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PETITIONER: K.A. ANTHAPPAI

       Vs.

RESPONDENT: C. AHAMMED

DATE OF JUDGMENT05/05/1992

BENCH: AGRAWAL, S.C. (J) BENCH: 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.

HEADNOTE:      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

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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

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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

JUDGMENT:      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

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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

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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

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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

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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

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        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.                                                    81