ADDISSERY RAGHAVAN versus CHERUVALATH KRISHNADASAN

[2020] 6 S.C.R.

ADDISSERY RAGHAVAN

CHERUVALATH KRISHNADASAN

(Civil Appeal Nos. 2528-29 of 2020)

BJUNE 08, 2020

[R. F. NARIMAN, NAVIN SINHA AND B. R. GAVAI, JJ.]

Kerala Building (Lease and Rent Control) Act, 1965 – s.11(8),20 – Revisional jurisdiction of High Court – Appellant was tenantof two shop rooms – Eviction petitions filed by respondent wereCdecreed by trial court on his bonafide requirement of additionalaccommodation for business – Reversed by Rent Control AppellateAuthority – Set aside by High Court – Held: Appellate Authority’sfinding that some of the rooms in respondent’s occupation were lyingvacant based on the Commissioner’s Report was not perverse andDputs paid to any bonafide requirement of additional accommodationof the respondent – Similar finding based on Building TaxAssessment Register also could not have been interfered by HighCourt – Appellate Authority also rightly found that the appellantcannot be considered to be in possession of room leased by hismother-in-law in another building only because he had herEpermission to store goods when necessary – Interfering with thisfinding of fact, without any perversity or misappreciation of evidenceby the Appellate Authority was outside High Court’s revisionaljurisdiction – Equally, the finding of comparative hardship, findingof fact not otherwise perverse could not have been upset in theFmanner as done by High Court – Judgment of High Court set asidewhile that of the Appellate Authority is restored.

Allowing the appeals, the Court

HELD: 1.1 When the Appellate Authority relied upon theCommissioner’s Report stating that there are 36 rooms in theGbuilding and that the majority of the rooms are let out, showingthat some of the rooms in the occupation of the landlord are lyingvacant, it cannot be said that there is any perversity in this findingof fact. Even assuming that the High Court is correct in itsconstruction of Section 11(8) of the Kerala Rent Control Act,

stating that vacant rooms in other buildings cannot be looked at,this finding of fact of the Appellate Authority puts paid to anybonafide requirement of additional accommodation of the landlordin the facts of the present case. The reliance upon the BuildingTax Assessment Register by the Appellate Authority, showingthat some of the rooms belonging to the landlord were lyingvacant, again, is finding of fact which cannot be interfered within the manner done by the High Court. Further, the finding that aroom leased by the mother-in-law of the tenant in another buildingis not in tenant’s possession only because he had his mother-in-law’s permission to store goods when necessary, and especiallyduring festival occasions, on temporary basis. Interfering withthis finding of fact, again, without any perversity or misappreciationof evidence by the Appellate Authority would clearly be outsidethe High Court’s ken in its revisional jurisdiction. Equally, thefinding of comparative hardship, which is finding of fact nototherwise found to be perverse, cannot be upset in the mannerdone by the High Court. [Paras 10, 11][450-D-H; 451-A]

Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh(2014) 9 SCC 78 : [2014] 14 SCR 1379 – followed.

Ram Dass v. Ishwar Chander (1988) 3 SCC 131 : [1988]1 Suppl. SCR 239 – relied on.

Badrinarayan Chunilal Bhutada v. GovindramRamgopal Mundada (2003) 2 SCC 320 : [2003] 1 SCR329; Rukmini Amma Saradamma v. Kallyani Sulochana& Ors. (1993) 1 SCC 499 : [1992] 3 Suppl. SCR 579 –referred to.

Piper v. Harvey (1958) 1 All ER 454 – referred to.

ACIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2528-29 of 2020.

From the Judgment and Order dated 25.07.2017 of the High Courtof Kerala at Ernakulam in RCRev. No. 377 of 2016 and 378 of 2016.

K. Rajeev, Abid Ali Beeran P, K.M. Firoz, Sarath Janardhan, Advs.Bfor the appearing parties.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. Leave granted.C

2. In the present case, the appellant is the tenant of two shoprooms – one on the ground floor and the other on the first floor, eachadmeasuring 60 square feet. The tenant is doing textile business in theroom situated on the ground floor, using the first floor as godown. Theground floor room was let to the tenant on 10.10.1991 at monthly rentDof Rs.300/- which was later enhanced to Rs.800/-. The first floor roomwas let to the tenant on 10.07.1998 at monthly rent of Rs.250/- whichwas later enhanced to Rs.317/-.

3. The respondent-landlord filed eviction petitions being RCP No.175/2013 as well as RCP No.176/2013 on 11.10.2013 in respect of theEtwo rooms in question. The said petitions were filed on three grounds,namely, arrears of rent, bonafide requirement for additionalaccommodation for the landlord’s business, and material damage to thepremises, under Sections 11(2)(b), 11(8) and 11(4)(ii), respectively, ofthe Kerala Building (Lease and Rent Control) Act, 1965 [“Kerala RentControl Act”].F

4. The trial court in its judgment dated 28.02.2015, held againstthe landlord on the first and the third ground. However, so far as bonafiderequirement of additional accommodation was concerned, it was heldby the trial court that the landlord is the Managing Partner ofM/s Prabeesh Constructions, and that since the office of this firm wasGpresently only in small room in the same building, the other two roomswould be required by way of additional accommodation for installingstaff members and materials. The trial court found that theCommissioner’s Report in the present case did not point out that anyparticular rooms were vacant in the premises. Equally, the production ofHExhibit B3, i.e., the Building Tax Assessment Register, which recorded

that some rooms in the ownership of the landlord are vacant could notbe relied upon. Further, it was held that the tenant had in his possessionanother room in neighbouring building, albeit leased by his mother-in-law, and stating that, since the mother-in-law was not examined by thetenant, the reasonable inference that could be drawn is that the aforesaidroom is in possession of the tenant. Finally, on comparative hardship, thetrial court held that the landlord will be able to run his establishment in abetter manner, whereas the tenant is not able to establish much hardshipcaused to him. In this view of the matter, the eviction petitions weredecreed under Section 11(8) of the Kerala Rent Control Act.

5. The Rent Control Appellate Authority, by its judgment dated30.01.2016, reversed the judgment of the trial court. It held:

“12. According to the appellant, if at all the respondent needs anyrooms for the purpose of expanding his office, suitable rooms areavailable in his possession. It has come in evidence that in thebuilding in which the petition schedule rooms are situated, thereare as many as 36 rooms. According to the appellant, the samerooms are lying vacant in this building. The respondent woulddeny the contention. But in Ex.C1 report, the Commissioner onlywould say that majority of the rooms in the building are leasedout. This shows that some of the rooms in the occupation of thepetitioner are lying vacant. It is true that the Commissioner hasnot specified the number of rooms lying vacant. The appellantalso could not point out the number of the rooms lying vacant inthe possession of the petitioner.”

Apart from this, it also relied upon several vacant rooms beingavailable in several other buildings owned by the landlord. So far asExhibit B3 is concerned, the trial court’s finding was reversed, stating:

“16. The lower court has blamed the appellant for not producingany documents to show that vacant rooms are available in thepossession of the respondent. I cannot agree with the observationmade by the lower court. When there is an admission by PW1that there are vacant rooms, there is no need to produce anydocument. It can also be seen that the appellant has producedEx.B3 series document Building Tax Assessment Register. It wouldshow that some of the rooms belonging to the respondent arelying vacant. The lower court refused to rely upon Ex.B3 series,observing that though the petition schedule shop rooms are

admittedly in the possession of the appellant, one of the rooms isshown as lying vacant. It is for the landlord to report about theoccupation of the rooms to the Panchayat. Without doing that, hecannot blame the respondent or take advantage of the absence ofentry regarding the occupation of the building in the Building TaxAssessment Register.”

On these grounds, therefore, the bonafide requirement of thelandlord for additional accommodation was turned down by the AppellateAuthority. So far as the room leased by the mother-in-law of the tenantis concerned, and on comparative hardship, the Appellate Authority found:

C“18. … Even if it is conceded for moment that the need of therespondent is bonafide, I am of the view that the hardship whichwould be caused to the tenant would outweigh the advantage tothe landlord in case of eviction of the petition schedule shop rooms.While answering point No.1 it has been found that the respondenthas constructed building having 99 rooms on the PantheerankavuD–bypass road and all those rooms are lying vacant. Only for thereason that construction of the building is not complete, the claimof the appellant that the vacant space is available in the possessionof the respondent cannot be ignored. It has also come in evidencethat vacant shop rooms are available in the Shyamala BuildingEbelonging to the petitioner at the time of filing the petition. It wasonly after the institution of the petition that the respondent wouldrelease his right in the building to his children as per Ext.A13document. Here is fight between landlord, person having100 rooms at his disposal, and tenant, who is conducting pettytextile business. So, without much hesitation, it can be found thatFthe hardship that would be caused to the appellant wouldnecessarily outweigh the advantage obtained by the respondenton eviction of the appellant from the petition schedule shop rooms.

19. The lower court has observed that the tenant has vacant roomsavailable in the locality to shift his business. It is true that there isGno convincing evidence before the court to show that the vacantrooms are not available in the locality to shift the business beingrun in the petition schedule shop rooms. For the failure on the partof the appellant to prove that vacant rooms are not available inthe locality to shift the business, it cannot be said that the hardshipHthat would be caused to him would not outweigh the advantagethat would be received by the landlord.20. The lower court has also observed that the building belongingto one Abdul Rehman is in the occupation of the tenant. Thisobservation has been made by the lower court relying on theinconsistency in the stand taken by the tenant. In the counter,what has been stated is that the said room in the building ownedby Abdul Rehman was taken on lease by his mother-in-law. Butin the evidence, the stand taken by the appellant is that it wastaken on lease by one Prameela and he used to keep his textilegoods in the said room when space in the petition schedule shoprooms is not sufficient especially during festival occasions. I amof the view that only for this inconsistency, the case of therespondent that the appellant is in occupation of the room in thebuilding owned by Abdul Rehman cannot be accepted. What hasbeen stated by the tenant when he was examined as RW1 in thelower court is that when there was huge stock which could not bekept in the petition schedule shop rooms, he used to keep thestock in the room situated in the building owned by Abdul Rehmanon temporary basis. He also would speak that like this, he usedto keep the stock-in-trade in some other rooms also for there is alack of space in the petition schedule shop room in the festivalseason. Any way from this evidence, it cannot be said that theappellant is in vacant possession of another room which is suitablefor the business being conducted in the petition schedule shoprooms. So I find that the lower court is not at all justified in findingthat the hardship that would be caused to the tenant would notoutweigh the advantage that would be received by the landlord ongetting eviction of the petition schedule premises. So I find thatthe order of eviction passed by the trial court under Section 11(8)is liable to be set aside.”

6. In revision petition filed by the respondent-landlord underSection 20 of the Kerala Rent Control Act, the High Court interferedwith the findings of fact by the Appellate Authority by posing twoquestions before itself, namely:

“(1) What is the scope and extent of enquiry under Section 11(8)of the Act? (2) Where the landlord is occupying part of thebuilding in which the petition schedule building is situated, whetherthe availability of other vacant room, in his possession, in anyother building would negative his claim under Section 11(8) of theAct?”

AAfter stating that Section 11(8) of the Kerala Rent Control Actspeaks of vacant space or rooms in the same building, it was held thatthe Appellate Authority was wrong in considering vacant rooms in otherbuildings. So far as the Commissioner’s Report was concerned, the HighCourt reiterated the findings of the trial court, stating that theCommissioner had not reported the availability of any vacant room, andBthat the burden is on the tenant to show that the landlord had in hispossession other vacant rooms. So far as Exhibit B3, being the BuildingTax Assessment Register is concerned, it was held that the entries in thesaid Register cannot be taken as conclusive proof and must therefore bediscarded. On comparative hardship, the High Court agreed with theCtrial court, holding:

“13. Similarly, it has come out in evidence that the tenant hasbeen in occupation of another room in the building owned by oneAbdul Rehman. In the Rent Control Petitions, the landlord hasspecifically stated that he is in occupation of another shop room inDthe building of the said Abdul Rehman. So, if an order of evictionis passed, he will not be put to any hardship. The tenant’soccupation in the building owned by Abdul Rehman has come outin evidence. In that view, we find that the Rent Control Court isjustified in finding that the hardship that may be caused to thetenant, if an order of eviction is passed, would not outweigh theEadvantage to the landlord.”7. We have heard learned counsel appearing for the parties. Thelearned counsel appearing on behalf of the appellant pointed out thatunder Section 20 of the Kerala Rent Control Act, the High Court, in itsrevisional jurisdiction, cannot act as if it is second court of first appealFby setting aside findings of fact by the Appellate Authority onreappreciation of the same. He also argued that there being no perversityon the detailed findings given by the Appellate Authority, the High Courtexceeded its revisional jurisdiction in interfering with the same and wronglysubstituting the findings of the trial court for those of the AppellateGAuthority. Learned counsel appearing on behalf of the respondent,however, relied strongly upon the trial court’s judgment and stated thatthe Appellate Authority perversely dealt with material facts on the recordand its judgement was, therefore, correctly set aside within the revisionaljurisdiction by the High Court. He relied upon the judgment inBadrinarayan Chunilal Bhutada v. Govindram RamgopalH

Mundada, (2003) 2 SCC 320 [“Badrinarayan”], in particular, paragraphs10 and 13 thereof.

8. Section 11(8) and Section 20 of the Kerala Rent Control Actare set out hereinbelow:

“11. Eviction of tenants.–

xxx xxx xxx

(8) landlord who is occupying only part of building mayapply to the Rent Control Court for an order directing any tenantoccupying the whole or any portion of the remaining part of thebuilding to put the landlord in possession thereof, if he requiresadditional accommodation for his personal use.

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Provided that, in the case of an application made undersub-section (8), the Rent Control Court shall reject the applicationif it is satisfied that the hardship which may be caused to thetenant by granting it will outweigh the advantage to the landlord.

xxx xxx xxx”

“20. Revision.—(1) In cases, where the appellate authorityempowered under Section 18 is Subordinate Judge, the DistrictCourt, and in other cases the High Court, may, at any time, on theapplication of any aggrieved party, call for and examine the recordsrelating to any order passed or proceedings taken under this Actby such authority for the purpose of satisfying itself as to thelegality, regularity or propriety of such order or proceedings, andmay pass such order in reference thereto as it thinks fit.

(2) The costs of and incident to all proceedings before the HighCourt or District Court under sub-section (1) shall be in itsdiscretion.”

9. It is important in cases like the present to first keep in mind theparameters of the revisional jurisdiction of the High Court. In HindustanPetroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 SCC 78, areference was made to five-Judge Bench of this Court by referenceorder dated 27.08.2009, which reads as follows:

“The learned counsel for the appellant has placed relianceon three-Judge Bench decision of this Court in Rukmini Amma

Saradamma v. Kallyani Sulochana [Rukmini AmmaSaradamma v. Kallyani Sulochana, (1993) 1 SCC 499] whereinSection 20 of the Kerala Rent Control Act was in question. It washeld in the said decision that though Section 20 of the said Actprovided that the Revisional Court can go into the ‘propriety’ ofthe order but it does not entitle the Revisional Court to reappreciatethe evidence. similar view was taken by two-Judge Bench ofthis Court in Ubaiba v. Damodaran [Ubaiba v. Damodaran,(1999) 5 SCC 645].

On the other hand the learned counsel for the respondenthas relied upon decision of this Court in Ram Dass v. IshwarCChander [Ram Dass v. Ishwar Chander, (1988) 3 SCC 131]which was also three-Judge Bench decision. It has been held inthat case that the expression ‘legality and propriety’ enables theHigh Court in revisional jurisdiction to reappraise the evidencewhile considering the findings of the first appellate court. similarDview was taken by another three-Judge Bench of this Court inMoti Ram v. Suraj Bhan [Moti Ram v. Suraj Bhan, AIR 1960SC 655].From the above it is clear that there are conflicting viewsof coordinate three-Judge Benches of this Court as to the meaning,Eambit and scope of the expression ‘legality and propriety’ andwhether in revisional jurisdiction the High Court can reappreciatethe evidence. Hence, we are of the view that the matter needs tobe considered by larger Bench since this question arises in alarge number of cases as similar provisions conferring power ofrevision exists in various rent control and other legislations, e.g.FSection 397 of the Code of Criminal Procedure. Accordingly, wedirect that the papers be placed before the Hon’ble the ChiefJustice for constituting larger Bench.”

After setting out the various revisional provisions under State RentControl Acts including Section 20 of the Kerala Rent Control Act, thisCourt approved an earlier judgment of this Court construing the KeralaRent Control Act in Rukmini Amma Saradamma v. KallyaniSulochana & Ors., (1993) 1 SCC 499, as follows:

“38. Rukmini [Rukmini Amma Saradamma v. KallyaniSulochana, (1993) 1 SCC 499] holds, and in our view, rightly that

even the wider language of Section 20 of the Kerala Rent ControlAct does not enable the High Court to act as first or secondcourt of appeal. We are in full agreement with the view of thethree-Judge Bench in Rukmini [Rukmini Amma Saradamma v.Kallyani Sulochana, (1993) 1 SCC 499] that the word “propriety”does not confer power upon the High Court to reappreciateevidence to come to different conclusion but its consideration ofevidence is confined to find out legality, regularity and proprietyof the order impugned [Kallyani Sulochana v. Saradamma, 1991SCC OnLine Ker 213 : (1991) 2 KLJ 105] before it. We approvethe view of this Court in Rukmini [Rukmini Amma Saradammav. Kallyani Sulochana, (1993) 1 SCC 499].”

xxx xxx xxx

“42. The observation in Ramdoss [Ramdoss v. K. Thangavelu,(2000) 2 SCC 135] that the High Court in exercise of its revisionaljurisdiction cannot act as an appellate court/authority and it isimpermissible for the High Court to reassess the evidence in arevision petition filed under Section 25 of the Act is in accord withRukmini [Rukmini Amma Saradamma v. Kallyani Sulochana,(1993) 1 SCC 499] and Sankaranarayanan [D.Sankaranarayanan v. Punjab National Bank, 1995 Supp (4)SCC 675]. Its observation that the High Court can interfere withincorrect finding of fact must be understood in the context wheresuch finding is perverse, based on no evidence or misreading ofthe evidence or such finding has been arrived at by ignoring oroverlooking the material evidence or such finding is so grosslyerroneous that if allowed to stand, will occasion in miscarriage ofjustice. Ramdoss [Ramdoss v. K. Thangavelu, (2000) 2 SCC135] does not hold that the High Court may interfere with thefindings of fact because on reappreciation of the evidence its viewis different from that of the first appellate court or authority. Thedecision of this Court in V.M. Mohan [V.M. Mohan v. PrabhaRajan Dwarka, (2006) 9 SCC 606] is again in line with thejudgment of this Court in Rukmini [Rukmini Amma Saradammav. Kallyani Sulochana, (1993) 1 SCC 499].”

So far as the judgment in Ram Dass v. Ishwar Chander, (1988)3 SCC 131, is concerned, the Court limited its finding as follows:

ABC

“32. Insofar as the three-Judge Bench decision of this Court inRam Dass [Ram Dass v. Ishwar Chander, (1988) 3 SCC 131] isconcerned, it rightly observes that revisional power is subject towell-known limitations inherent in all the revisional jurisdictionsand the matter essentially turns on the language of the statuteinvesting the jurisdiction. We do not think that there can ever beobjection to the above statement. The controversy centres roundthe following observation in Ram Dass [Ram Dass v. IshwarChander, (1988) 3 SCC 131], “... that jurisdiction enables thecourt of revision, in appropriate cases, to examine thecorrectness of the findings of facts also….” It is suggestedthat by observing so, the three-Judge Bench in Ram Dass [RamDass v. Ishwar Chander, (1988) 3 SCC 131] has enabled theHigh Court to interfere with the findings of fact by reappreciatingthe evidence. We do not think that the three-Judge Bench hasgone to that extent in Ram Dass [Ram Dass v. Ishwar Chander,(1988) 3 SCC 131]. The observation in Ram Dass [Ram Dass v.Ishwar Chander, (1988) 3 SCC 131] that as the expression usedconferring revisional jurisdiction is “legality and propriety”, theHigh Court has wider jurisdiction obviously means that the powerof revision vested in the High Court in the statute is wider thanthe power conferred on it under Section 115 of the Code of CivilProcedure; it is not confined to the jurisdictional error alone.However, in dealing with the findings of fact, the examination offindings of fact by the High Court is limited to satisfy itself thatthe decision is “according to law”. This is expressly stated in RamDass [Ram Dass v. Ishwar Chander, (1988) 3 SCC 131]. Whetheror not finding of fact recorded by the subordinate court/tribunalis according to law, is required to be seen on the touchstone whethersuch finding of fact is based on some legal evidence or it suffersfrom any illegality like misreading of the evidence or overlookingand ignoring the material evidence altogether or suffers fromperversity or any such illegality or such finding has resulted ingross miscarriage of justice. Ram Dass [Ram Dass v. IshwarChander, (1988) 3 SCC 131] does not lay down as propositionof law that the revisional power of the High Court under the RentControl Act is as wide as that of the appellate court or the appellateauthority or such power is coextensive with that of the appellateauthority or that the concluded finding of fact recorded by the

original authority or the appellate authority can be interfered withby the High Court by reappreciating evidence because RevisionalCourt/authority is not in agreement with the finding of fact recordedby the court/authority below. Ram Dass [Ram Dass v. IshwarChander, (1988) 3 SCC 131] does not exposit that the revisionalpower conferred upon the High Court is as wide as an appellatepower to reappraise or reassess the evidence for coming to adifferent finding contrary to the finding recorded by the court/authority below. Rather, it emphasises that while examining thecorrectness of findings of fact, the Revisional Court is not thesecond court of first appeal. Ram Dass [Ram Dass v. IshwarChander, (1988) 3 SCC 131] does not cross the limits of RevisionalCourt as explained in Dattonpant [Dattonpant GopalvaraoDevakate v. Vithalrao Maruthirao Janagaval, (1975) 2 SCC246].”

So holding, the five-Judge Bench answered the reference, thus:

“43. We hold, as we must, that none of the above Rent ControlActs entitles the High Court to interfere with the findings of factrecorded by the first appellate court/first appellate authority becauseon reappreciation of the evidence, its view is different from thecourt/authority below. The consideration or examination of theevidence by the High Court in revisional jurisdiction under theseActs is confined to find out that finding of facts recorded by thecourt/authority below is according to law and does not suffer fromany error of law. finding of fact recorded by court/authoritybelow, if perverse or has been arrived at without consideration ofthe material evidence or such finding is based on no evidence ormisreading of the evidence or is grossly erroneous that, if allowedto stand, it would result in gross miscarriage of justice, is open tocorrection because it is not treated as finding according to law.In that event, the High Court in exercise of its revisional jurisdictionunder the above Rent Control Acts shall be entitled to set asidethe impugned order as being not legal or proper. The High Courtis entitled to satisfy itself as to the correctness or legality orpropriety of any decision or order impugned before it as indicatedabove. However, to satisfy itself to the regularity, correctness,legality or propriety of the impugned decision or the order, theHigh Court shall not exercise its power as an appellate power to

Areappreciate or reassess the evidence for coming to differentfinding on facts. Revisional power is not and cannot be equatedwith the power of reconsideration of all questions of fact as acourt of first appeal. Where the High Court is required to besatisfied that the decision is according to law, it may examinewhether the order impugned before it suffers from proceduralBillegality or irregularity.

44. We, thus, approve the view of this Court in Rukmini [RukminiAmma Saradamma v. Kallyani Sulochana, (1993) 1 SCC 499]as noted by us. The decision of this Court in Ram Dass [RamDass v. Ishwar Chander, (1988) 3 SCC 131] must be read asCexplained above. The reference is answered accordingly. Thecivil appeals and the special leave petitions shall now be postedbefore the regular Benches for decision in light of the above.”

10. In the facts of the present case, when the Appellate Authorityrelied upon the Commissioner’s Report stating that there are 36 roomsDin the building and that the majority of the rooms are let out, showing thatsome of the rooms in the occupation of the landlord are lying vacant, itcannot be said that there is any perversity in this finding of fact. Evenassuming that the High Court is correct in its construction of Section11(8) of the Kerala Rent Control Act, stating that vacant rooms in otherEbuildings cannot be looked at, this finding of fact of the Appellate Authorityputs paid to any bonafide requirement of additional accommodation ofthe landlord in the facts of the present case.

11. The reliance upon the Building Tax Assessment Register bythe Appellate Authority, showing that some of the rooms belonging toFthe landlord were lying vacant, again, is finding of fact which cannotbe interfered with in the manner done by the High Court. Further, thefinding that room leased by the mother-in-law of the tenant in anotherbuilding is not in the tenant’s possession only because he had his mother-in-law’s permission to store goods when necessary, and especially duringfestival occasions, on temporary basis, would also show that he cannotGbe considered to be in possession of the said room, as rightly held by theAppellate Authority. Interfering with this finding of fact, again, withoutany perversity or misappreciation of evidence by the Appellate Authoritywould clearly be outside the High Court’s ken in its revisional jurisdiction.Equally, the finding of comparative hardship, which is finding of fact

not otherwise found to be perverse, cannot be upset in the manner donein the present case by the High Court.

12. Learned counsel for the respondent, however, relied upon thejudgment of this Court in Badrinarayan (supra). This was case whicharose under the Bombay Rents, Hotel and Lodging House Rates ControlAct, 1947 [“Bombay Rent Act”], Section 13(2) of which states asfollows:

“13. When landlord may recover possession.—

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(2) No decree for eviction shall be passed on the ground specifiedin clause (g) of sub-section (1) if the court is satisfied that, havingregard to all the circumstances of the case including the questionwhether other reasonable accommodation is available for thelandlord or the tenant, greater hardship would be caused by passingthe decree than by refusing to pass it.

Where the court is satisfied that no hardship would be causedeither to the tenant or to the landlord by passing the decree inrespect of part of the premises, the court shall pass the decreein respect of such part only.

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The finding of fact arrived at by the Appellate Authority andsustained by the High Court as to bonafide requirement of the landlordin that case was upheld by the Supreme Court. The only question thatthe Supreme Court was called upon to decide is the exercise of discretionunder Section 13(2) of the Bombay Rent Act so far as partial eviction isconcerned (see paragraph 5). Paragraph 10 strongly relied upon by learnedcounsel for the respondent is in the context of partial eviction beingordered, in which this Court stated:

“10. …It is expected of the parties to raise necessary pleadings,and the court to frame an issue based on the pleadings so as toenable parties to adduce evidence and bring on record such relevantmaterial as would enable the court forming an opinion on the issueas to comparative hardship and consistently with such findingwhether partial eviction would meet the ends of justice. Even ifno issue has been framed, the court may discharge its duty by

[2020] 6 S.C.R.

Ataking into consideration such material as may be available onrecord.”

Paragraph 13 was then relied upon, which dealt with an Englishjudgment in Piper v. Harvey, (1958) 1 All ER 454, in which it wasfound, on the evidence adduced in that case, that the comparative hardshipBissue would have to be decided against the tenant. After going into thefacts in that case, this Court remanded the case to the appellate court toframe two issues which related to whether partial eviction would meetthe ends of justice (see paragraph 16).

13. Section 11(8) of the Kerala Rent Act is materially differentCfrom Section 13(2) of the Bombay Rent Act in that it does not providefor partial eviction if comparative hardship of landlord and tenant areto be weighed against each other. Even otherwise, on the facts of thiscase, issue (3) was specifically raised, which reads as follows:

“(3) Whether the hardship which may be caused to the respondentDby granting eviction will outweigh the advantage to the petitioner?”This issue was answered by the trial court by merely stating thatthe landlord will be able to run his establishment in better manner if hegets the schedule petition rooms, which will help to lead his establishmentto prosperity, as compared with the tenant, who is not able to “establishEmuch hardship to him”. This vague finding was rightly set aside by theAppellate Authority, which has been set out by us inextenso in paragraph5 of this judgment. As has been stated hereinabove, without finding thisto be perverse, the High Court acted outside its revisional jurisdiction insubstituting the same in the manner done hereinabove.

14. For all these reasons, we allow the appeals and set aside theFHigh Court’s judgment, restoring that of the Appellate Authority.

Divya Pandey

Appeals allowed.