K.A. Anthappai
Vs. C. Ahammed [1992] INSC 143 (5 May 1992)
Agrawal, S.C. (J) Agrawal, S.C. (J) Thommen, T.K. (J)
CITATION:
1992 AIR 1696 1992 SCR (3) 70 1992 SCC (3) 277 JT 1992 (4) 65 1992 SCALE
(1)1055
ACT:
Kerala
Buildings (Lease & Rent Control) Act, 1965- Section 20 and Section 115,
Code of Civil Procedure, 1908- Revisional jurisdiction under-Distinction-Revisional
powers- Nature and scope of-Reassessment of evidence by revisional
court-Legality of.
Kerala
Buildings (Lease & Rent Control) Act, 1965- Sections 11(3), 11(4)(ii)-Landlord's
requirement for bonafide residence-Whether to be negatived on ground of
building requires repairs/alterations.
Kerala
Buildings (Lease & Rent Control) Act, 1965- Sections 11(3)-Whether tenant
entitled to the benefit of second proviso-Appreciation by Appellate
Authority-Necessity of.
HEAD NOTE:
The
appellant's father let out the disputed building wherein the tenant-respondent
carried out the hotel business.
The
appellant-landlord filed an eviction petition on 15.1.81 before the Rent
Controller stating that after his retirement from service on 30.9.1981, he
wanted to settle down in that town and as he had no other house to reside, the
disputed building was required by him bona fide for his occupation; that the
respondent-tenant was using the property in such a manner as to materially and
permanently reduce its value, utility and purpose.
The
respondent contended that the building was not suitable for residential
purposes; that the appellant had a house and plot in his wife's name within the
town; that there was a lot of vacant land on the back side of the tenanted
building, which was suitable for house construction and that the property was
not being used in such a way as to reduce its utility.
The
trial court dismissed the eviction petition of the landlord, holding that as he
failed in proving his bona fide need of the building, the landlord was not
entitled to an order of eviction under Section 11(3) of the 71 Kerala Buildings
(Lease & Rent Control) Act, 1965 and as the landlord failed to prove that
the tenant was using the building in such a way to destroy its value and
utility, he was not entitled to an order under section 11(4)(ii) of the Act.
On
appeal, the Appellate Authority reversed the order of the Rent Controller.
The
High Court in revision set aside the order of the Appellate Authority, against
which the present appeal by special leave was filed before this Court by the
landlord.
On the
question, whether the respondent was liable to be evicted on the ground of bona
fide need of the appellant for his personal occupation under section 11(3) of
the Act, this Court allowing the landlord's appeal,
HELD:
1.1.
The scope of the revisional jurisdiction conferred under section 20 is wider
than that conferred under section 115 CPC. But at the same time, a revision
under section 20 cannot be equated with an appeal. [75 C]
1.2.
The revisional power conferred on the High Court is essentially a power of
superintendence and despite the wide language employed, the High Court should
not interfere with the findings of fact of the subordinate authority merely
because it does not agree with the said findings.
[75 E]
Dattonpant Gopalverao Devakate v. Vithabrao Maruthirao Janagaval, [1975] Supp.
SCR 67; M/s. Sri Raja Lakshmi Dyeing Works & Ors. v. Rangaswamy Chettiar,
AIR 1980 SC 1253, followed.
1.3.
The revisional court must be reluctant to embark upon an independent
reassessment of the evidence and to supplant a conclusion of its own,so long as
the evidence on record admitted on and supported the one reached by the court
below. [75 F] Rajbir v. S. Chokesiri & Co., [1986] 1 SCC 19 at p.37,
followed.
2.1.
The question whether the building is required bona fide by the appellant for
his own residence is primarily one of fact and the finding recorded by the
Appellate Authority after considering the evidence on 72 record could not be
interfered with by the High Court in exercise of the revisional jurisdiction
under Section 20 of the Act because it could not be said that the said finding
recorded by the Appellate authority was not supported by the evidence on
record. [77 E]
2.2.
The fact that the appellant has been living with his son in the house belonging
to him (son) cannot head to the inference that the claim of the appellant that
he want to live in a house of his own is false and not bona fide.
The
same is true about the building in question not having the requisite facilities
and being not in a fit condition for residence because the appellant can make
suitable repairs and alterations in the same to make it fit for residential
purposes. [78 B-C]
2.3.
The claim of the landlord that he needs the building bona fide for his personal
occupation cannot be negatived on the ground the the building requires repairs
and alterations before the landlord can occupy the same. [78 D] 2.4. There is
no prohibition that a landlord must occupy the house for residence without
making any alterations in it. [78 H - 79A] Devaky v. Krishnankutty, (1987) 1
K.L.T 671, approved.
Ramniklal
Pitambardas Mehta v. Indradaman Amratlal Sheth, [1964] 8 SCR 1, followed.
3.1.
Before passing a decree for eviction on the ground of bona fide need of the
landlord under section 11(3) of the Act, it was necessary for the Appellate
Authority to consider whether the tenant was entitled to the benefit of the
second proviso to sub-section (3) of section 11 of the Act which precludes the
passing of an order for eviction of a tenant who is depending for his
livelihood mainly from the trade or business carried on in such building and
there is no other suitable building available in the locality for him to carry
on such trade or business. [79 C] 3.2. Since the Appellate Authority has
omitted to consider the matter from this angle the matter should be remanded to
the Appellate Authority for considering the question whether the respondent can
invoke the protection of the second proviso to section 11(3) of the Act.
[79 G
- 80A] 73
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1945 of 1992.
From
the Judgment and Order dated 4.1.1991 of th Kerala High Court in C.R.P. No.
1830 of 1990 Mathai M. Paikeday and C.N. Sreekumar for the Appellant.
P.S. Poti
and Ms. Malini Poduval for the Respondent.
The
Judgment of the Court was delivered by S.C. AGRAWAL, J. Special leave granted.
This
appeal filed by the landlord arises out of a petition filed under Sections
11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act,
1965 (hereinafter referred to as 'the Act') for the eviction of the respondent
from the building situate in the city of Cochin.
The
building in question was let out to the respondent by the father of the
appellant on May 1,
1972 and he has been
carrying on hotel business on the same. The said building stands on a portion
of 13 cent of land owned by the appellant. The appellant was employed with Bharat
Gold Mines Ltd. and was due to retire on September 30, 1981.
Prior
to his retirement, the appellant filed the eviction petition before the Rent
Controller, Ernakulam on January 15, 1981 wherein the appellant pleaded that
after his retirement from service, he wanted to settle down in Cochin and
except the building in question, he has no other house to reside and that the
said building was required by him bona fide for his occupation. It was also
pleaded by the appellant that the respondent was using the property in such a
manner as to materially and permanently reduce its value, utility and purpose.
The said petition was contested by the respondent on the ground that the
building is not suitable for residential purposes inasmuch as it consists of
two adjoining sheds and there is no toilet facility in the same and that it is
not possible to reside therein. It was further pleaded that the appellant has a
house and plot in the name of his wife within the municipal limits of Cochin
Corporation and the same is suitable for the residence of the appellant and his
family members and further there is a lot of vacant land on the back of the
building and the same is suitable for constructing a house. The respondent
denied that the property was being used in such a way as to reduce its utility.
By his order dated February 20, 74 1989, the Rent Controller dismissed the said
petition of the appellant and found that the appellant had failed in proving
his bona fide need of the building and he was not entitled to an order of
eviction under S.11(3) of the Act and that he has also failed to adduce
adequate evidence to prove that the respondent was indulging in an activity
which has destroyed the value and utility of the property materially and
permanently and he could not seek eviction under Section 11(4)(ii) of the Act.
The said order of the Rent Controller was reversed in appeal by the Appellate
Authority by its judgment dated July 18, 1990. The Appellate Authority agreed with the finding recorded
by the Rent Controller that the appellant could not seek the eviction of the
respondent under s.11(4)(ii) of the Act but it disagreed with the finding of
the Rent Controller that the respondent was not liable to be evicted under
S.11(3) of the Act. The Appellate Authority held that the appellant had
succeeded in establishing the bona fide need set up by him. On revision under
S.20 of the Act, the High Court, by its judgment dated January 4, 1991, set
aside the finding recorded by the Appellate Authority regarding the bona fide
need of the building for his occupation and agreed with the view of the Rent
Controller that the appellant had failed to establish that he was entitled to
evict the respondent on the ground of bona fide need under s.11(3) of the Act.
Feeling aggrieved by the said decision of the High Court, the appellant has
filed this appeal.
As
indicated earlier, although the appellant had sought eviction of the respondent
under s.11(3) as well as s.11(4)(ii), but the Rent Controller and the Appellate
Authority have both found against him on s.11(4)(ii). The scope of the present
appeal is confined to the question whether the respondent is liable to be
eviction on the ground of bone fide need of the appellant for his personal
occupation under s.11(3) of the Act. Sub-section (3) of s.11 of the Act and the
second proviso thereto provide as follows:
"(3)
A landlord may 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
the building for his own occupation or for the occupation by any member of his
family dependent on him:
XXX XXX
XXX Provided further that the Rent Control Court shall not give any direction
to a tenant to put the landlord in possession, if such 75 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:
XXX XXX
XXX" At this stage, it may also be mentioned that in exercise of its revisional
jurisdiction under s.20 of the Act, the High Court can "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 of proceeding and may pass such
order in reference thereto as it thinks fit". It is no doubt true that the
scope of the revisional jurisdiction conferred under s.20 is wider than that
conferred under s.115 CPC. But at the same time, a revision under s.20 cannot
be equated with an appeal.
Moreover,
the revision power conferred under s.20 also embraces an order passed by the
Appellate Authority. While considering the provisions conferring revisional
power couched in a language similar to that contained in section 20 of the Act,
this Court has laid down that the power conferred on the High Court is
essentially a power of superintendence and despite the wide language employed,
the High Court should not interfere with the findings of fact of the
subordinate authority merely because it does not agree with the said findings.
[See : Dattonpant Gopalvarao Devakate v. Vithabrao Maruthirao Janagaval, [1975
Supp. SCR 67; M/s Sri Raja Lakshmi Dyeing Works & Ors v. Rangaswamy Chettiar,
AIR 1980 SC 1253]. The revisional Court must be reluctant to embark upon an
independent reassessment of the evidence and to supplant a conclusion of its
own, so long as the evidence on record admitted of and supported the one
reached by the court below. [See : Rajbir v. S. Chokesiri & Co., [1989] 1
SCC 19, at p.37] In the instant case, the Appellate Authority, after
considering the evidence on record, has found that the appellant had retired
from service and he has no building of his own in the city. The Appellate
Authority has further found that before the building was let out to the
respondent the same was being used for residential purposes and the mere fact
that it lacks in certain facilities for being used for residential purposes by
itself will not indicate that the claim of the appellant is false and from the
evidence on record, it would appear that after some modifications and repairs
it can be 76 used as a residential building.
In
view of the decision of the High Court in Devaky v. Krishnakutty, (1987) 1 Ker.
L.T. 671, the Appellate authority held that the appellant could claim eviction
of the building under s.11(3) even if the building in question requires some
modifications or alterations provided that he is able to establish the bona
fide need set up by him. The Appellate Authority also held that merely because
the appellant was residing comfortably in a building owned by his son would not
disentitle him from seeking eviction on the ground that he wants to set up his
residence under a roof of his own and that such a desire was quite natural.The
Appellate Authority also observed that the testimony of appellant, as P.W>
1, with regard to his bona fide requirement of the building for his residence
could be believed and the mere bald assertion of the respondent, as R.W.1, that
there was no bona fide need on the part of the appellant, by itself, was not a
sufficient ground to disbelieve the testimony of the appellant. In the light of
the aforesaid finding, the Appellate Authority held that the appellant had
succeeded in establishing the bona fide need set up by him.
The
High Court, in exercise of its revisional power, has set aside the aforesaid
findings recorded by the Appellate Authority for the following reasons:
(1)
The appellate Authority had erroneously proceeded on the basis that there is no
pleading by the respondent that the bona fide requirement set up by the
appellant is false;
(2)
Instead of examining severally the circumstances relied upon by the Rent
Controller and to see whether they were sufficient to support the finding of
the Rent Controller, the Appellate Authority should have considered the
cumulative effect of all the facts and circumstances established in the case on
the question of bona fides of the claim made in the petition; and (3) The
Appellate Authority had totally omitted to consider whether the
respondent-tenant was entitled to the benefit of the second proviso to
sub-section (3) of s.11 of the Act.
On a
consideration of the pleadings and evidence the High Court found that the
appellant is the owner of 13 cents of land and only a small portion of the said
land in occupied by the buildings and the remaining 77 land is lying vacant
behind the building and structures sought to be recovered and the appellant can
construct a house over it. The High Court has also found that the appellant is
living in reasonable spacious residential accommodation with modern amenities
with his son and it is difficult to believe that the claim as put forward by
the appellant in the petition is honest in the circumstances of the case. The
High Court further held that the building sought to be recovered is admittedly
used for commercial purposes from 1971 onwards and it is a 'L' shaped structure
consisting of two halls and a temporary shed which is being used as the kitchen
of the hotel and there is no latrine or bathroom in the building and that in
view of the nature, location and structural peculiarities of the buildings,
absence of essential amenities like latrine, bathroom and privacy, the very
limited space available for occupation and the status of the respondent as a
person who retired after a period of 30 years of service as well placed
employee of a wellknown company, the assertion of the appellant that he is
ready to live in any condition could not be accepted as true and genuine. The
High Court was of the view that the principle laid down in the decision in Devaky
v. Krishnakutty (supra) would not help appellant in this case.
The
question whether the building is required bona fide by the appellant for his
own residence is primarily one of fact and the finding recorded by the
Appellate Authority after considering the evidence on record could not be
interfered with by the High Court in exercise of the revisional jurisdiction
under Section 20 of the Act because it could not be said that the said finding
recorded by the Appellate Authority was not supported by the evidence on
record. The said finding was reversed by the High Court on the basis of a reassessment
of the said evidence. We find it difficult to agree with the reasons given the
High Court for embarking on this reassessment of evidence. Although the
Appellate Authority has observed that there in no specific pleading by the
respondent in the counter that the bona fide requirement set up by the
appellant is false but in spite of the said observation the Appellate Authority
has examined whether the said claim of the appellant is false and after
considering the evidence adduced by both the parties, the Appellate Authority
has found that the claim of the appellant is not false. Similarly, the High
Court is not right in holding that in its approach to the question of bona
fides of the claim made in the petition the Appellate Authority has not considered
the cumulative effect of all the facts and circumstances established in the
case. On a consideration of the various circumstances the Appellate Authority
chose 78 of accept the testimony of the appellant, as P.W.1 as against that of
the respondent, as R.W.1 and on that basis found that the appellant had
succeeded in establishing the bona fide need set up by him.
The
consideration which weighed with the High Court in taking a view contrary to
that taken by the Appellate Authority do not, in our opinion, justify
interference in exercise of revisional jurisdiction. That the appellant has
been living with his son in the house belonging to him (son) cannot lead to the
inference that the claim of the appellant that he wants to live in a house of
his own is false and not bonafide. The same is true about the building in
question not having the requisite facilities and being not in a fit condition
for residence because the appellant can make suitable repairs and alterations
in the same to make it fit for residential purposes. The claim of the landlord
that he needs the building bona fide for his personal occupation cannot be negatived
on the ground that the building require repair and alterations before the
landlord can occupy the same. In Devaky v. Krishnankutty (supra), it has been
observed:
:....once
the landlord establishes that he bona fide required the building for his
occupation or the occupation of any member of his family, he can recover
possession of the building from the tenant irrespective of the fact whether he
would occupy the same with or without making any alterations." (p.673) We
are in agreement with this view which is in consonance with the decision of
this Court in Ramniklal Pitambrardas Mehta v. Indradaman Amratlal Sheth, [1964]
8 SCR 1. In that case, it has been laid down:
"....The
mere fact that he intends to make alterations in the house either on account of
his sweet will or on account of absolute necessity in view of the condition of
the house, does not affect the question of his requiring the house bona fide
and reasonably for his occupation, when he has proved his need for occupying
the house. There is no such prohibition either in the language of cl.(g) or in
any other provision of the Act to the effect that the landlord must occupy the
house for residence without making any alterations in it.
There
could not be any logical reason for such a prohibition."(p.5) Similarly in
sub-section (3) of section 11 there is no prohibition that 79 a landlord must
occupy the house for residence without making any alterations in it. The
finding recorded by the Appellate Authority, after considering the pleadings
and evidence on record, that the appellant has succeeded in establishing that
he needs the building bona fide for his own occupation must, therefore, be
restored.
The
High Court was, however, right in taking the view that before passing a decree
for eviction on the ground of bona fide need of the landlord under section
11(3) of the Act, it was necessary for the Appellate Authority to consider whether
the tenant was entitled to the benefit of the second proviso to sub-section (3)
of section 11 of the Act and that the Appellate Authority has omitted to
consider the matter from this angle. The said proviso precludes the passing of
an order for eviction of a tenant who is depending for his livelihood mainly
from the trade or business carried on in such building and there is no other
suitable building available in the locality for him to carry on such trade or
business. After adverting to the second proviso to sub-section (3) of section
11, the Rent Controller has observed:
"...The
respondent has proved that he is depending upon the income from the business
conducted in the petition schedule building for his livelihood. The petitioner
attempted to prove that the respondent is having other hotels elsewhere in the
city, but without any success. Though the respondent has not taken any steps to
prove the non-availability of other suitable buildings in the locality by
summoning the Accommodation Controller, I do not thing that was a fatal lapse
on the part of the respondent because he has adduced evidence in that regard
through his witnesses." The learned Rent Controller has, however, not
recorded any definite finding on this question because he had come to the
conclusion that the appellant had failed to prove the bona fide need of the
buildings. Since the Appellate Authority had reversed the finding recorded by
the Rent Controller on bona fide need of the appellant for the building, it was
necessary for the Appellate Authority to have considered the matter in the
light of the second proviso to sub-section (3) of section 11 and it should have
recorded a finding on the question whether the respondent could invoke the
protection of the said proviso. In the circumstances, we are of the view 80
that the matter should be remanded to the Appellate Authority for considering
the question whether the respondent can invoke the protection of the second
proviso to section 11(3) of the Act.
In the
result, the appeal is allowed. The judgment and order of the Kerala High Court
dated January 4, 1991 is set aside. The order of the Appellate Authority dated
July 18, 1990 to the extent it directs the eviction of the respondent under
Section 11(3) of the Act is also set aside and the matter is remanded to the
Appellate Authority for considering the matter in the light of the second
proviso to section 11(3) of the Act. It is, however, made clear that we are not
upsetting the finding recorded by the Appellate Authority that the building is
required bona fide by the appellant for his own occupation. The parties are
left to bear their own costs.
V.P.R.
Appeal allowed.
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