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1986 DIGILAW 480 (KER)

KUNHIPATHUMMA v. KUNHAPPA

1986-12-10

G.VISWANATHA.IYER

body1986
Judgment :- 1. The petitioner is the owner of the plaint schedule building which he had leased out to the respondent. The building is situate in Madayi Panchayat of Cannanore District, to which the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Rent Control Act, for brevity) was not applicable. Petitioner filed the suit for recovery of possession of the building. The suit was decreed and the decree was confirmed in appeal by the Sub Court, Tellicherry and by this court in S. A. No. 71 of 1985 - A by judgment dated 24th January, 1985. This Court however, directed, on the respondent-tenant's prayer, that he will not be evicted for a period of six months, if he gave an undertaking in the trial court within one month from the date of judgment that he will surrender the property within six months. 2. Soon after this judgment and on 5-2-1985, the Government of Kerala issued notification extending the previsions of the Rent Control Act, to the Madayi Panchayat. Apparently because of this, the defendant did not give the undertaking mentioned above. The petitioner-decree holder applied for execution of the decree by delivery of possession of the building, when he was met with the plea that in view of the extension of the Rent Control Act to the Madayi Panchayat with effect from 5-2-1985, the respondent could not be evicted in execution of the decree and that he could, if at all, be evicted only in accordance with S.11 of the said Act. This contention was accepted by the lower court and the execution petition dismissed. The decree-holder has come up with this revision petition. 3. The contention raised by Sri. V. P. Mohan Kumar, counsel for the petitioner is that the decree for eviction had been passed by the civil court, at a time when the Rent Control Act was not in force in the Madayi Panchayat and that the said decree bad become final before the extension of the Rent Control Act to the said Panchayat. He therefore, states that the petitioner has acquired a right to execute the decree and to fake possession of the building. He would further state that, in any case, the Rent Control Act can apply only if there is a subsisting landlord-tenant relationship between the parties. He therefore, states that the petitioner has acquired a right to execute the decree and to fake possession of the building. He would further state that, in any case, the Rent Control Act can apply only if there is a subsisting landlord-tenant relationship between the parties. In this case the relationship of landlord and tenant between the petitioner and the respondent bad been sundered long back and the position of the respondent after the decree was only that of a trespasser in possession, who can not avail himself of the provisions of the Rent Control Act. 4. "Tenant" is defined in S.2(6) of the Rent Control Act as follows: "Tenant" means any person by whom or on whose account rent is payable for a building and includes. (i) the heir or heirs of a deceased tenant, and (ii) a person continuing In possession after the termination of the tenancy in his favour, S.11 of the Act stipulates that: "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." Therefore, in all cases to which the Rent Control Act applies, there is an embargo on the eviction of a "tenant" of a building except in accordance with the provisions of the said Act. He is liable to be evicted only if one or other of the conditions specified in S.11 is satisfied. The Act in a self contained Code so far as eviction of tenants of buildings is concerned, (vide Ibrayan v. Balan 1985 KLT 896). Once the Act is extended to a particular area, no "tenant" can be evicted except in accordance with the provisions of the Act. This will be so even where a decree has been passed earlier since S.11 bars even execution of decrees. If the person in possession is a "tenant" as defined in the Act at the time the Act was extended to the area where the building is situate, the position will be that he becomes entitled to protection under the Act and becomes non-evictible except in accordance with the provisions of the same. 5. It is true that when once the tenancy is terminated, there is no further relationship of landlord and tenant. 5. It is true that when once the tenancy is terminated, there is no further relationship of landlord and tenant. However, the definition of "tenant" in the Rent Control Act is an inclusive one and takes within its ambit even a person continuing in possession after the termination of the tenancy in his favour. What S.2(6) has done is to make quondam tenants of buildings continuing in possession to be "tenants" protected by the Act. A person continuing in possession after the termination of his contractual tenancy thus becomes a statutory tenant, by virtue of the provisions in the Rent Control Act. This will be the position even if the Rent Control Act was not applicable to the area at the time of termination of the tenancy and was made applicable only long thereafter. The question for consideration is whether the possession of the defendant had its origin in tenancy and whether he continued in possession at the time the Act was made applicable. The respondent is one such person. He was inducted into possession under a lease. The lease was terminated, but he was in possession on 5-2-1985, when the Rent Control Act was extended to the Madayi Panchayat. He was therefore, a tenant as defined in the Rent Control Act. Such a tenant is entitled to the protection of S.11 and is not liable to be evicted except in accordance with the provisions of the Act. 6. In this view of the matter the respondent is not liable to be evicted in execution of the decree in the suit. He can be evicted only in accordance with the provisions of the Rent Control Act. 7. The decision of the High Court of Madras in Shantha Ammal v. Arasadl Karpaga Vinayagar Temple (1984 (1) MLJ 36), cited by counsel for the petitioner has no application to the facts of this case. 8. The view taken by me is supported by the decision of the Supreme Court in Mani Subrat Jain v. Roja Ram Vohra (AIR 1980 Supreme Court, 299) where dealing with the provisions of the East Punjab Urban Rent Restriction Act (3) of 1949), the Supreme Court observed: "The expression ‘tenant' includes 'a tenant continuing in possession after the termination of the tenancy in his favour. It thus includes, by express provision a quondam tenant whose nexus with the property is continuance in possession. It thus includes, by express provision a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having: regard to the carefully drawn inclusive clause." There is therefore, no merit in the revision petition. It is accordingly dismissed without any order as to costs.