B. Prabodhini v. P Rajammal — 1990 DIGILAW 504 (KER)

JUDGMENT K. Sreedharan, J. 1. Tenant of building bearing Door No. T. C. 38/1293 of Trivandrum Corporation is the petitioner in O. P. No. 8311 of 1988. Landlord of that building has preferred O.P. No. 962 of 1989. These petitions arise out of R.C.P. No.4 of 1981 on the file of the Rent Control Court, Trivandrum. Landlord initiated the proceedings for eviction of the tenant under S.11(3), 11(4)(ii) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. Before the Rent Control Court, on the side of the landlord P.Ws. 1 and 2 were examined and Exts. A1 to A7 were proved. P.W. 1 is the landlord. Tenant got hereself examined as C. P. W. 1. On an appreciation of the entire evidence let in by the parties, the Rent Control Court allowed the landlord to recover the building under S.11(3) and 11(4)(ii) of the Act. The claim for eviction under S.11(4)(iv) was virtually given up by the landlord. Aggrieved by the decision of the Rent Control Court the tenant took up the matter in appeal. The Appellate Authority reversed the finding entered by the Rent Control Court under S.11(3) of the Act, But it sustained the order of eviction passed under S.11(4)(ii). Both landlord and tenant challenged the decision of the appellate authority in revision before the District Court. Landlord's revision petition was filed more than one year and four months after the decision of the appellate authority. The revision petitions were disposed of by the District Court by a common order. District Court while disposing of the revision petition filed by the landlord, refused to interfere with the appellate authority's order refusing recovery under S.11(3) of the Act on the ground of delay in filing the revision and that the landlord failed to substantiate the grounds for recovery under S.11(3) of the Act. The tenant's revision petition was dismissed holding that the tenant is to put the landlord in possession of the building by virtue of S.11(4)(ii) of the Act. Petitioners in these original petitions question the validity of the order passed by the Revisional Court. 2. According to the landlord, petitioner in O. P. No. 962 of 1989 the appellate authority and the revisional court Were in error in refusing recovery under S.11(3) of the Act. Petitioners in these original petitions question the validity of the order passed by the Revisional Court. 2. According to the landlord, petitioner in O. P. No. 962 of 1989 the appellate authority and the revisional court Were in error in refusing recovery under S.11(3) of the Act. The revisional court was not, it is argued, justified in dismissing the revision petition on the ground of limitation. Under S.11(4)(ii) the landlord was found entitled to recover the building. Since the final order of the appellate authority was in favour of the landlord in the sense that recovery has been ordered, it is contended that even without filing a separate revision, the landlord could have sustained the order of eviction, under S.11(3) of the Act as well. In this sense the District Court was not justified in treating the revision petition filed by the landlord as one barred by limitation. 3. The tenant challenges the order passed by the authorities below on the ground that the gate put up by tenant for ingress and egress to and from the road has not gone to destroy or reduce the value or utility of the building materially or permanently. Consequently it is argued that the authorities below were not justified in allowing the landlord to recover the building under S.11(4)(ii) of the Act. 4. I will first deal with the petition filed by the landlord. Ext. P1 in O.P.No. 8311 of 1988 M is the petition filed by the landlord before the Rent Control Court. The averments made therein, for making out a claim for recovery of the building under S.11(3) of the Act are as follows: "8. It is with a view of residing as well as to conduct the profession of the petitioner and her family members the petitioner has purchased the said building which is very much suited for conducting the goldsmiths shops as it is very close proximity to Chalai Bazar and other goldsmith shops. 14. The Petitioner requires the building for the bona fide residence of the petitioner's daughter and her family and also for conducting a goldsmith shop by the petitioner for the livelihood of the petitioner and her dependants". The above averments would show that the landlord has put forward two requirements as grounds for recovering the building under S.11(3) of the Act. The first requirement is for the residence of the landlord's daughter and her family. The above averments would show that the landlord has put forward two requirements as grounds for recovering the building under S.11(3) of the Act. The first requirement is for the residence of the landlord's daughter and her family. The second one is for conducting a goldsmith's shop by the petitioner for her livelihood and of her dependants. The bona fides of these two requirements are to be tested on different footing. Was the landlord's daughter depending on her? Was it necessary for the daughter to shift to the premises now occupied by the tenant? Was the landlord having the means to start a business as goldsmith in the tenanted promises? Can these two requirements set up by the landlord coexist? Is the building spacious enough to have the residence of the landlord's daughter and to accommodate the business to be started by landlord? 5. Landlord has never stated in Ext. P1 petition that her daughter is depending on her. If the daughter is not a dependant of the landlord, the landlord cannot ask for recovery of the building for the residence of such a daughter. There is nothing on record to show that the tenanted premises can be utilised for the residence of the daughter as also for starting the business of goldsmith. If the building can be utilised only for one purpose, either as the residence of the daughter or as the shop building for carrying on the business of goldsmiths, the tests of bona fides should vary. Evidence in support of one need may not be acceptable in testing the bona fides of the other. When conflicting needs are put forward, the bona fides of such needs cannot be successfully established in the proceedings. The bona fides of such needs cannot coexist. Landlords claim under S.11(3), on the facts arid circumstances of this case, cannot be considered to be bon fide as held by appellate authority and revisional court. The District Court examined merits of the claim put forward by the Landlord for recovering the building under S.11(3) of the Act. The appreciation of evidence and the conclusions arrived at by that court are, according to me, unassailable. 6. Learned counsel representing the Landlord challenges the view taken by the Learned District Judge that the revision petition is barred by limitation. The appreciation of evidence and the conclusions arrived at by that court are, according to me, unassailable. 6. Learned counsel representing the Landlord challenges the view taken by the Learned District Judge that the revision petition is barred by limitation. It is submitted that even if the landlord's revision happened to be one filed beyond a reasonable time from the date of judgment of the appellate authority, the order of eviction could have been supported by the landlord even on the grounds which were disallowed. Order for eviction having been passed on one of the grounds prayed for, it is submitted, can be supported on grounds which were disallowed by appellate authority. The argument is that the revisional court is a civil court, it is governed by the provisions of the Code of Civil Procedure, that O.41 R.22 applies to the proceedings before it and so the landlord, without filing a separate revision could have supported the order of eviction even under S.11(3) of the Act. In support of this learned counsel relied on the decision of a Division Bench of the Madras High Court in Durgai Ammal vs. R. T. Mani (1989 DRCR 47). There the question that was considered was whether a landlord, in a revision filed by a tenant can urge that one of the finding which is against him is palpably wrong. The facts were as follows: - Landlord sought eviction of the tenant on two grounds, wilful default in payment of rent Rs. 350/- per month and that tenant denied the title of landlord. The proceeding came up to High Court in revision. High Court upheld the title of landlord and then remitted the case to the appellate authority to find out the quantum of rent. Appellate authority found the rent to be Rs. 15/- per month and held that tenant defaulted payment and there had been willful denial of title. C. R. P. was filed against it. While the above proceeding was pending, landlord initiated another action for eviction of the tenant on the ground of default in payment of rent at the rate of Rs. 15/- per month and that he bona fide requires the premises for own occupation. Rent Control Court dismissed it. Appellate Authority allowed eviction on the ground of default in payment of rent alone. C. R. P. was filed against that order. 15/- per month and that he bona fide requires the premises for own occupation. Rent Control Court dismissed it. Appellate Authority allowed eviction on the ground of default in payment of rent alone. C. R. P. was filed against that order. It is not known as to who preferred the second revision. It must have been preferred by the tenant Otherwise the question need not have arisen before the High Court. S.23 of the Tamil Nadu Rent Control Act is as follows: "25(1). The High Court may on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of the Revision. Appellate authority to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if in any case it appears to the High Court that any such decision or order should be modified annulled, reversed or remitted for reconsideration, it may pass orders accordingly." The High Court observed; "Landlord having been permitted to initiate proceedings for eviction in a single petition, on more than one ground conceived of under the Act, and when they have been dealt with together and disposed of by a single order, and on landlord establishing any one of the grounds, and in which event the ultimate order would lead to the tenant being directed deliver possession of the properly; and under S.25, when the High Court has to satisfy the tests about the correctness, illegality or propriety of the order or decisions which is an order of eviction, and which could be obtained by proving anyone of the many grounds as taken in the petition already filed; it cannot be held that the High Court would be exercising an appellate power by permitting the landlord to sustain the order on grounds already taken in the petition and which had been held against him, though ultimately he succeeded in the petition on one or some of the grounds taken by him. In the nature of powers conceived of under S.25, on a revision petition preferred by one of the parties to the proceedings; the entire proceedings is at large before the High Court, which could go into not only about the regularity of such proceedings but on other aspects spelt out in S.25. In the nature of powers conceived of under S.25, on a revision petition preferred by one of the parties to the proceedings; the entire proceedings is at large before the High Court, which could go into not only about the regularity of such proceedings but on other aspects spelt out in S.25. In satisfying itself on these aspects, it had been conferred with revisional powers, wider than that of S.115, C. P. C. and when one of the parties to the proceedings tries to jeopardise the order, the High Court gets the jurisdiction to look into the entirety of records," 7. The revisional authority under the Act is a civil court under the Code of Civil Procedure. This has been made clear by a Full Bench of this court in Ouseph Vareed v. Mary ( 1968 KLT 583 ). Eradi J. (as he then was) speaking for the Full Bench observed: "It is seen from S.20(1) that the revisional power is conferred not upon any special Tribunal or authority constituted under this statute but on an established court, viz. the District Court or the High Court as the case may be. In exercising the revisional power under this section the revisional authority functions as a court and not as a persona designata in as much as the jurisdiction has been conferred under the Act on the court itself. It is now well established that where by a statute matters are referred to the determination of a record with no further provision, the necessary 'implication is that the court will determine the matter' "as a court". Its jurisdiction is enlarged, but all the incidents of such jurisdiction including the right of appeal from its decision remain the same ........................Since the statute in the case before us has conferred the revisional jurisdiction on one of the ordinary courts of the country viz. the District Court, the procedure as well as the orders and decrees of that court will be governed by the ordinary rules of Civil Procedure." This observation of the Full Bench is surviving with full vigour and not displaced by the Supreme Court in the decision in Aundal Ammal's case ( 1987 (1) KLT 53 ). Even so the District Court is exercising only a revisional power. Even so the District Court is exercising only a revisional power. The scope of that power has been stated by the Supreme Court in Rajalakshmi Dyeing Works v. Rangasamy (AIR 1980 SC 1253) in the following terms: "Appeal and Revision are expressions of common usage in Indian Statutes and the distinction between appellate jurisdiction and revisional jurisdiction is well known though not well defined. Ordinarily appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may however be limited in one way as, for instance has been done in the case of second appeals under the Code of Civil Procedure and under some rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the Statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping Tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law and according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our Statutes is always included in appellate jurisdiction but not vice - versa. These are general observations. The question of the extent appellate or revisional jurisdiction has to be construed in each case with reference to the language employed by the Statute". This makes it clear that the revisional jurisdiction is not co-extensive as appellate power. It is well settled that the revisional power under S.20 of the Act is wider than the jurisdiction under S.115 of the Code of Civil Procedure. Even that power cannot be treated as akin to the appellate jurisdiction. In this view the provisions of O.41 R.22 of the Code cannot be applied in the exercise of power under S.20 of the Act. 8. The nature of the rights conferred on the landlord under the Kerala Act, persuades me to take the view that the above decision of the Madras High Court cannot have any help to the landlord. The landlord has separate and distinct rights under the various clauses of S.11 to get the tenanted premises recovered. 8. The nature of the rights conferred on the landlord under the Kerala Act, persuades me to take the view that the above decision of the Madras High Court cannot have any help to the landlord. The landlord has separate and distinct rights under the various clauses of S.11 to get the tenanted premises recovered. If the landlord applies for recovery on two or more grounds and recovery is ordered only on one ground, the landlord if wants to get recovery on the ground which is declined has to challenge the order in that regard before the revisional court. The tenant who has been directed to put the landlord in possession of the premises on one of the grounds if challenges the same in revision, the landlord will not be having the right to sustain the order of eviction on another ground, without preferring a separate revision. This view is supported by an observation made by Khalid, (as he then was) in Abdul Rahiman and others v. Ramankutty Moothan ( 1983 KLT 726 ). "According to me, S.11(3), 11(4)(iv) and 11(8) are independent provisions. In all these cases the requirement should be bone fide.But the nature of the requirement in each section is different. In certain cases, the shades of requirement may overlap. But each section operates independent of the other." It means that if the landlord has been allowed recovery of the buildings on one of the grounds urged by him alone, then he will not be in a position to sustain the order on another ground which is entirely independent. If the landlord wants to challenge the order of the appellate authority rejecting his prayer to recover the building on one of the grounds put forward by him, he should prefer revision against that part of the order which disallowed eviction on that ground. No period is prescribed for preferring a revision from the judgment of the appellate authority. But this court has consistently taken the view that revision petition should be filed within a reasonable period and that period has been fixed as 90 days. Reference may be made to the decision in Padmanabha Pillai, Arunachalam Pillai v. Narayana Pillai Natarajan and another ( 1969 KLJ 614 ) and Narayanan v. Rent Controller ( 1988 (2) KLT 74 ). Reference may be made to the decision in Padmanabha Pillai, Arunachalam Pillai v. Narayana Pillai Natarajan and another ( 1969 KLJ 614 ) and Narayanan v. Rent Controller ( 1988 (2) KLT 74 ). In the instants case the landlord preferred the revision petition after the lapse of one year and four months. That revision, as has been rightly held by the revisional court, is barred by limitation. After having found that the revision petition is barred the District Court examined the merits of the contentions raised by the landlord for recovery under S.11(3) of the Act as well. On merits also it found against the landlord. As found earlier the finding entered by the revisional court on merits is legal and it calls for no interference. 9. Coming to the original petition filed by the tenant namely, 8311 of 1988 the authorities below, have ordered the petitioner to put the landlord in possession of the premises under S.11(4)(ii) of the Act. The claim based on S.11(4)(ii) was put forward by the landlord in Ext. P1 petition in the following terms: "Recently the counter petitioner has committed wilful waste in the said petitioner's property by demolishing the compound wall put by the petitioner, causing serious damages to the petitioner. Moreover the counter petitioner has unauthorisedly constructed a gate after demolishing the compound wall though such a gate is not absolutely necessary." From the pleadings and evidence it has come out that the tenant has cut open a passage in the compound wall. That passage has been fitted with a gate. Can it be said that putting up of a gate by removing a portion of the compound wall as one destroying or reducing the value or utility of the building materially and permanently? The authorities below i have taken the view that the said action of the tenant has subjected him to eviction under S.11(4)(ii) of the Act. 10. In Ayissabeevi's case 1971 KLT 273 this court held that in a case where the act of the tenant obliterated the boundary line and tagged on the property with the adjoining land amount to waste. Can waste by itself be a ground for eviction under S.11(4)(ii) of the Act? 10. In Ayissabeevi's case 1971 KLT 273 this court held that in a case where the act of the tenant obliterated the boundary line and tagged on the property with the adjoining land amount to waste. Can waste by itself be a ground for eviction under S.11(4)(ii) of the Act? As per that provision tenant must use the building in such a manner as to destroy or reduce its value or utility materially and permanently The User must be one to destroy or reduce the value of the building materially and permanently. Something short of this requirement is not enough to entitle the landlord to recover possession. The Supreme Court had to consider the scope and meaning of the word 'materially' in Om Prakash v. Amar Singh and another ( AIR 1987 SC 617 ). Their Lordships observed. "The Act does not define either the word 'materially' or the word 'altered'. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. Concise Oxford Dictionary defines the word 'alter' as change in character, 'position' "materially'' as an adverb means 'important' essentially concerned with matter not with form. In Words and Phrases (Permanent Edition) one of the meanings of the word 'alter' is 'to make change, to modify, to change, change of a thing from one form and set to another. The expression "alteration" with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity". The meaning given to these two words show that the expression 'materially altered' means "a substantial change in the character, form and the structure of the building without destroying its identity." It means that the nature and character of change or alteration of the building must be of essential and important nature." 11. For S.11(4)(ii) to come into operation user must be one which reduces the value materially and permanently. The destruction of utility or value of the building if is not of a permanent nature then the tenant cannot be directed to put the Landlord into possession of the building. (Vide Ahammad Kanna v. Muhammed Haneef ( 1967 KLT 841 ) and Shanmugam v. Rao Saheb ( 1988 (1) KLT 86 ). In the instant case a portion of the compound wall was removed and a gate was put up. (Vide Ahammad Kanna v. Muhammed Haneef ( 1967 KLT 841 ) and Shanmugam v. Rao Saheb ( 1988 (1) KLT 86 ). In the instant case a portion of the compound wall was removed and a gate was put up. It was so done for helping the students in the Nursery classes to go to the School. Putting up of the gate after removing a portion of the wall cannot be taken as an act to destroy or reduce the value or utility of the building. By no stretch of imagination can that be considered as one materially affecting the value or utility of the building. Much less can it be said that it has got the effect of reducing the value or utility of the building permanently. Viewed in this light I am of the opinion that the authorities below were not justified in considering the construction of a gate in a portion of the compound wall as one destroying or reducing the value of the building or its utility materially and permanently. 12. Learned counsel representing the petitioner contended that in " exercise of the powers Art.227 of the Constitution, this court is not to interfere with the concurrent finding arrived at by the authorities below. It was argued that rightly or wrongly the authorities below have found the existence of the ground under S.11(4)(ii) of the Act for ordering eviction. The authorities had the jurisdiction to enter a finding on that issue. In such a situation this court is not to interfere with that conclusion. I am not impressed with this argument. A small opening made in the compound wall for fitting a gate was taken by the authorities below as an act which has gone to destroy or reduce the value of the building materially and permanently. This view is not one which is capable of being taken by "legally trained person. In other words this finding is one which would not have been entered into by a court aware of the terms of S.11(4)(ii) of the Act. The conclusions arrived at are such that by no stretch it imagination can be treated as one falling within the statutory provisions applicable to the case. 13. In other words this finding is one which would not have been entered into by a court aware of the terms of S.11(4)(ii) of the Act. The conclusions arrived at are such that by no stretch it imagination can be treated as one falling within the statutory provisions applicable to the case. 13. Dealing with the power of this court under Art.227 of the Constitution, Their Lordships of the Supreme Court in Arjun Khiamal Makhijani v. Jamnadas C. Tuliani ( 1989 (4) SCC 612 ) observed: "Insofar as the submission made by learned counsel for defendant 6 that a finding of fact could not be interfered with in a writ petition by the High Court is concerned, by and large no exception can be taken thereto. The rule in this behalf, however, is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated. For instance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly instructed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents." Since the view taken by the authorities below is one which could not have been taken by a judicial mind I am constrained to interfere with the finding though concurrent. 14. In the result the order of eviction passed against the tenant is set aside and R.C. P.4 of 1981 on the file of the Rent Control Court, Trivandrum is dismissed. Original petitions are disposed of in the above terms. I direct the parties to suffer their costs.