Holding

The High Court must not interfere with the Appellate Authority’s factual finding of bona‑fide need, but the matter must be remanded to determine if the tenant is protected by the second proviso to section 11(3).

Summary

The landlord, K.A. Anthappai, sought eviction of his tenant, C. Ahmed, under sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, claiming the building was needed bona‑fide for his residence after retirement. The Rent Controller dismissed the petition, finding no bona‑fide need and no damage to the property, but the Appellate Authority reversed that finding, holding the landlord had established a bona‑fide need despite the building requiring repairs. The High Court, exercising revisional jurisdiction under section 20, set aside the Appellate Authority’s finding and also noted that the second proviso to section 11(3) – protecting a tenant whose livelihood depends on the premises – had not been considered. The Supreme Court held that the High Court could not reassess the factual finding of bona‑fide need and restored the Appellate Authority’s finding, but remanded the matter for the Appellate Authority to examine the applicability of the second proviso. Consequently, the appeal was allowed, the High Court’s order set aside, and the case sent back for further consideration.

Issues considered

The scope of revisional jurisdiction under section 20 of the Kerala Buildings (Lease & Rent Control) Act versus section 115 of the CPC.
Whether a revisional court may re‑evaluate evidence and overturn factual findings of a subordinate authority.
Whether a landlord’s claim of bona‑fide need is negated when the building requires repairs or alterations.
Whether the second proviso to section 11(3) bars eviction when the tenant depends on the premises for livelihood and no alternative premises are available.
Whether the Appellate Authority was required to consider the second proviso before granting eviction.

Legislation cited

Code of Civil Procedure, 1908s. 115
Kerala Buildings (Lease & Rent Control) Act, 1965s. 11(3), s. 11(4)(ii), s. 20

Subjects

landlord‑tenantevictionbona fide needrevisional jurisdictionKerala Buildings Actsecond provisorent controlevidentiary assessment

Judgment

A K.A.ANTHAPPAI
v. ~
C.AHAMMED

MAY 5, 1992

B [T. K. THOMMEN AND S.C. AGRAWAL, JJ.]

Kera/a Buildings (Lease & Rent Control) Act, 1965-Section 20 and
)--
Section 115, Code of Civil Procedure, 1908--R.evisional jurisdiction unde,-
Distinction--Revisional powers-Nature and scope of-Reassessment of
c evidence by revisional court-Legality of.

Kera/a 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.
-\ ~
D Kera/a Buildings (Lease & Rent Control) Act, 1965-Section 11(3)-
Whether tenant entitled to the benefit of second provis~Appreciation by
Appellate Authority-Necessity of.

_The appellant's father let out the disputed building wherein the
tenant-respondent carried out the hotel business. _
E -4....
'
The appellant-landlord filed an eviction petition on 15.1.81 before
the Rent Controller stating that after his retireinent from service on
30.9.1981, he wanted to settled 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
F 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 pl~t in his wife's
name within the town; that there was a lot of vacant land on the back side
G
of the qnanted building, which was suitable for house construction and
that the property was not being used In such a way as to reduce Its utlllty.
--"'""'\....
The trial court dll1ml_111ed the eviction petition or the landlord, hold·
ln1 that 11 be failed In provln1 hl1 bona ftd1 need of the bulldln1, the
H landlord wa1 not entitled to an order of eviction under Section 11(3) of the
70
K.A ANTIIAPPAI v. C. AHAMMED 71

Kerala Buildings (Lease & Rent Control) Act, 1965 and as the landlord A
failed to prove that the tenant was using the building in such a way to
destroy its value and utility, he was notentitled to an order under section
11(4)(ii) or the Act.

On appeal, the Appellate Authority reversed the order of the Rent
Controller. B
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 C
...- on the ground of bona fide need ~f the appellant for his personal
occupation under section 11 (3) of .the Act, this Court allowing the
landlord's appeal,
- • .L
HELD: 1.1. The scope of the revisional jurisdiction conferred under D
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 CJ
1.2. The revisional power conferred on the High Court is essentially
a power of superintendence and des_pite the wide language employed, the E
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 Devak_ate v. Vithabra_o Maruthirao Janagaval,
(1975) Supp. SCR 67; M/s. Sri Raja Laks~mi Dyeing Works & Ors. v.
Rangaswamy Chettiar, AIR 1980 SC 1253, followed . F

...-4..... 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 be the court below. (75 F] G
Rajbir v. S. Chokesiri & Co., (1986) 1SCC19 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 H
72 SUPREME COURT REPORTS [1992) 3 S.C.R.

A 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 t-.e said finding recorded by the Appellate Authority was not
supported by the evidence on record. (77 EJ

2.2. 1be fact that· the appellant has been living with his son in the
B 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 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
C same to make it fit for residential purposes. [78 B-CJ

2.3. 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 requires repairs and alterations before the landlord can occupy
the same. (78 DJ
D
2.4. There is no prohibition that a landlord must occupy the house
for residence without making any alterations in it. (78 H • 79AJ

Devaky v. Krishnankutty, (1987) 1K.L.T.671, approved.
E Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth, [1964J
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
F the Appellate Authority to consider whether th.e 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
G the locality for him to carry on such trade on business. (79 CJ

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 cosidering the question whether the respondent can invoke '" -I..,,
the protection of the second proviso to sectio_!l 11(3) of the Act.
H (79 G • 80A]
K.A. ANTIIAPPAI v. C. AHAMMED (AGRAWAL, J.] 73

CIVIL APPELLATE )URISDICTION: Civil Appeal No. 1945 of A
J--- 1992.

From the Judgment and Order dated 4.1.1991 of the Kerala High
Court in C.R.P. No. 1830 of 1990.

Mathai M. Paikeday and C.N. Sreekumar for the Appellant. B
P.S. Poti and Ms. Malini PoduvaJ for the Respondent.
- -'
The Judgment of the Court was delivered by

S.C. AGRAWAL, J. Special leave granted~ c
This appeal filed by the landlord arises out of a petitjbn filed under
Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Con-
trol) Act, 1965 (hereinafter referred to as 'the Act') for the eviction of the
respondent from the building situate in the city of Cochin.
D
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 B cents 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 Con- E
troller, Ernakulam on January 15, 1981 wherein the appellant pleaded that
after his retirement from service, he wanted to settle down in Cochin and
except th~ 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 F
in such' a manner as to materially and permanently reduce its value, utility
alld 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 G
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

•
res~dence of the appellant and his family members and further tl~ere 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 bis order dated February 20, H
74 SUPREME COURT REPORTS [1992) 3 S.C.R.

A 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
B 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 responden( under s.11(4)(ii) of the Act but it disagreed
C 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
1
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
·-~-
D 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.

E 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
.F
(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
G 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
H direction to a tenant to put the landlord in possession, if such
K.A ANTHAPPAI v. C. AHAMMED (AGRAWAL, J.) 75

tenant is depending for his livelihood mainly on the income A
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''
B
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 C
pass such order in reference thereto as it thinks fit". It is no doubt true that
the scope of the revisionaljurisdiction 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 revisional power
conferred under s.20 also embraces an order passed by the Appellate D
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 E
findings. (See : Dattonpant Gopalvarao Devakate v. Vithabrao Maruthirao
Janagava~ (1975) Supp. SCR 67; Mis 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 F
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 G
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 mer~ 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 H
76 SUPREME COURT REPORTS [1992] 3 S.C.R.

A 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
B 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
a
residence under a roof of his own and that such desire was quite natural.
The Appellate Authority also observed that the testimony of appellant, as
P.W. 1, ~th regard to his bona fide requirement of the building for his
.C 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
D by him. .

The High Court, in exercise ofits revisional power, has set aside the
aforesaid findings recorded by the Appellate Authority for the following
reasons:

E (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
F finding of the Rent Controller, the Appellate Authority should have con-
sidered. 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

G .(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 sm!lll
H ·portion of the said land in occupied by the buildings and the remaining
K.A ANlHAPPAI v. C. AHAMMED [AGRAWAL, J.] n
land is lying vacant behiD.d the building and structures sought to be A
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 B
purposes from 1971 onwards and it is a 'L' shaped structure consisting of
- _j 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 pecularities of the buildings, absence
of essential amenities like latrine, bathroom and privacy, the very limited C
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: well known 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 D
Devaky v. Krishnakutty (supra) would not help the 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 Authotjty after considering the evidence on E
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
1

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 embraking on F
this reassessment of evidence. AlthQugh the Appellate. Authority has ob-
served that there in no specific pleading by the respondent in the counter
that the bona fide requirement set u~ 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 I and after considering the evidence G
adduced by both the parties, the Appellate Authority has found that the
claim of the appellant is not false. Sifilarly, the High Court is not right in
holding that in its approach to the qupstion of bo~a fides of the claim made
in the petition the Appellate Author~ty has not consi.~ered the camulative
effect of all the facts and circumstances established in the case. On a
consideration of the various circums~ances the Appellate Authority chose H
78 SUPREME COURT REPORTS (1992] 3 S.C.R.

A of accept the testimony of the appellant, as P.W.1 as against that of the
re~pondent, 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 considerations which weighed with the High Court in taking a
view contrary to that taken by the Appellate Authority do not, in our
B 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 waµts
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
c 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 purpos~s.
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 repairs and alterations before the landlord can occupy the same.
In Devaky v. Krishnankutty (supra), it has been observed:
D
"..... once the landlord establishes that he bona fide requires 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
E 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 Pitambardas Mehta v. Indradaman

F
Amratlal Sheth, (1~64] 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
G
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 alerations in it. There could not be any -.,...J..,,_·
logical reason for such a prohibition."(p.5)

H Similarly in sub-section (3) of section 11 there is no prohibition that
K.A. ANTHAPPAI v. C. AHAMMED [AGRAWAL, J.] 79

a landlord must occupy the house for residence without making any altera- A
tions in it. The finding recorded by ~he Appellate Authority, after consider-
ing 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 B
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. C
The said proviso precludes the pas~ing of an order for eviction of a tenant
who is depending for his livelihobd 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 D
has observed: . I ·
".....The respondent has proved that he is depending upon the
income from the business conducted in the petition schedule
building for his livelihdod. The petitioner attempted to prove
that the respondent is having other hotels elsewhere in the city, E
but without any success. Though the respondent has not taken
any steps to prove the non-availability of other suitable build-
ings in the locality by sJmmoning the Accommodation Control-
ler, I do not thing that was a fatal lapse on the part of the
respondent because h¢ has adduced evidence in that regard F
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 G
Appellate Authority had reversed the finding recorded by the Rent Con·
troller 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 sc~ond prnvi5o to 3UlNec:tion (3) of 5ec:tion 11 and it should have
recorded a rindinJ on the question whether the respondent could invoke
the protection of the said proviso. In the circumstances, we are of the-view H
80 SUPREME COURT REPORTS (1992) 3 S.C.R.

A that the matter should be remanded' to the Appellate Authority for con-
sidering 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
B 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
C .Authority that the building is required b'?na fide by the appellant. for his
own occupation. The parties are left to bear their own costs.

V.P.R. Appeal allowed.

-~-