K. A. Abdul Salam v. The District Judge — 1991 DIGILAW 7 (KER)

JUDGMENT Varghese Kalliath, J. 1. Petitioner in this Original Petition is a landlord of a building, which is in the occupation of the 4th respondent. Petitioner filed an application under the Kerala Buildings (Lease and Rent Control) Act, for short 'the Act' for eviction of the 4th respondent herein. 2. Petitioner raised grounds under S.11(2), 11(4) (i), 11(4) (iii) and 11(4)(v) of the Act for eviction of the 4th respondent. Petitioner contended that the 4th respondent - tenant subleased the building to the 5th respondent without, his consent and so the 4th respondent is liable to be evicted on the ground of subletting without consent. 3. It is not necessary for the disposal of this case the details regarding the other grounds raised by the petitioner. Those grounds are not active and alive now. Petitioner will be satisfied if this Court allows eviction on the ground of subletting. 4. The Rent Control Court and the Appellate Authority under the statute allowed the application on all grounds except under S.11(2) of the Act - arrears of rent. The 4th respondent herein filed a revision under S.20 of the Act before the Revisional Authority - the District Court. The Revisional Authority did not agree with the concurrent findings of the Rent Control Court and the Appellate Authority on the question of subletting and found that the petitioner did not establish the case of subletting. In regard to other grounds except S.11(2) of the Act, the Revisional Court found that there was no proper consideration by the Appellate Authority and so remitted the case for fresh consideration by the Appellate Court. As regards the remittal for consideration on all other grounds, counsel for the petitioner submitted that the petitioner is not much concerned. Petitioner is only aggrieved by the order of the Revisional Court reversing the finding of the Rent Control Court and the Appellate Authority on the question of subletting. This Original Petition is now essentially concerned with the question of subletting. Further, counsel submitted that if this Court holds that the finding on the question of subletting recorded is restored, petitioner will be entitled to get eviction and in that case the findings on other grounds are not of any material consequence. 5. Two reasons were emphatically urged before me for quashing the order of the Revisional Authority by counsel for the petitioner. 5. Two reasons were emphatically urged before me for quashing the order of the Revisional Authority by counsel for the petitioner. They are, (1) The Revisional Authority exceeded its jurisdiction in reversing the E concurrent finding of fact regarding subletting and (2) There are sufficient reasons for holding that the 4th respondent has subleased the building to the 5th respondent and so the finding of the Revisional Authority is fundamentally wrong on facts also. 6. Learned counsel referred me to several decisions dealing with the limited scope of the jurisdiction of the Revisional Authority under the Act. It was contended that the Revisional Authority did not keep in mind the fact that the Revisional Authority has got only a limited jurisdiction under S.20 of the Act. S.20 of the Act runs thus: - "20. Revision (1) In cases where the appellate authority empowered under S.18 is a subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or 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 proceeding, and may pass such order in reference thereto as it thinks fit. (2) The cost of and incident to all proceedings before the High Court or District Court under sub-s.(1) shall be in its discretion." The Supreme Court as well as this Court had occasions to delineate the width, content and scope of the jurisdiction conferred on the Revisional Authority by the legislature under S.20 of the Act. 7. Learned counsel also referred me to the decisions relating to similar provisions contained in the Rent Acts of the other States. S.20 of the Act was considered by the Supreme Court in 1969 K.L.T. 348 (Mathai v. Subordinate Judge). Counsel for the respondent - tenant - heavily relying on this decision submitted that there is absolutely no justification for saying that the Revisional Court had exceeded its jurisdiction in reversing the finding on fact recorded by the Rent Control Court and confirmed by the Appellate Authority. In the decision reported in 1969 K. L. T. 348, the Supreme Court was considering the scope of S.20 of the Act. In the decision reported in 1969 K. L. T. 348, the Supreme Court was considering the scope of S.20 of the Act. Of course, it was in relation to a question of bona fide requirement for own occupation. The Court observed thus: - "The words of S 20 of the Act of 1965 are much wider than those in S.115 of the Code of Civil Procedure. On the words of the section it cannot be said that a revision is limited to a mere question of jurisdiction. The District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper". 8. Learned counsel for the petitioner referred me to certain decisions of this Court dealing with the revisional jurisdiction under S.20 of the Act. Learned counsel referred me to the decision reported in 1977 KLT 386 (Mandal Gopalan v. Rohini) wherein Khalid Justice observed thus: - "The revisional Court under S.20 can in appropriate cases reappraise, revaluate 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." Further, Khalid, J. observed that: "an interference at the hands of the revisional court Under S.20 of the Act is permissible only when the conclusions arrived at by the appellate authority could be characterised as "so wholly unreasonable or perverse that no Tribunal could arrive at such a conclusion on the evidence on record". Simply because a different conclusion is possible, the revisional Court will not be justified in upsetting the orders of the appellate authority and the Rent Control Court". From the above quotes, it is cleat that His Lordship Justice Khalid is also of the view that the jurisdiction conferred on the Revisional Authority under S.20 of the Act permits a limited re-appraisal of the evidence. But there is an obvious, clean and clear purpose in the matter of re-appraising the evidence. From the above quotes, it is cleat that His Lordship Justice Khalid is also of the view that the jurisdiction conferred on the Revisional Authority under S.20 of the Act permits a limited re-appraisal of the evidence. But there is an obvious, clean and clear purpose in the matter of re-appraising the evidence. It is not for substituting a different view of the Revisional Authority on a thorough reappreciation of the evidence, but it is entirely for a different purpose. Re-assessment of the evidence permitted by S.20 of the Act is intended only to find out whether the conclusions arrived at by the courts below are perverse or unreasonable. This is evident from the observation of the Supreme Court in the decision reported in 1969 KLT 348 wherein the Supreme Court has said that the power given to consider the evidence is only to find whether the finding of the subordinate Judge was a proper finding. In the decision reported in 1978 K. L. T. 260 (Kadeersha v. Venkitaswamy), Justice Kochu Thommen as he then was, very plainly said thus: - "It is settled law that the jurisdiction of the Revising Authority under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, is not unlimited; he does not sit in appeal; his jurisdiction to interfere with 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 consideration; or, that it was unsupported by any evidence whatever". 9. Learned counsel for the petitioner submitted that a reading of the judgment of the Revisional Authority would not show that the Revisional Authority was of the opinion that the finding recorded by the Rent Control Court which was confirmed by the Appellate Authority is perverse or arbitrary. It is not stated that on the basis of the evidence on record, no reasonable tribunal would have given such a decision or the decision was rendered on the basis of irrelevant consideration or that it was unsupported by evidence. Generally, it is a well accepted principle that the concurrent findings of fact cannot lightly be interfered with by a Revisional Court or even by a Court of Appeal in Second Appeal. Generally, it is a well accepted principle that the concurrent findings of fact cannot lightly be interfered with by a Revisional Court or even by a Court of Appeal in Second Appeal. In regard to Second Appeal I had occasion to say thus: - "Though affirmation by the first appellate Court, of a crucial fact found by the trial court insulates the verdict with no inerrability, but since absolute objective certainty is impossible in the decision process in this imperfect world, there is plain and perfect justification on practical reasons to unopen the pylon when the first two judges concur in the factual conclusion at separate levels, particularly in the wake of the guillotine rule of prohibition of overseeing by this court in second appeal, the conclusions on facts by the appellate court made more stringent by the amendment to S.100 of the Code of Civil Procedure. Court's prime concern is to avoid miscarriage and failure of justice. Miscarriage and failure of justice may take different forms; a reevaluation of the evidence or a reappreciation of the evidence at the third tier of the litigation and a finding of fact different from that of the courts below in second appeal, may constitute a plain injustice in law to one of the parties". 10. I feel that I am bound to examine the submission carefully. I may begin my investigation referring to the reasoning given by the Rent Control Court and also the Appellate Authority. Of course, I have to examine the reasons stated by the Revisional Court to reverse the finding recorded by the two lower authorities. 11. The question to be considered is whether there is subletting by the 4th respondent to the 5th respondent in this petition. The case of respondents 4 and 5 is that the 5th respondent is acting only as a manager of the 4th respondent and that the business is carried on in the building in question by the 4th respondent himself. The Rent Control Court considered this question in Para.7 of its judgment. The Rent Control Court said that though it is stated that the sales tax registration and the assessment orders are in the name of the 4th respondent herein, those documents were not produced. The Rent Control Court considered this question in Para.7 of its judgment. The Rent Control Court said that though it is stated that the sales tax registration and the assessment orders are in the name of the 4th respondent herein, those documents were not produced. Further, the Rent Control Court said that the business conducted in the building, viz., Kaipully Agencies by the 1st respondent is having proper accounts regarding payments made to the employees and that no such accounts were produced to prove that the 5th respondent has been paid as manager under the 4th respondent. It has to be remembered that the case of 4th and 5th respondents is that the 5th respondent is only the manager of respondent No. 4. This is a fact which could have been proved by producing the documents referred to above. The Rent Control Court also adverted to the fact that the 5th respondent herein has paid arrears of rent when proceedings were taken for eviction. Of course, the Rent Control Court also adverted to the explanation given for such a course by the contesting respondent saying that the accounts were entrusted with the 5th respondent by the 4th respondent. 12. I have stated all these facts not to test the correctness of the inferences drawn from the evidence adverted to by the Rent Control Court, but only to highlight one particular aspect, viz., that the Rent Control Court was not discharging its obligation of appreciation of evidence without adverting to the materials placed before it. Appreciation of the facts proved before the court, by a Judge largely depends upon many factors which can be considered as subjective in character. A Judge may give much importance to a fact that an important document has been withheld by a party, who had possession of that document. Another Judge may think that on the stringent principles of onus of proof, the withholding of the important document may not be of much consequence. All these to a certain extent are depending upon the personal views of the concerned Judge. Of course, there are certain principles and norms in the matter of appreciation of evidence. Inferences drawn blatantly violating the accepted precedential principles and norms of appreciation may amount to an indifferent appreciation of evidence by a court. All these to a certain extent are depending upon the personal views of the concerned Judge. Of course, there are certain principles and norms in the matter of appreciation of evidence. Inferences drawn blatantly violating the accepted precedential principles and norms of appreciation may amount to an indifferent appreciation of evidence by a court. But it has to be remembered that in the area of appreciation of evidence a court has got, (whether it is the lowest court or the final court of fact) a large extent of freedom. A question whether a finding of fact recorded after appreciation of evidence and drawing inferences from the appreciation of evidence to be labelled as a perverse finding or a finding which no reasonable person can in the ordinary circumstance can come to is really a difficult matter. Lord Hailsham L C. in Re W (an infant) (1971) 2 All ER 49 at page 56 observed thus: "Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts, without forfeiting their title to be regarded as reasonable." Taking the spirit of the above quote, Lord Searman said in Nottinghamshire County Council v. Secretary of State (1986) 1 All ER 199 (H. L.) "where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision -making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely". 13. Only if the Appellate Court or the Revisional Court as the case may be is definite that such a finding is recorded by the lower court without adverting to material pieces of evidence or appreciated the evidence in a callous and indifferent manner or inferences are drawn by assessing the evidence casually and without keeping in mind the precedential norms and principles of drawing inferences from proved facts they can interfere with the order of the lower authority under the statute. This can be the only parameter for determining whether the finding is perverse or not. 14. This can be the only parameter for determining whether the finding is perverse or not. 14. Referring to the ocular evidence, the Rent Control Court said that PW 1 has admitted that there was a raid by the sales tax authorities and the relevant papers were found in the name of the 5th respondent herein. It is proved in the case that the 4th respondent is having a business at Trichur in the name of Thiruvambadi Stores dealing with stationary. Ultimately the court said that there is not even a scrap of paper produced by the tenant to show that even the correspondence are in his name as proprietor of Kaipully Agencies. It is also taken for drawing an inference against the 4th respondent that the 4th respondent was not in a position to produce any evidence showing that he has invested the amounts for the purpose of the business. The court also has given emphasis to the fact that the 4th respondent has not produced documents which would have cleared all the doubts in regard to this matter and there is no reason for not producing those documents. Added to this, the court spot lighted the fact that the arrears of rent have been paid by the 5th respondent even after the filing of the petition and that if payments of arrears of rent are entered in the account book maintained by the 4th respondent, he could have produced the same before the court. On these materials, the court found that the case pleaded by the petitioner herein that the 4th respondent has subleased the building to the 5th respondent is established. The question is whether on the aforesaid facts, is it possible to say that the finding is so unreasonable and perverse. 15. The Appellate Authority also considered this question elaborately in Para.8, 9 and 10 of its judgment. Apart from the reasons adverted to by the Rent Control Court, the Appellate Court found another circumstance against the 4th respondent. The Appellate Authority said thus: - "There is the clear admission of the appellant that those records if produced before Court would reveal the fact that the 2nd respondent is only a paid manager in the business of the appellant. But the appellant did not produce those account books or other documents before the Rent Controller. The Rent Controller, therefore had drawn an adverse inference against the appellant. But the appellant did not produce those account books or other documents before the Rent Controller. The Rent Controller, therefore had drawn an adverse inference against the appellant. Referring to that inference the appellant stated in Para.6 of the memorandum of appeal that he would be producing those documents before this courts. But curiously enough the appellant had not opted to produce those documents here also". 16. The Appellate Authority also considered the evidence regarding payment of profession tax for certain periods. The receipt for payment of q professional tax for the period from 1-4-1980 to 30-9-1980 and the copies of demand notice for payment of profession tax for later period were produced. The definite case of the landlord is that the appellant had left the building early in 1981 and so it was contended that the payment of profession tax till 30-9-1980 is not contrary to the case put forward by the landlord. The demand notice Exts. B2 and B2(a) are for the period from 1-4-1980 to 31-3-1981 and from 1-4-1981 31-3-1982 and the case of the landlord is that during the said period the business was conducted by the 5th respondent. The Appellate Authority had adverted to that aspect also and said that the demand notices are for the subsequent period and that there is no evidence to show that the appellant had paid the taxes for those periods. Payment is more important than demand of tax as far as this case is concerned. If the demand notices can be produced, the receipts for payment of taxes also could have been produced. 17. The Appellate Authority also has given great reliance on the evidence that in 1982 there was a raid conducted by the sales tax authorities in the petition schedule shop and that the entire proceedings were then initiated only against the 5th respondent and that if the 5th respondent was only a manager, there is no probability for taking proceedings against the 5th respondent. The Appellate Authority said that the exclusion of the 4th respondent from those proceedings would indicate that he had nothing to do with the business in the petition schedule shop room. On these materials the Appellate Authority confirmed the finding recorded by the Rent Control Court. Can it be said that the Appellate Authority has acted perversely in confirming the finding of the court below. On these materials the Appellate Authority confirmed the finding recorded by the Rent Control Court. Can it be said that the Appellate Authority has acted perversely in confirming the finding of the court below. As I said earlier, the crucial question that has to be looked into is whether there was a proper application of mind by the Appellate Authority on the materials placed before the court, viz. the material evidence before the court and other circumstances unfolded in the case. 18. Now, I shall advert to the consideration made by the Revisional Court on these aspects. At the outset, I should say that the Revisional Authority has not said that the findings recorded by the lower authorities are perverse or unreasonable. In fact, the Revisional Authority had made an independent consideration of the entire evidence and came to an independent conclusion and substituted its view in the place of the view expressed by the Rent Control Court and confirmed by the Appellate Authority. The whole question turns on the paint, whether the Revisional Authority has jurisdiction to make an independent conclusion quite different from the conclusion arrived at by the lower court and substitute its conclusion in the place of the conclusion reached by the lower authorities without applying its mind on the question whether the findings of the lower authorities are perverse or not. I feel that the Revisional Authority did not keep in mind this crucial aspect of the matter. I say so on the basis of the decisions I have already referred to. 19. The Revisional Court of course has said that the Rent Controller and the Appellate Authority erred in holding that there was sufficient evidence to prove subletting. In fact, the Revisional Authority was under the impression that an independent consideration of the evidence is possible for examining the correctness of the findings recorded by the lower authorities and has forgotten that the power of examination of facts is limited to ascertain the nature of the finding as to whether it is perverse or unreasonable. It also thought that examination of the evidence by the Revisional Court is for the purpose of finding a conclusion which may be more reasonable in the opinion of the Revisional Authority. But I do hot think that S.20 of the Act gives such a power to the Revisional Court. 20. It also thought that examination of the evidence by the Revisional Court is for the purpose of finding a conclusion which may be more reasonable in the opinion of the Revisional Authority. But I do hot think that S.20 of the Act gives such a power to the Revisional Court. 20. Learned counsel for the respondent very strongly relied on the observation of the Supreme Court reported in 1969 KLT. 348, "... whether the District Judge was empowered to consider whether on the evidence the finding of the subordinate Judge was proper'. Weighing and balancing the content of the above observation, two learned Judges of this Court said very clearly that the power of examination of the evidence by the Revisional Court is limited for the purpose of finding whether the lower courts finding is proper should be exercised in such a manner by determining whether the conclusions arrived at by the lower authorities are perverse or unreasonable. In a case where there can be two views possible on a question of fact which view should prevail depends upon the jurisdiction conferred on the authorities concerned. If two views are possible, viz. one view by the Revisional Court and the other view by the Appellate Court, only if the view of the Appellate Court is unreasonable or perverse, the view of the Revisional Court can prevail, otherwise the view expressed by the Appellate Court should be given effect to. This aspect of the matter has been very clearly said in AIR 1980 SC 1253 (Sri Rajalakshmi Dyeing Works v. Rangaswamy) The Supreme Court while dealing with S.25 of the Tamil Nadu Buildings (Lease & Rent Control) Act, which is a similar provision granting revisional powers to High Court thus:- "In fact it has to be noticed that under S.25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself under S.25 appears to be that the power conferred on the High Court under S.25 is essentially a power of superintendence. Therefore, despite the wide language employed in Sec.25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority". Therefore, despite the wide language employed in Sec.25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority". Further the Supreme Court said: "Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under S.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960". 21. In my view, there is absolutely no jurisdiction for the Revisional Authority to interfere with the concurrent findings on the questions of fact recorded by the lower authorities holding that the landlord has established the case of subletting. In this view, I have to hold that the decision of the Revisional Authority holding that the landlord has not established the case of subletting is not legal and sustainable. 22. Learned counsel submitted that the landlord ought to have proved in the case that the transfer of possession by the tenant to the 5th respondent was on valuable consideration and in this case, no attempt has been made by the land to establish that fact. I do not think that it is obligatory on the part of the landlord to establish a further fact after indicating all the circumstances that there is a sublease by the original tenant to establish on independent evidence that the sublease is on payment of premium or for valuable consideration. It will be a fact exclusively within the knowledge of the tenant and subtenant and so it may not be possible for landlord to establish that fact. The landlord's obligation is only to place before the court the circumstances and evidence, which would indicate a case of sublease. Then it will be a matter for taking a legal inference on the relevant facts. 23. Further, I have to advert to another argument high lighted by counsel for the respondent. The landlord's obligation is only to place before the court the circumstances and evidence, which would indicate a case of sublease. Then it will be a matter for taking a legal inference on the relevant facts. 23. Further, I have to advert to another argument high lighted by counsel for the respondent. He submitted that reversing the decision of the Revisional Court exercising my power under Art.226 and 227 of the Constitution in the circumstances of the case, will be over - stepping of my power. He referred me to the decision reported in A. I. R, 1987 SC 117 (Chandavarkar Sita Ratna Rao v. Ashalata). This decision clearly delineates the scope and width of the jurisdiction under Art.227 of the Constitution. I shall refer to Para.16 of the decision: "16. This appeal challenges the said judgment and order. As mentioned hereinbefore two questions require consideration - how far and to what extent in exercise of its jurisdiction under Art.226 or 227 of the Constitution and in this respect regarding power to deal with factual findings, the jurisdiction of the High Court is akin both under Art.226 and 227 of the Constitution, can the High Court interfere with the findings of fact? It is well settled that the High Court can set aside or ignore the findings of fact of an appropriate Court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Courts below have come or in other words a finding which was perverse in law. This principle is well settled. In D.N. Banerji v. P. R. Mukharjee, 1953 SCR 302 at p. 305: ( AIR 1953 SC 58 at p.59) it was laid down by this Court that unless there was any grave miscarriage of justice of flagrant violation of law calling for intervention it was not for the High Court under Art.226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the Court has not misdirected itself either on law or on fact, then in exercise of the power under Art.226 or Art.227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities. If there is evidence on record on which a finding can be arrived at and if the Court has not misdirected itself either on law or on fact, then in exercise of the power under Art.226 or Art.227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities. We have noted that both the trial Court and the appellate Court after discussing evidence have come to the conclusion that the appellant was a licensee in possession on or before 1st February, 1973. The learned trial Court had expressed doubt about Ex. A but ultimately accepted the position. There was leave and licence agreement. The learned appellate bench of the Court of Small Causes doubted Ex. A and said that it was a concocted story. It is true that there were discrepancies in the evidence of the obstruction and there was inconsistency in the conduct of the judgment - debtor in resisting the suit. Yet all these are for the Court's finding facts and if such fact finding bodies have acted properly in law and if the findings could not be described as perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding, such findings should not be interfered with within the exercise of the jurisdiction by the High Court under Art.226 and 227 of the Constitution". It has to be noted that a very important condition is clamped for instructing the High Court to decline the exercise, of its power under Art.227 of the Constitution by the Supreme Court when it said that the High Court should not interfere with the impugned orders of the Tribunals or Courts under Art.226 and 227 of the Constitution if the court has not misdirected itself either on law or on fact. 24. In my view, the Revisional Authority has misdirected itself clearly on a question of law and that too relating to its own jurisdiction and I feel that I am bound to exercise my jurisdiction under Art.227 of the Constitution. 24. In my view, the Revisional Authority has misdirected itself clearly on a question of law and that too relating to its own jurisdiction and I feel that I am bound to exercise my jurisdiction under Art.227 of the Constitution. I cannot uphold the decision of the Revisional Court and I hold that the decisions of the Rent Control Court and the Appellants Authority that the petitioner is entitled to eviction on the ground of subletting, are correct and should be given effect to and so petitioner is entitled to eviction on that ground. Original Petition is allowed to the extent indicated above.