because he is of the view that a different conclusion is possible. For a finding to be characterised as improper it must be so wholly unreasonable or perverse that ho reasonable tribunal or authority could have come to such a conclusion on the evidence on record, or the subordinate tribunal should have recorded its finding without adverting to a single piece of evidence. The section again came up. for interpretation in Kadeersha v. Venkitaswamy, 1978 KLT. 260, wherein another judge of this Court, Kochu Thomman J, following the decision in Doraswami Chettiar v. Handammaden Kunhiraman, 1969 KLJ 227, held, that the jurisdiction of the revising authority under S.20 is not unlimited. The section again came up. for interpretation in Kadeersha v. Venkitaswamy, 1978 KLT. 260, wherein another judge of this Court, Kochu Thomman J, following the decision in Doraswami Chettiar v. Handammaden Kunhiraman, 1969 KLJ 227, held, that the jurisdiction of the revising authority under S.20 is not unlimited. His jurisdiction to interfere with the finding of fact is limited to cases where the impugned order is perverse or arbitrary in the sense that on the basis of the evidence on record no reasonable tribunal would have come to such a decision, or the decision was rendered on the basis of irrelevant considerations or that it was unsupported by any evidence whatsoever. Similar opinion was expressed by Narayana Pillai J., in the case, 1979 KLT SN 23. The learned Judge observed, that the records are to be called for under S.20 not for considering whether a more reasonable conclusion than that arrived at by the inferior authority is possible but only for the limited purpose of satisfaction about the legality, regularity and propriety of the order. 9. It was argued on behalf of the petitioners in this case that the order of the appellate authority, that no suitable building was available for the petitioners for the purpose of conducting their trade, is based on sufficient materials, that it cannot beheld to be either perverse or illegal, and therefore, the learned Third Additional District Judge was not justified in interfering with the order in exercise of the revisional powers under S 20. It was also argued that the conclusion arrived at by the learned Judge is also unsupported by sufficient materials and it is unsustainable in law. Whether a suitable building is available for conducting the trade of the petitioners is a decision on a question of fact. That decision was arrived at by the appellate authority on an appraisal of the evidence available in the case. It cannot be said to be either improper or unsustainable. Whether a suitable building is available for conducting the trade of the petitioners is a decision on a question of fact. That decision was arrived at by the appellate authority on an appraisal of the evidence available in the case. It cannot be said to be either improper or unsustainable. It was pointed out that even the landlord as Pw-1 has mentioned in his evidence that no suitable building was available for the purpose of conducting his trade That evidence is binding on him So far as the petitioners are concerned, what CPW-1 mentioned was that during the pendency of the proceedings before the Rent Control Court a building owned by one Padmanabha Menon became vacant, but the owner of the building demanded exorbitant rent, and therefore, it was not possible for him to take it on lease. CPW 1 further clarified that the said building became vacant long after the petition for eviction was filed and that it was soon afterwards leased out to another person. In other words, according to the evidence of CPW-1, the building was not available when the demand for eviction was made and the petition for eviction was filed. It was lying vacant for a short time during the pendency of the proceedings. It was not available when the order of eviction was passed by the Rent Control Court. Under such circumstances, according to the petitioners, the revisional authority should not have come to the conclusion that a suitable building was available to the petitioners. 10. The learned Appellate Authority placed reliance on the decision Kochappan Pillai v. Chellappan 1976 KLT 1, and proceeded on the footing that the question whether a suitable building was available should be considered as on the date when the petition for eviction was filed and not on any subsequent date. The learned Third Additional District Judge observed that the decision does not lay down that if a building becomes available during the pendency of the proceedings for eviction under S.11(3) the tenant need not surrender the building. According to the learned Third Additional District Judge, even if a building was not available on the date of the filing of the application, if one becomes available before the order for eviction is passed it is the duty of the tenant to avail himself of the opportunity to get that building for carrying on his trade. 11. According to the learned Third Additional District Judge, even if a building was not available on the date of the filing of the application, if one becomes available before the order for eviction is passed it is the duty of the tenant to avail himself of the opportunity to get that building for carrying on his trade. 11. S.11(3) of the Act confers on the landlord the right to 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 it for his own occupation or for the occupation by any member of his family dependent on him. The second proviso to S.11(3) states that if a petition is filed for eviction under that sub-section 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. The question arose in some cases as to what should be the point of time when the availability of the building should be considered. Bhaskaran J , in two cases disposed of by him, Ikkorakutty v Hariharan, 1973 KLT 986 and Thomas Baby v. Cherian Thressiamma, 1973 KLT 1043 took the view that it was the availability of the building on the date of the order of the Rent Control Court that should be taken into account. A Division Bench of this Court in Kochappan Pillai v. Chellappan, 1976 KLT. I, however, held that it was the situation on the date of the application that should be considered. The Division Bench observed: 'The landlord is not expected to file application in anticipation of change of circumstances in bis favour by the time the application is disposed of. As the conditions mentioned in S.11(3) have to exist on the date of the application to make the provisions of S.11(3) applicable, to resist such an application based on the provisions of the second proviso which is a part of S.11(3) the facts referred to in that proviso must also exist on that date. As the conditions mentioned in S.11(3) have to exist on the date of the application to make the provisions of S.11(3) applicable, to resist such an application based on the provisions of the second proviso which is a part of S.11(3) the facts referred to in that proviso must also exist on that date. Consequently the point of time material for determining availability of other suitable building is the date of the application under S.11(3) and not the date of the order for eviction." 12. Ordinarily suitor's right to get relief depends on the state of things on the date of filing the suit. This is however subject to the provisions in the statute if any which confers him the right. Under S 11(3) the landlord gets the right to file a petition for eviction if he bona fide needs the building for the purpose mentioned therein. Evidently the right to file the application is dependent on the state of things on the date of petition. It is the need as on the dale of the petition that should be taken into account in deciding whether eviction should be ordered and the need as on the date of the petition is presumed to continue till the disposal of the petition unless it is proved otherwise. On the other hand, what the second proviso to S.11(3) states is that the Rent Control Court shall not give direction to the 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. The clauses "shall not give any direction" and "there is no other suitable building available" would suggest that the point of time when the availability should be considered is the date when the direction is to be made. At any rate, the matter is not free from doubt. Evidently a situation whether the tenant should find out alternate accommodation would arise for consideration only after the landlord establishes his bona fide need for the building. If the Rent Control Court is to hold against such need there may not be any necessity to find out whether a suitable building is available for the occupation of the tenant. Evidently a situation whether the tenant should find out alternate accommodation would arise for consideration only after the landlord establishes his bona fide need for the building. If the Rent Control Court is to hold against such need there may not be any necessity to find out whether a suitable building is available for the occupation of the tenant. It may be said that there will be practical difficulty in finding out whether a building is available on the exact point of time when the order is to be passed. But if it is made out that suitable buildings were available on the date of the petition or during the trial of the case the presumption is that the state of things would continue on the date of the order, unless there is evidence to the contra. I may refer here to the decision in Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409, wherein the Supreme Court had occasion to consider whether in a proceeding for eviction under the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act a subsequent event, disabling the landlord from seeking eviction can be taken note of. The Supreme Court observed: "It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has fundamental impact on the right to reliefer the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances." There is nothing wrong in the Rent Control Court moulding the relief based on the availability of buildings on the date when the petition for eviction is finally disposed of. 13. However, for the purpose of this case it makes no difference if I follow the dictum laid down in Kochappan Pillai v. Chellappan, 1976 KLT 1, which is binding on me. 13. However, for the purpose of this case it makes no difference if I follow the dictum laid down in Kochappan Pillai v. Chellappan, 1976 KLT 1, which is binding on me. Whether a particular building is suitable or not being a question of fact, a finding arrived at by the appellate authority is not to be interfered with by the revisional authority unless it is perverse or improper or based on no material In the instant case the appellate authority after referring to the materials available observed that even according to the landlord no building was vacant or available for taking on lease, on the date of the petition. Both the petitioners and the respondents thus agreed that on the date when the petition for eviction was filed or immediately before that date, no building was available for taking on lease by either of them. The learned Additional District Judge also proceeded on that footing. The further question is whether the appellate authority should have ordered eviction on the ground that a building became available for letting during the pendency of the petition for eviction. 14. There is no scope for dispute that the tenant need surrender the building leased out to him only if the alternate building which may be available to him for taking on lease is suitable for the conduct of the business that he is carrying. There is also no controversy on the point that in deciding whether a particular building is suitable, its location, the the plynth area and the means of communication are relevant factors. The dispute is whether the rent of the building should also be a decisive factor. The case of the petitioners is that though a building owned by Parayath Padmanabha Menon fell vacant after the petition was filed, the owner demanded an exorbitant rent and therefore they could not take it on lease. The learned Additional District Judge however held that the petitioners could have taken the building on lease and then moved for fixation of fair rent It was on that footing that he held that a suitable building was available as contemplated in the second proviso to S.11(3) and set aside the order of the appellate authority. 15. The learned Additional District Judge however held that the petitioners could have taken the building on lease and then moved for fixation of fair rent It was on that footing that he held that a suitable building was available as contemplated in the second proviso to S.11(3) and set aside the order of the appellate authority. 15. I don't feel any doubt that in deciding the suitability of a building for the purpose of carrying on the business or trade of the tenants, the rent that the tenant has to pay for the building is an important consideration. If the rent that the tenant is required to pay for the building is exorbitant and beyond his means, or if the tenant is called upon to pay a huge sum by way of advance, which is beyond his capacity to pay it may not be proper to insist that he should take it on lease and surrender the one that he was occupying. The question of suitability for the application of the second proviso to S.11(3) has been considered in Thomas Baby v. Cherian Thressiamma,1973 KLT 1043. Bhaskaran J., observed: "To satisfy the requirement of the proviso the finding that suitable building is available for carrying on the business or trade should be categorical and should have reference to existing facts without being left to chances. There should be proper evidence regarding the availability of the building, reasonableness of the rent that the tenant may be required to pay, utility of the building with particular reference to the trade or business that is being carried on by the tenant and other surrounding circumstances in order to enter a proper finding on this question. Eventhough the facilities available to the tenant when he shift to another building (if it is proved that such a building is available to him), though not exactly the same as available to him in the building which he is to surrender possession to the landlord, should not fall much below his requirements so as to adversely affect his trade or business to any appreciable extent." Though the decision stands overruled on certain other matters, the above observations stand good even now I respectfully agree that suitability of a building should be considered with reference to existing facts and should not be left to chances. In other words, whether the rent is reasonable should be decided on the basis of the present demand and not on the possibility of a reduction if and when an application for fixation of fair rent is made. 16. In the present case CPW. 1 has given evidence that the rent demanded by Parayath Padmanabha Menon was exorbitant and beyond his means The petitioner did not choose to let in any evidence on the above point and therefore the case has to be decided on the basis that the rent demanded was excessive and beyond the capacity of the petitioners. The building was not available for letting either on the date of the petition or on the date of the order of the Rent Control Court. The Appellate Authority was, therefore, justified in holding that no suitable building was available for the tenant for carrying on his business. In other words, the finding did not call for interference in revision under S.20 of the Act on the ground that it was illegal, irregular or improper. I therefore allow the revision petition. The order of the Third Additional District Judge, Ernakulam, passed in revision is set aside and that of the Appellate Authority is restored. The parties will bear their respective costs.