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1983 DIGILAW 296 (KER)

JOY v. STEPHEN JACOB

1983-11-18

K.K.NARENDRAN

body1983
Judgment :- 1. An interesting question in rent control law arises for consideration in this civil revision. A lease of a building to which the Kerala Buildings (Lease and Rent Control) Act of 1965 applies was given pending a suit for declaration of the rights of the plaintiff in the suit to recover the building from the landlord. The suit was later decreed. Can the tenant be evicted in execution of the decree. In a suit for permanent injunction by the tenant to restrain the plaintiff in the suit for declaration and the landlord of the building from evicting him otherwise than in accordance with the provisions of the Act, can a temporary injunction be refused on the ground that the tenant has not made out a prima facie case? 2. The plaintiff in OS. No. 203-of 1983 of the Munsiff's Court, Muvattupuzha is the petitioner in the civil revision. He took on rent a building belonging to the first respondent in 1978. The building is one to which the Kerala Act 2 of 1965 applies and hence the lease is governed by the provisions of the Act. When the lease arrangement was entered into, a suit filed by the 2nd respondent against the guardian of the 1st respondent owner of the building was pending before the Sub Court, Ernakulam. That suit by the previous tenant of the building was decreed granting a declaration that the 2nd respondent is entitled to get back the building previously occupied by her on payment of fair rent. The judgment and decree were confirmed in appeal and second appeal. The 1st respondent then filed O.S. No. 154 of 1983 before the Sub Court, Ernakulam for a declaration that he is entitled to recover vacant possession of the building and to direct the petitioner to hand over vacant possession of the same. According to the petitioner the respondents have also resorted to pressure tactics for forcibly evicting the petitioner from the building and it was under the above circumstances that the petitioner filed this suit for permanent injunction restraining the respondents, the landlord and the previous tenant decree holder in O.S. No. 81 of 1978 from evicting the petitioner from the building in question except in accordance with the provisions of Kerala Act 2 of 1965. 3. Along with the plaint, the petitioner moved I.A. No. 1150 of 1983. an application for temporary injunction. 3. Along with the plaint, the petitioner moved I.A. No. 1150 of 1983. an application for temporary injunction. The trial court issued interim injunction. But on hearing the respondents the court vacated the injunction. Though the court held that the balance of convenience was in favour of the petitioner and irreparable injury will be caused to him if the injunction was not granted, according to the court the petitioner did not make out a prima facie case. The reason for holding that the petitioner did not make out a prima facie case, according to the trial court, was that the lease granted to the petitioner was hit by lis pendens. 4. The petitioner challenged the above order of the trial court vacating the interim injunction before the District Court, Ernakulam in CMA. No. 48 of 1983. The District Court held that the lease arrangement was hit by lis pendens and refused to interfere with the conclusion of the trial court that the petitioner did not make out a prima facie case. Accordingly the C. M. A. was dismissed. It was under the above circumstances that the petitioner has approached this Court in this civil revision challenging the judgment of the District Court, refusing injunction to him. 5. The only question that falls for consideration is whether the petitioner has made out a prima facie case and hence the judgment of the court'below confirming the order of the trial court refusing temporary injunction to the petitioner calls for any interference by this Court in revision. S.11(1) of Kerala Act 2 of 1965 which provides for the eviction of tenants reads: 11. Eviction of tenants:-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:" The provisos are omitted as they are not relevant here. The petitioner was inducted as tenant by the guardian of the 1st respondent as per Ext. Al registered deed. It is not brought out in the case that Ext. Al makes any mention about the suit O.S. No. 81 of 1978 and it contains a condition that the petitioner should vacate if the above suit is decreed. The petitioner was inducted as tenant by the guardian of the 1st respondent as per Ext. Al registered deed. It is not brought out in the case that Ext. Al makes any mention about the suit O.S. No. 81 of 1978 and it contains a condition that the petitioner should vacate if the above suit is decreed. In view of this it was wrong on the part of the courts below to have come to the conclusion that the petitioner was aware of the pendency of the suit and that the petitioner had agreed to vacate the building if the suit was decreed. The petitioner was not impleaded in the suit, filed by the 2nd respondent. Even if the petitioner was impleaded in the suit and a decree for possession was passed in the suit the petitioner could continue to be in possession till he is evicted in pursuance of an order of the Rent Control Court passed under S.11 of Act 2 of 1965. This is because it cannot be denied that the petitioner is a tenant of a building to which Act 2 of 1965 applies. Nobody has a case that the petitioner is a trespasser. The petitioner was inducted in as a tenant by the landlord. The non obstante clause contained in S.11(1) has - to be given its full effect. The rent control legislation is a self-contained statute and the rights and liabilities of the landlord and tenant are to be governed by its provisions and not by the provisions in the Transfer of Property Act or any other law. In other words, the provisions of Act 2 of 1965 will override the provisions of the Transfer of Property Act as far as landlords and tenants of buildings to which it applies. In Puwada Venkateswara v. C. V. Ramana (AIR. 1976 SC. 869) the Supreme Court has upheld the contention that the Andhra Pradesh Buildings (Lease and Rent Control) Act 15 of 1960 provided a procedure for eviction of tenants which was self-contained so that no recourse to the provisions of S.106 of the Transfer of Property Act, 1882 was necessary. In Lelitha v. Ayisumma (1977 KLT. 587) a Full Bench of this Court has followed that decision. In the judgment the following passage, from Brij Raj Krishna v. Shaw and Bros. (AIR. 1951 SC. In Lelitha v. Ayisumma (1977 KLT. 587) a Full Bench of this Court has followed that decision. In the judgment the following passage, from Brij Raj Krishna v. Shaw and Bros. (AIR. 1951 SC. 115) has been quoted: "S. 11 begins with the words 'notwithstanding anything contained in any agreement or law to the contrary' and hence any attempt to import the provisions relating the law of transfer of property for the interpretation of the section would seem to be out of place. S.11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted." In view of the clear declaration of law in the above decisions, I do not think it is possible to hold that even if the lease is hit by lis pendens the petitioner can be sent out without resorting to S.11 of Kerala Act 2 of 1965. Then even if it is assumed without deciding that the lease is hit by lis pendens can it be said that the petitioner is a trespasser. The petitioner was inducted in by the landlord of the building. The petitioner is in occupation of a building to which Kerala Act 2 of 1965 applies. The petitioner is not the owner. What is the remedy that is available to the landlord or anybody claiming through him. He can be evicted only under S.11 of Act 2 of 1965. Till that is done he can continue to be in possession. So if there is a threat of dispossession otherwise than by filing a petition for eviction under S.11 of Act 2 of 1965 can the petitioner move the Civil Court and obtain an injunction? It cannot be said that he has no prima facie case. 6. For the reasons stated above, the lower appellate court committed a material illegality in the exercise of its jurisdiction in not interfering with the order of the trial court refusing temporary injunction to the petitioner and this has resulted in a failure of justice. Hence judgment of the lower appellate court calls for interference by this Court in revision. 7. In the above view I have taken, it has become not necessary to consider the decisions cited at the Bar by the counsel on both sides. 8. Hence judgment of the lower appellate court calls for interference by this Court in revision. 7. In the above view I have taken, it has become not necessary to consider the decisions cited at the Bar by the counsel on both sides. 8. The judgment of the court below is set aside. I.A. No. 1150 of 1983 will stand allowed. But it is made clear that the direction in the judgment to transfer the suit from the Muvattupuzha Munsiff's Court to the Sub Court, Ernakulam to be tried along with OS. No. J54 of 1983 will stand. The Civil Revision is allowed as above. No costs.