The Kerala High Court has reiterated that the power exercisable by a High Court under Section 25 of the Kerala Buildings (Lease and Rent Control) Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below.
A Division Bench of Justice Anil Narendran and Justice K Babu remarked:
“…it cannot be said that the order of eviction passed by the Rent Control Court, which now stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity, warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below.”
While dismissing a revision petition filed under the Act, the Court added that when a person other than the tenant is found to be in the building, the burden is on the tenant to show that there is no sub-lease or transfer of possession.
Factual Background:
A landlord couple had moved a petition before the Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of their tenant from the scheduled shop room on the ground that he transferred its possession to an alleged sub-tenant without their knowledge or consent.
The bona fide need projected in the said petition was that the landlords wanted to start a jewellery business in the scheduled room and the adjacent shop room.
Allowing the petition, the Rent Control Court found that the tenant had transferred possession and exclusive right of the petition schedule shop room to the sub-tenant after collecting some amount. Therefore, it was found that the landlords were entitled to an order of eviction.
The tenant approached the Rent Control Appellate Authority challenging the order of eviction, but the appeal was dismissed.
Aggrieved by such dismissal, the tenant filed a Rent Control Revision before the High Court, invoking the revisional jurisdiction under Section 20 of the Act.
Observations of the Court:
The primary issue that arose for consideration in the revision petition was whether any interference is warranted on the order of eviction granted by the Rent Control Court which was confirmed by the Rent Control Appellate Authority.
- Bonafide Requirement For Occupation
The Court recalled upon referring to a group of landmarked decisions that a bona fide requirement must be an outcome of a sincere and honest desire, and not a mere fanciful or whimsical desire.
During cross-examination, it was found that nothing could be brought out to discredit the version of the landlords as to the bona fide need projected in the Rent Control Petition.
The tenant had contended that since the landlords have extensive landed property and are getting considerable rental income, they have no genuine need for vacant possession of the petition schedule shop room.
However, the Bench reiterated that the fact that a landlord is an affluent person is of no consequence if he proves the bona need for his own occupation projected in the Rent Control Petition, thereby finding no merit in the contention of the tenant.
Similarly, it was ruled that the death of one of the landlords during the pendency of the appeal was not a subsequent event of such a magnitude as to completely eclipse the bona fide need projected in the Rent Control Petition.
- The Onus of Proof of Sub-letting
As per Section 11(4)(i) of the Act, a landlord may seek an eviction order if the tenant, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof.
According to the landlord, on enquiry with the alleged sub-tenant, he himself disclosed the sub-lease and revealed that about seven years back the tenant had closed down the shop and transferred possession to the sub-tenant.
Thereafter, the sub-tenant had started the shop under the name ‘Mangalyapattu’. It was also noted that at the time of inspection of the Advocate Commissioner, the name of the shop was ‘Mangalyapattu’.
Going by the verdict pronounced in Bharath Sales Ltd. v. Life Insurance Corporation of India [(1998) 3 SCC 1], the Court noted that it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant.
It was further found by the Bench that the law does not require any payment between the tenant and the sub-tenant to be proved by affirmative evidence.
The panel asserted that when a person other than the tenant is found to be in the building, the burden is on the tenant to show that there is no sub-lease or transfer of possession.
In this case, the landlord was able to discharge the initial burden of proving sub-letting of the petition schedule shop room in favour of the alleged sub-tenant and that, a third party is in exclusive possession of the tenanted premises and that, the tenant has no legal possession of that premises.
Thereafter, the onus shifted to the tenant to prove the nature and occupation of the alleged sub-tenant, which he failed to establish. For this reason, the Court confirmed the position of the Rent Control Court.
- Revisional Powers Of High Court under Rent Act:
Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision and lays down that the High Court may call for and examine the records relating to any order passed or proceedings taken by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings,
Upon considering the revisional powers of the High Court under Rent Acts, it was brought to the notice of the Court that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below.
As per the Supreme Court decision in Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]: the High Court’s consideration of the evidence is confined to find out legality, regularity and propriety of the order impugned before it.
Similarly, reliance was placed on Thankamony Amma v. Omana Amma [AIR 2019 SC 3803] to rule that a High Court could not re-appreciate the evidence and the concurrent findings rendered by the courts below ought not to be interfered with by the High Court while exercising revisional jurisdiction.
On the said grounds, the Court observed:
“…it cannot be said that the order of eviction passed by the Rent Control Court, which now stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity, warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below.”
Accordingly, the petition was dismissed.
Case Title: T.P Gireeshbabu v. Jameels & Ors.
