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1978 DIGILAW 270 (KER)

RAMANKUTTY v. MARY PONNAMMAL PEREIRA

1978-10-09

K.K.NARENDRAN

body1978
Judgment :- 1. Questions of some importance in rent control law arise for consideration in this civil revision filed by the tenant who resists eviction in execution of a civil court decree. The questions are: (1) Whether the tenant of a building to which the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, for short the Act, applies can be evicted without approaching the Rent Control Court under S.11 of the Act. (2) When the tenant denies the title of the landlord what is the procedure to be followed; and (3) Whether the fact that the tenant did not raise a contention in the suit for eviction before the civil court that be can be evicted from the building only in pursuance of an order for eviction under S. H of the Act, can debar such a contention in execution. 2. The defendant judgment debtor in O.S. 675 of 1962 of the Munsiff's Court, Quilon, against whom E P. No. 492 of 1976 was filed before the same court is the petitioner in this civil revision petition. The suit was for the declaration of the plaintiffs' right over the plaint schedule property as kuthakapattom tenant and for recovery of the same with arrears of rent. The plaint schedule properly is a building let out to the petitioner and the 10 cents of land on which it was built, in the Quilon Municipal Town. In the reply sent to the suit notice the petitioner denied the plaintiffs' title to the plaint schedule property. The trial court gave a decree declaring the plaintiff's kuthakapattom right over the plaint schedule property, and allowed recovery of possession of the same with arrears of rent on payment of value of improvements. The above decree of the trial court was confirmed in appeal by the District Court, Quilon. But in second appeal by the petitioner the said decree was reversed by this court. The respondents did not leave the matter there. They filed an appeal from second appeal from the above decision and a Bench of this Court which heard the said appeal reversed the judgment and decree of the learned single judge and restored that of the trial court. The Bench also held that at the time of filing the suit the kuthakapattom to the plaintiffs-respondents or their predecessor was subsisting 3. The Bench also held that at the time of filing the suit the kuthakapattom to the plaintiffs-respondents or their predecessor was subsisting 3. Thereafter the respondents filed E. P No. 492 of 1976 for delivery remitting the value of improvements to be paid to the petitioner. The petitioner filed a counter mainly contending that since the decree schedule building is situated in the Quilon Municipality he can be evicted only under the Rent Control Act and hence no eviction can be had in execution of the decree obtained. To the above counter the respondents filed a counter on 10-12-1976. In that counter there is a clear statement that the building mentioned in the decree schedule was let out to the petitioner. The execution court repelled the the petitioner's contention saying that there is no necessity to file a petition for eviction under S.11 of Act 2 of 1965 and ordered delivery. 4. The petitioner challenged the above order of the execution court before the District Court, Quilon, in A.S. No. 10 of 1977. But the District Court dismissed the petitioner's appeal saying: "Coming first to the contention that the matter is governed by the provisions of the Buildings (Lease and Rent Control) Act, it has to be observed that the decree shows that the claim of the decree-holder was based on title as the defendant had denied his title. It was a decree for possession on the basis of title that was passed in Plaintiffs' favour and not a decree for eviction. Defendant has been ordered to be paid compensation for certain improvements effected by him in the property. Apart from that, what was leased out to the judgment debtor by decree-holder's predecessor in title was a plot of land with a dilapidated building, which building the defendant dismantled and a new building was put up. It is in respect of that building that compensation has been ordered to be paid. Obviously therefore provisions of Buildings (Lease and Rent Control) Act are not attracted to the case Of course even if such a contention was not raised by the judgment-debtor before the trial court it may be open to him to raise that contention before the executing court if it is really available to him. Obviously therefore provisions of Buildings (Lease and Rent Control) Act are not attracted to the case Of course even if such a contention was not raised by the judgment-debtor before the trial court it may be open to him to raise that contention before the executing court if it is really available to him. In this case that contention was not available to the judgment-debtor and therefore the court below rightly negatived the contention." The District Court also negatived the contention of the petitioner that there was no kuthakapattom lease subsisting in favour of the respondents and hence the petitioner cannot be evicted. The petitioner has challenged the above judgment of the District Court in this Civil Revision petition. 5. The real question is whether the petitioner can be evicted from the building without an order of the Rent Control Court under S.11 of the Act. S.11 (1) and (2) (a) of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, reads: 11. Eviction of tenants (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or public authority notified under this Act: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. (2) (a) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. It is true that in this case there is a decree for eviction passed by a civil court. But the building in question is one situated in the Quilon Municipal Town where the Act is made applicable. (2) (a) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. It is true that in this case there is a decree for eviction passed by a civil court. But the building in question is one situated in the Quilon Municipal Town where the Act is made applicable. Nobody has a case that the building is one to which the Act will not apply. So in view of S.11 of the Act, even if there is a decree, the petitioner cannot be evicted from the building except in accordance with the provisions of the Act. S.11 (2) (a) makes it clear that to evict a tenant the landlord has to approach the Rent Control Court for a direction in that behalf. Even though the decree in this case is one for eviction in view of the above statutory prohibition the court has no jurisdiction to execute the decree. The fact that the petitioner tenant did not contend before the civil court that he can be evicted only in accordance with the provisions of the Act cannot in any way further the case of the landlord. Res judicata cannot give the execution court a jurisdiction under the Act which the Act says it is not to have. What S.11(1) of the Act insists is that a tenant shall not be evicted in execution of a decree or otherwise except in accordance with the provisions of the Act. Also by the mere denial of the landlord's title by the tenant, the landlord cannot straight away approach the civil court for eviction of the tenant. Even in that case the Rent Control Court will have to be moved and only when the Rent Control Court records a finding that the denial of title Is bonafide the landlord can sue for eviction in a civil court. In view of the 2nd proviso to S.11 (1) of the Act, then there will be no statutory prohibition for the civil court to pass a decree for eviction and hence it goes without saying that the tenant can be evicted in execution of such a decree. In this case admittedly the suit was filed without moving the Rent Control Court and getting its decision on the bona fides of the denial of title by the tenant. In this case admittedly the suit was filed without moving the Rent Control Court and getting its decision on the bona fides of the denial of title by the tenant. So the decree passed by the civil court does not get the immunity provided by the 2nd proviso to S.11(1) of the Act. So the irresistible conclusion is that the petitioner tenant cannot be evicted from the building in execution of the decree which is sought to be executed. 6. Sri. K Sukumaran learned counsel for the petitioner referred to K. Punnan P. Kurup (AIR. 1956 T.C. 1). In para 14 of this decision it is stated: "Whatever may be the nature of the decree, eviction of a tenant in execution of the decree is prohibited under the clause except in certain specified cases. Since the provision contained in the clause is mandatory, and consent and compromise decrees are not exempted from the ambit of the clause the Court is debarred from evicting tenants in execution of compromise or consent decrees also except is accordance with the provisions of the clause. It is a case of the Court having no jurisdiction to execute the decree for eviction by reason of the statutory prohibition and, therefore, there is no scope for the application of the doctrine of waiver. "Consent cannot give jurisdiction and, therefore, any statutory objection which goes to the jurisdiction does not admit of waiver." " In the above decision reference is seen nude to Stone (J & F.) Lighting and Radio Ltd v. Lavitt, (1947 AC 209) wherein Lord Thankerton has said: "It is idle to suggest that either estoppel or 'resjudica' can give the court a jurisdie-ion under the Rent Restriction Acts, which the Statute says, it is not to have." Sri. T.S. Venkiteswara Iyer, learned counsel for the respondents, referred to Ratanlal v. Chanbasappa (AIR. 1978 Bombay 216) wherein after referring to the decision of the Supreme Court in Sushila Kashinath v. Harilal Govindji (AIR. 1971 SC. 1495), Mridul, J. speaking for the court said: "Where the relationship of landlord and tenant between the plaintiff and the defendant was not in existence at the time of or even prior to the suit for eviction as a result of disclaimer of title, the bar of jurisdiction of civil court does not apply. 1971 SC. 1495), Mridul, J. speaking for the court said: "Where the relationship of landlord and tenant between the plaintiff and the defendant was not in existence at the time of or even prior to the suit for eviction as a result of disclaimer of title, the bar of jurisdiction of civil court does not apply. The relationship of landlord and tenant is a sine qua non for the attractability of the provisions of S.28. If such a condition is not fulfilled, it is open to the owner of the property to recover possession of the premises de hors the provisions of the Rent Act." S. 28 of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 reads: "28 Notwithstanding anything contained in any law and notwithstanding that, by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, (a) …. (b) ….. shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a, tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions: and no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question " A mere reading of S.11 of the Kerala Act 2 of 1965 and S.28 of the Bombay Act extracted above will make it clear that the decision of the Bombay Court in Ratanlal's case is not applicable here. 7. The decree schedule consists of the building let out to the petitioner and the 10 cents of land in which it stands with a well in it. As per S.2 (1) of the Act the whole of the decree schedule property will come within the definition of building given therein. The ten cents of land in which the building stands will only form land appurtenant to the building let out to the petitioner. It is also clear from the counter dated 10-12-1976 filed before the execution court that it was the building that was let out and that there was no lease of the land as such. The ten cents of land in which the building stands will only form land appurtenant to the building let out to the petitioner. It is also clear from the counter dated 10-12-1976 filed before the execution court that it was the building that was let out and that there was no lease of the land as such. So no question of eviction from the land alone also arises. The execution court and the lower appellate court has committed an error of jurisdiction in allowing the execution petition and ordering delivery. The Civil Revision Petition is allowed and E.P. No. 492 of 1976 will stand dismissed. There will be no order as to costs. Allowed.