Peter George vs Liciamma Mathew and Others

S. Padmanabhan, J.—One Mathew was the owner of the building. Petitioner was a tenant under him. Respondents 1 to 7 are the widow and children of Mathew. They became landlords by inheritance on the death of Mathew. They sued petitioner for eviction on grounds of arrears of rent, bona fide need for own occupation and subletting. Subletting was found against and it was not pursued further. By the original of Ext. P4, rent controller ordered eviction on other two grounds. Petitioner appealed. Appeal was allowed and rent control petition dismissed by the original of Ext. P5, which is patently perverse. Revision filed by landlords was allowed by District Judge restoring Ext. P4. Ext. P6 is copy of the order. In this original petition filed under Article 227 of the Constitution petitioner wants this Court to quash Exts. P4 and 6 and dismiss the rent control petition.

Bona fide need, coming u/s 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, alone now survives. Respondents are admittedly running an industrial unit at a distance from the town area manufacturing rolling shatters and other consumer goods. Industry continues as a sick unit. Building sought to be evicted is in the town. It is fit for a show room and store room for the unit. Bona fide need alleged is to use as a show room and store room in an attempt to revive the unit. Contention of the Petitioner is that the said purpose could be achieved by advertisements in newspapers and exhibition of slides in cinema theatres. He also claimed that he is depending for his livelihood mainly on the income derived from the trade conducted in the building and no other suitable building is available. His further esse is that landlords are having two rooms in their possession, in which the show room and store room could be- housed.

Rent control court accepted the bona fide need. But appellate authority said that show room and store room are not necessary to revive the industry and that the purpose could be served by advertisements, as contended by petitioner. Revisional authority said that this is a perverse approach. It is not for the tenant or Court to dictate to the landlord as to how he should meet his bona fide need. Question is only whether the need alleged is true and bonafide or whether it is only a pretext for eviction. As to how he should meet his need, when he is having a building of his own, is for the landlord to decide when the bona fide need id admitted or found. District Judge was perfectly within limits when, he disagreed and restored the conclusions of rent controller.

Under the first proviso to Section 11 (3), a direction for eviction-on the ground of bona fide need shall not be allowed except on satisfaction for special reasons when landlord has another building in his possession in the same city, town or village. Admittedly, respondents 1 to 7 have two rooms in their possession. But those rooms are not in the town. It is an out-house of a residential building having no road access. One room is in the ground floor and the other in first floor. Contention is that these rooms are not fit for the show room or store room, which will have to be in the town where road access is available. Rent controller accepted these facts as special reasons to consider eviction just and proper. Appellate judge, without any discussion, simply made a bald statement that no special reason is proved. Question whether these rooms are fit for the purpose was also sot'' considered. District judge, in revision, said that this approach is also perverse. I do agree.

Under the second proviso to Section II (3), tenant has to prove two things. First is that he is depending for his livelihood mainly on the income dsrived from the trade carried on in the building. Rent controller and appellate authority agreed that this is proved, District judge had no quarrel. Secondly, tenant has to show that there is no other suitable building available in the locality for him to carry on the trade. From the admission of the petitioner and other circumitancei, rent controller found that burden is this respect was not discharged by the tenant and hence he is not entiled to the benefit of the proviso. Here also, appellate authority conveniently avoided a discussion and satisfied himself with a blunt statement opposed to law that burden is on the landlord. Then he proceeded to say that this question need not be considered, in view of the fact that bona fide need was rejected by him. Here also. District Judge said rightly that approach is wrong and opposed to law. Thus, findings of the rent controller and revisional authority on Section 11 (3) and the two provisos are perfectly reasonable and within the limits of their authority.

Faced with such a helpless situation, counsel wanted to rely on some alleged subsequent developments that transpired after the eviction order by revisional authority justifying interference by this Court. Reliance was placed on Exts PI to 3 in order to contend that industry itself is being abandoned and the land, on which the schedule building stands, is advertised for sale. In the first place, Exts. PI to 3, even If taken as genuine, are not subsequent events after eviction order by revisional court Ext. P3 was on 9-12-1984 and Ext. P2 on 22-9-1985. Both are before Ext.P5 appellate judgment rendered on 28-9-1985. Ext. PI was on 16-12-1985, after the appellate judgment, but long before Ext. P6 revisional order, which was rendered only on 21-11-86. Neither before appellate court nor before revisional court any ground based on Exts. PI to 3 was taken and there is no explanation. There is no case that petitioner was unaware of Exts, P1 to 3.

A contention not taken up before lower tribunals, even if available, cannot be allowed to be taken up in a proceeding under Article 227, which is concerned, in exercise of the power of superintendence, only to see whether subordinate courts or tribunals acted within their bounds or exceeded the same Filmistan (P) Ltd. Vs. Balkrishna Bhiwa and Another, . It is true that in exceptional cases, as decided cases show, this Court may be justified in going into the facts or evidence in order to ascertain whether tribunal misguided itself on questions of fact or law and cams to perverse conclusions resulting in flagrant failure of justice. Bat new facts, not raised earlier, cannot be admitted under Article 227 (Daya Debi v. Chapala Debt - A. I. R. 1960 Calcutta 378). General principles of res judicata, including the might and ought theory, may also stand in the way. Available contentions, if not raised, could be considered as having taken up and rejected.

Respondents explained Exts. PI to 3 in this way. Second respondent, a recalcitrant son of first respondent, turned against others and attempted to interfere with the business to its detriment. Therefore, first respondent issued Ext. P3 publication in newspaper in the interest of the unit, warning the public not to have dealings with him. As a counter blast to this, he gave Ext. P2 publication in the name of industry advertising 20 cents of land for sale. But nothing took place. There is no idea of winding up the unit or selling any land. Exts. P3 and 3 were relied on in this Court only as a rase to resist eviction. Ext. Pl is a delivery list, by which respondents got delivery of a room measuring 180x62 inches It is only a lean-to of the schedule building and it is unfit and insufficient for the show room or store room I think these contentions are acceptable. At any rate, these are contentions, if available, might ancfought to have been taken up before statutory authorities.

Petitioner was not prepared to leave matters there. Various decisions were relied on to contend that in spite of the above /acts, Exts. PI to 3 could be relied on in this proceeding aa subsequent events.for coming to too conclusion that there is no bona fide need now. Decision Viswambhdran v. Damodaran Nair (1988 (2) K. T 32) relied on dealt with a situation where a District Judge nominated during vacation to attend to urgent matters exceeded his powers and rendered a final decision on merits. This Court only said that in such cases, power of superintendence under Article ''227 could be exercised even suo motu. Two short note decisions in State of Kerala v. Louis (1989 (2) K. L. T 19 Case No. 25) and Prabhakaran v. Beevathu (1990 (1) K.L. T 57 Case No. 69) also did not say anything favourable to petitioner''s case.

Other decision relied on are Pasupuleti Venkateswarlu Vs. The Motor and General Traders, . Hasmat Rai and Another Vs. Raghunath Prasad, and Variety Emporium v. Mohammed Ibrahim Naina ( A. I. R I9S5S. C 207). It is true that all these decisions said that subjequsnt events till the final decision of the appellate (or re visional forums could be taken into account for moulding the reliefs. That is because bona fide need or other requirements for eviction are necessary not only at the time when the proceedings start1ed, they must continue. to be in existence till the final verdict is given by the final statutory forum, whether appellate or revisional Appeal second appeal, if any, and revisions-are continuations of the original proceedings. If, after the proceedings star led and before it was finally decided in appeal or revision, a new event took place, by which bona fide need or other requisite condition ceased to exist, that is something which the High Court not only could, but also must take into account for moulding the relief. In all these cases, Supreme Court was considering appeals or revisions decided by High Courts. These decisions themselves are authorities against the position canvassed by petitioner''s advocate. In Hasmant Rai and another v. Raghunath Prasad (A. 1. R. 1981 S. C. 1711), in paragraph 14, it was made clear that the drcree or order becomes, final only in the sense that it is not open to further adjudication by a court or heirstcby of courts and appeal is a continuation of fhcemt. Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, also said that unless the statute prescribes to the contrary, requirement most continue to exist on the date when the proceeding is finally disposed of either in appeal or revision by the relevant authority. So far as rent control proceedings are concerned, after the decision in Aundal Amma v. Sadasivan Pillai ( 1987 (1) K. L T. 53), a Second revision before High Court will not lie and, therefore, final decision is over when revision is disposed of by District Judge. Now revisional jurisdiction is taken away from District Judge and given to High. Court, but we are not concerned with that aspect. In a proceeding under Article 227, which is not a statutory remedy, this Court considers only the exercise of jurisdiction as it is in order to find out whether it involves usurpation of non-existent jurisdiction or circumstances rendering the decision illegal justifying interference on account of perversity on facts or law resulting in flagrant violation of justice, which requires remedy. It is not the look out of ibis Court as a statutory forum to consider new materials to decide whether the decision could be reversed or modified. Errors are possible within the limits of jurisdiction. Such errors could be corrected only by statutory forums. Otherwise, even a wrong decision passed with jurisdiction also will be binding.

Then, attempt was to make out that a proceeding under Article 227 is revision and thus a continuation of the original proceeding. A Full Bsnch of this Court in Arumugham Chettiar v. Joseph (1961 K. L T. 823) said so. It is tea? that there are similarities between powers u/s 115 of the Cods of Cvil Procedure and Article 227 of the Constitution. But Arumugham Chettiar''s case (1961 KLT 823) cannot be treated as good law now, in view of what Supreme Court said in Ramesh and Another Vs. Seth Gendalal Motilal Patni and Others, that it is not an appeal or revision, but only a proceeding quite independent of the original proceeding. 1961 K.L.T 823 itself did not directly consider the question in the way in which it has arisen in this case. It was said to be revisional not in the sense that it is a statutory remedy, but only because it has similarities with the supervisory jurisdiction u/s 115 of the Code of Civil Procedure. Proceedings under Article 226 or 227 of the Constitution may be civil or criminal depending on the nature of the original proceeding, from which it started. But, neverthless, it is not a continuation of the original proceedings and is not a statutory remedy, but only an extra ordinary discretionary constitutional remedy. A proceeding under Article 227 of the Constitution is not a continuation of the original proceeding capable of keeping it alive in spite of the final statutory decision, by which it came to a final end. Purpose is only interference in extreme cases in a power of superintendence.

Counsel then took me to the decision in Nataraja Chettiar v. Sutekha Amma (1987 (1) K. L. T 829), wherein Supreme Court said that a party aggrieved by the decision of District Judge in a revision under the root control proceedings can approach High Court under Article 227, in appropriate cases. That decision was rendered in the light of Aundal Amma''s case (1987 (1) K. L. T 53), in which Sapreme Court said that a second revision to High Court is not maintainable. That decision did not say that such a petition is a statutory remedy or a continuation of the rent control proceeding capable of keeping it alive. In fact, these two decisions ''themselves taken together would show that what Supreme Court said is that Article 227 is not a revisional, but an original jurisdiction. That is the case with a proceeding u/s 482 of the Code of Criminal Procedure also. A new development, which took place before or after the final determination by final statutory forum and not raised before the courts in the beirarcby, cannot be made the subject matter as a ground of attack or defence in a proceeding under Article 227 and it is against the purpose and object of that provision, which is concerned only with a corrective process of'' the statutory jurisdiction exercised. In this case, ground is not available for the further reason that it was not raised before the appellate and revisional forums in spite of availability and for the further reason that it is not genuine also. Petitioner was interested only in clinging on- to the building under some pretext or other. He has succeeded by his mala fide acts to keep respondents 1 to 7 away for a pretty long time and make them incur huge expenses. He must, therefore, be made liable for costs.

Original petition is, therefore, dismissed with costs, including counsel''s fee, which I quantify ai Rs. 500/-. Rent control court will take steps immediately to see that respondents 1 to 7 are put in possession.