Muhammed v. Pathummakutty Umma — 1992 DIGILAW 380 (KER)

Judgment :- First respondent in R.C.P.No.10 of 1983 on the file of the Rent Controller, Perintalmanna, who is the tenant of the building involved in the case is the petitioner in the Original Petition. 2. There are 9 shoprooms in the building. The building originally belonged to Chettuvayi Muhammed and 4 others. It was entrusted to 1st respondent on a lease deed dated 16-3-1965 which stipulated a monthly rent of Rs.90/-. The document also provided that Rs.65/- will be paid to Pacheri Pathumma and two others towards interest on the mortgage and the balance of Rs.25/- will be paid to Chettuvayi Muhammed. The document also recited that one room was let out for a Vaidyasala and the tenant was entitled to evict the owner of Vaidyasala and reduce the room occupied by Vaidyasala into possession. It is the case of the first respondent herein that in 1973, there was a partition in the family of the lessors and the building was allotted to her. However the petitioner herein would contend that all the rooms were not allotted to the first respondent, who is the petitioner in R.C.P.No.10 of 1983 and two rooms were allotted to one Hamza. This is denied by the first respondent. However, by way of abundant caution, the other alleged lessors also joined the petition by getting them selves impleaded as additional petitioners. Eviction was sought under S.11(2), (3) and (4) of Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). 3. By Ext.P1, the Rent Controller granted eviction on all counts. However, on appeal, the appellate Authority reversed the findings of the Rent Controller excepting the finding regarding arrears of rent and remanded the matter for fresh consideration to the Rent Controller holding that better evidence is required in the matter. Ext.P2 is the said judgment. 4. Respondents 1 to 12 herein filed R.C.R.P.No.17 of 1989 before the District Court, Manjeri under S.20 of the Act, against the judgment of the appellate Authority in so far as the appellate Authority interfered with the findings of the Rent Controller in regard to eviction under Ss.11(3) and 11(4) and remanded the matter for fresh consideration. Petitioner also filed R.C.R.P.No.21 of 1989 challenging the finding in regard to arrears of rent. Petitioner also filed R.C.R.P.No.21 of 1989 challenging the finding in regard to arrears of rent. It was contended by respondents 1 to 12 that there is no deposit of amounts in terms of S.12(1) of the Act and therefore the appeal filed by the petitioner became incompetent. Learned District Judge upheld that contention. He also reversed the order of remand made by the appellate Authority and restored all findings of the Rent Control Court. R.CR.P.No.17 of 1989 was allowed and R.C.R.P.No.21/89 was dismissed. Ext.P3 is the said order. 5. In this Original Petition, petitioner has challenged Ext.P3 on various grounds. It is contended by learned counsel for petitioner that no revision under S.20 of the Act would lie against the order of remand made by the appellate Authority. It is also contended by learned counsel that the finding of the revisional court that the appeal is incompetent by reason of failure to deposit arrears of rent is wrong and is based on a ruling of a single judge of this court in Mohammed Kunju v. Rajamma (1989 (2) KLT 549), which was overruled by a Division Bench of this court in Pochappan Narayanan v. Copalan (1990 (2) KLT 1). It was further con tended that though the revisional courts power under S.20 of the Act is wider than the power under S.115 CPC, the power is not wide enough to come to a different conclusion on the basis of re appreciation of evidence. Another contention raised by learned counsel for petitioner is that the need pleaded is that of 1st respondent and since some of the rooms were allotted to other persons, 1st respondent cannot seek an eviction on the ground of bonafide need for own occupation. Learned counsel also submitted that the pleading in the petition was that 1st respondent wanted to carry on business through her son-in-law and the trial court went wrong in upholding the bonafide need after the death of the son-in-law of the first respondent. 6. Shri. S. Narayanan Poti, learned counsel for first respondent submitted at the outset that he is not pressing eviction under S.11(2) or on the ground that the Appeal was incompetent for the reason that no deposit of admitted arrears of rent was made. 6. Shri. S. Narayanan Poti, learned counsel for first respondent submitted at the outset that he is not pressing eviction under S.11(2) or on the ground that the Appeal was incompetent for the reason that no deposit of admitted arrears of rent was made. In Pochappan Narayanan's case (supra), a Division Bench of this court held that the word 'prefer' has been used in sub-section (1) not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with S.18 shall not be proceeded with or prosecuted further, if the conditions specified in S.12(1) are not fulfilled and that paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under S.18 of the Act and that the appeal gets properly lodged when the same is presented in accordance with S.18 of the Act. The Division Bench further observed that a tenant who does not fulfil the obligations imposed on him by sub-section (1) of S.12 can not be visited with the penal consequences contemplated by sub-section (3), unless all the conditions specified by sub-section (2) are satisfactorily fulfilled. It is not necessary for me to consider the matter in further detail in view of the aforesaid concession made by learned counsel for first respondent. 7. The next contention raised by learned counsel for petitioner is that no revision under S.20 of the Act would lie against the order of appellate Authority remanding the matter for such reconsideration. Learned counsel submitted that Exts.P2 is not a final order or judgment so as to attract S.20 of the Act. In order to appreciate the contention, it will be profitable to refer to S.20 of the Act, as it stood at the relevant time: "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 proceedings, and may pass such order in reference thereto as it thinks fit". 8. 8. Learned counsel for petitioner submitted that though the expression used is 'any order passed or proceedings taken', what is really meant is 'final order passed or final proceedings taken*. I am unable to accept the contention raised by learned counsel. The State Legislature has used only the expression'any order passed or proceedings taken and not' final order passed or final proceedings taken'. It can be seen from other similar enactments passed by the State Legislature that whenever the legislature wanted to restrict the right of revision in regard to only final order, it has stated so explicitly (See S.103 of Kerala Land Reforms act). 9. In the instant case, petitioner himself thought that a revision would lie and filed RCRP.No.21 of 1989 against the order in question on the assumption that a revision will lie against the order, though it is not final. It is only when his revision was dismissed and the revision filed by the respondents was allowed that the petitioner has raised such a contention for the first time in this court. 10. S.18 deals with Appeals. S.20A was inserted by Act 7 of 1966 for clarifying that the appellate Authority and the revisional authority have power of remand. S.20A states that in disposing of an appeal or application for revision the appellate authority or the revising authority may remand the case for fresh disposal according to such directions as it may give. This was introduced since a doubt was expressed whether the appellate authority has power of remand. If the legislature really wanted to exclude the orders of remand from the purview of revisional powers provided by S.20, the legislature would have done so by introducing necessary expressions either in S.20A or in S.20, but in the absence of such express exclusion, it would be totally against the plain reading of the section, if it is held that no revision would lie against an order of remand. 11. Learned counsel for petitioner relied on a few decisions of the Supreme Court to substantiate his contention that no revision will lie against the order of remand. 11. Learned counsel for petitioner relied on a few decisions of the Supreme Court to substantiate his contention that no revision will lie against the order of remand. In M/s. Tarapore & Co., Madras v. M/s.V/O Tractors Export, Moscow and another (AIR 1970 SC 1168), the Supreme Court held that the expression 'final order' or 'judgment' occurring in Art.133(1) of the Constitution means a final decision on the rights of the parties in dispute in a suit or proceedings and that if the rights of the parties in dispute in the suit or proceeding remain to be tried, after the order, the order or judgment is not final. The said decision cannot have any application in interpreting the expression "any order passed or proceedings taken in S.20". In Art.133(1) of the Constitution the expression used is' final order' and not' any order passed or proceedings taken'. The position is the same in Prakash Chand Agarwal & others v. M/s.Hindusthan Steel Ltd. (AIR 1971 SC 2319), where also the Supreme Court considered the scope of the expression 'final order' used in Art.133. Learned counsel pointed out that the expression used in Art.133 'judgment', decree or final order' and the expression 'final' is not used before 'judgment or decree' and only in the case of 'order', the expression 'final' is used and even then, the Supreme Court took the view that so long as the suit was alive, the order cannot be treated as final adjudication of the suit itself and that the certificate granted by the High Court was premature and not competent. I am unable to accept the argument of learned counsel which is based on the analogy of the expression 'judgment', decree or final order' used in Art.133 with the expression any 'order passed or proceedings taken' contained in S.20 of the Act. The expression 'any order passed or proceedings taken' has wider connotation than the expression 'judgment, or final order' used in Art.133 especially having regard to the context in which expressions are used in the Act and the Constitution. The same is the case with the decision of the Privy Council in V.M. Abdul Rahman and others v. D.K. Cassim & Sons and another (AIR 1933 P.C. 58) on the question of maintainability of an appeal in the Privy Council in a case where an important issue was decided leaving the suit alive. The same is the case with the decision of the Privy Council in V.M. Abdul Rahman and others v. D.K. Cassim & Sons and another (AIR 1933 P.C. 58) on the question of maintainability of an appeal in the Privy Council in a case where an important issue was decided leaving the suit alive. I do not find anything in S.20 to hold that revisional power is not exercisable against an order of remand made by the appellate Authority. 12. The next contention raised by learned counsel for petitioner is that during the pendency of the trial, Manhu Haji, who is the husband of her only daughter died. It is argued that thereafter the petition was not amended incorporating the name of PW2 as a person through whom the 1st respondent indented to carry on business. This according to the petitioner would negative the bonafide requirement for the purpose of doing business for the 1st respondent. It is clear from the averments in paragraph 8 of the petition that she sought eviction for the bonafide need of her residence and business. Being a lady, it is averred in para.8 of the petition, she will conduct hotel business through her son-in-law Manhu. In her evidence as PW-1, first respondent stated that she will carry on the business through Manhu Haji's son, PW-2, who is the grandson of PW-1. This evidence was corroborated by testimony of PW-2 also. In these circumstances, I do not think that it is necessary to amend the petition substituting PW-2's name for Manhu Haji. In my view, the revisional court is correct in holding that the observations of the appellate court that PW-1 should have amended the petition incorporating the name of PW-2 is not justified. 13. It is also not necessary to remand the matter to give an opportunity to the petitioner herein to show that PW-2 has other properties and that he is not a dependant of PW-1. The only question to be considered and decided was whether PW-1 had bonafide need to evict the tenant for the purpose of carrying on business and for residence. I do not think that an elaborate enquiry into the items of property belonging toPW2is necessary in deciding this issue. In fact, the counsel for petitioner herein had cross-examined P Ws.1 and 2 and elicited from them whatever evidence he could. I do not think that an elaborate enquiry into the items of property belonging toPW2is necessary in deciding this issue. In fact, the counsel for petitioner herein had cross-examined P Ws.1 and 2 and elicited from them whatever evidence he could. A remand for giving fresh opportunity to the petitioner to adduce evidence as to the extent of property of PW2 and dependency of PW2 on PW1 was quite unnecessary and uncalled for. It is not disputed that first respondent has no house of her own and her evidence shows that she was staying with her brothers. It is on the wrong assumption that the requirement is for carrying on business for PW.2 that the appellate Authority has preceded. 14. Learned counsel for petitioner next contended that Ext.A2 partition would indicate that Room Nos. 269 and 270 were allotted to Hamza and there is no pleading that Hamza required the building, that no evidence also was adduced to show that Hamza required the building and that in the circumstances the eviction from all rooms ordered is illegal. Hamza did not plead any subsisting right to any of the shop rooms for himself and his statement was only to the effect that he had no objection in granting an order of eviction in favour of the first respondent. The finding of the trial court as well as the revisional court was to the effect that the entire building belonged to first respondent. In view of the contention raised by the first respondent, supplemental petitioners 2 to 12 were added. However, all of them took the position that the first respondent is entitled to the entire building. The Rent Control Court found that the entire building belonged to the first respondent. Exts. B2 to B5 assessment registers would indicate that it was the first respondent who is the owner. The right of the first respondent to the entire building was upheld by all the courts. Petitioner herein initially claimed that he was a cultivating tenant, but that was rejected by Exts. A5 and A9 orders. It was held in para.9 of Ext.P2 by the appellate court that the denial of title by the petitioner is not at all bonafide. The right of the first respondent to the entire building was upheld by all the courts. Petitioner herein initially claimed that he was a cultivating tenant, but that was rejected by Exts. A5 and A9 orders. It was held in para.9 of Ext.P2 by the appellate court that the denial of title by the petitioner is not at all bonafide. It is also significant to note that in the revision petition filed by the ; petitioner, the challenge was only against the finding as to the arrears of rent and eviction ordered under S.11(2) and the finding of title in favour of first respondent was never under challenge in Civil Revision Petition filed by him. In the circumstances, petitioner cannot challenge that finding, which was upheld by all the authorities in this Original Petition. 15. The next contention raised by learned counsel for petitioner is regarding the finding on the question of sub-letting. Petitioner has no case that the 1st respondent has any other building in his possession so as to bring the case under the first proviso to S.11(3). As regards the application of second proviso to S.11(3), it has been held that both the conditions mentioned in that proviso have to be satisfied to bring the case under that proviso. In other words, it has to be found that the tenant is depending mainly on the income derived from the business he carried on in the building and that there is no other suitable building available for him to carry on such a business. 16. In Thomas v. Joseph (1986 KLT 392), it was pointed out by this court that the two ingredients mentioned in the second proviso are not disjunctive, but conjunctive, the burden being on the tenant to establish these ingredients so as to bring the case under the second proviso. No contention has been raised that there is no suitable building in the locality. No evidence also was adduced to that effect. In the counter affidavit filed by the petitioner also, no such contention was raised. Petitioner herein who was examined as R.W,1, has not stated that he has no other means of livelihood. In these circumstances, there is no justification for remanding the matter for fresh consideration on the question whether the eviction under S.11(3) can be ordered in the instant case. 17. Petitioner herein who was examined as R.W,1, has not stated that he has no other means of livelihood. In these circumstances, there is no justification for remanding the matter for fresh consideration on the question whether the eviction under S.11(3) can be ordered in the instant case. 17. It is next contended that at the time of entrustment of the building, many shop rooms were outstanding in the possession of tenants. There is no evidence to substantiate this contention. It is seen that one room was occupied by Vaidyasala and the lessee was empowered to evict the prior tenant who conducted Vaidyasala. Petitioner produced Exts.B2 to B5 to show that some other tenants were occupying other rooms, but the petitioner was not able to establish that any of the present occupants of the building were in possession at the time of entrustment to the petitioner. Exts.B2 to B5 do not mention the name of any persons who are now occupying the shop rooms. It was contended that in 1979, a notice was sent by 1st respondent alleging sub-lease, but no follow up action was taken to evict and the present petition was filed only in 1983. In the circumstances, Counsel argued that consent and acquiescence of the 1st respondent could be legitimately inferred. There is no pleading that the building was sub-let with consent. The plea was only that the building was already tenanted at the time of entrustment. R.W.1 admitted that the persons whose names appear in Ext.B2 have no possession. Ext.A1 clearly recites that all rooms other than the Vaidyasala are put in the possession of tenant. R.W.1 admitted that the sub-tenants were paying the rent to him. The documents under which they were put in possession were not produced by the petitioner. 18. The Supreme Court had occasion to consider the scope of S.11(4) of the Act vis-a-vis Section 108 0) of Transfer of Property Act in Krishnanv. Vijaya Raghavan (1980 KLT 709). Dealing with the question, the Supreme Court observed as follows:- "Read plainly and without gloss, S.11(4), simply and clearly, means that a tenant may be evicted on the ground of sub-letting unless such sub-letting is permitted by a term of the lease itself or by subsequent consent of the landlord. What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant. What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant. If the clause "if the lease does not confer on him any right to do so was not there in S.11(4)(i) the position would be unarguable that S.1080) would offer no protection. That much was also conceded by Shri Covindan Nair. In our opinion, the addition of the clause did not improve matters for the tenant. It only clarified matters to this extent that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently; but V I f it had to be conferred; it could not be claimed unilaterally by the tenant. To interpret S.11(4)(i) in the manner suggested by Shri Covindan Nair would be to rewrite the provision as follows: "If the tenant... without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof, though prohibited by the lease from doing so". That, we are not called upon to do. A little thought over the reason for S.11(4)(i) will also throw some light. Quite obviously, the legislature thought that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others beside himself, unless the landlord by his act agreed to such a course. Where the landlord had himself agreed that the tenant could sublet, the question would not arise. Therefore, S.11(4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord.' 19. The Supreme Court finally held that if a State Rent Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the Transfer of Property Act. S.1080) stands displaced by S.11(4)(i) of Act 2 of 1965 and provision contained in S.108 of Transfer of Property Act is no defence to an action for eviction based on S.11(4)(i). 20. Learned counsel for petitioner heavily relied on a ruling of the Supreme Court in AS. Sulochana v. C. Dharmalingam (AIR 1987 SC 242). S.1080) stands displaced by S.11(4)(i) of Act 2 of 1965 and provision contained in S.108 of Transfer of Property Act is no defence to an action for eviction based on S.11(4)(i). 20. Learned counsel for petitioner heavily relied on a ruling of the Supreme Court in AS. Sulochana v. C. Dharmalingam (AIR 1987 SC 242). That was a case where for 18 years, no objection was raised against subletting and the sub-tenant was openly in occupation of a part of rented premises during the said period. There was nothing on record in the case to show that sub-letting was not allowed. Neither the appellant nor the respondent had any personal knowledge about the terms and conditions of the Original grant. It is in those circumstances the Supreme Court held that those facts would give rise to an inference that the sub-lease was never treated as an offence by the appellant or her father. This decision has no application to the facts of the present case. 21. The appellate Authority remanded the matter to the Rent Controller stating that he has not properly considered whether the sub-tenants were in possession, even at the time of Ext.A1 and whether there was acquiescence on the part of landlord in the matter of sub-lease. Learned counsel for petitioner submitted that the revisional court acted illegally is admitting fresh evidence to fill up the lacuna in the evidence on these aspects. Learned counsel for first respondent submitted that fresh documents were produced to show that petitioner had other sources of income. He argued that even eschewing this evidence eviction under S.11(4) is sustainable as there was no attempt on the part of the petitioner to show that he had no other source of income and that he was solely depending upon his business carried on in the building for his main income and that there is no suitable building in the locality. 22. This contention appears to be sound, and reasonable. As pointed out by a Division Bench of this court in Sadanandan v. Kunheen (1991 (2) KLT 628), the burden to prove that there is no suitable building available in the locality and that the main income is derived from the business carried on in the premises is on the tenant. That burden has not been discharged. 23. It is lastly contended that the revisional power under S.20 of the Act is very limited. That burden has not been discharged. 23. It is lastly contended that the revisional power under S.20 of the Act is very limited. There cannot be any quarrel with regard to this proposition. As pointed out by the Division Bench in Sadanandan's case (supra), the revisional power is given to enable the court to satisfy itself as to the legality, regularity or propriety of the order challenged in revision and certainly from the language used in S.20 of the Act, it is also clear that the said power is wider than the revisional power under S.115 CPC. In Sadanandan's case (supra) the Division Bench pointed out that a re-appraisal of the evidence is possible for the limited purpose of ascertaining the legality, regularity or propriety of the order impugned. The power under S.20 of the Act can be exercised if the conclusions arrived at by the appellate authority can be characterised as "wholly unreasonable or perverse" or no tribunal could arrive at such a conclusion on the evidence on record. So also if the finding is based on surmises or conjectures or on materials not before the court or on baseless assumptions certainly revisional court can exercise its power to rectify that finding in exercise of powers conferred by S.20 of the Act. After careful consideration of the materials in the case, lam of the view that it cannot be said that the revisional authority has exceeded its powers in reversing the order of remand passed by the appellate Authority so as to enable this court to exercise its supervisory jurisdiction under Art.226 or 227 of the Constitution and interfere with the order passed by the revisional authority. In the result, the finding of the revisional court that the appeal before the appellate Authority is not maintainable for want of deposit of arrears of rent and the eviction ordered under S.11(2) are set aside and in all other respects Original Petition is dismissed.