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1995 DIGILAW 85 (KER)

Gopalan v. Madhavan

1995-03-01

P.K.BALASUBRAMANYAN

body1995
Judgment :- This Second Appeal is by the defendant in a suit for-recovery of possession of a building with arrears of rent. According to the plaintiff-respondent, the building was purchased by him under Ext. A2 dt.24-5-1985 from DW2, one Rajasekharan Nair and subsequent to the said purchase, the defendant executed Ext. A4 rent deed in his favour and went into -possession of the building. Averring that the rent was in arrears, the respondent-plaintiff filed the suit for recovery of possession of the building on the strength of the letting under Ext. A4 with arrears of rent. The defendant resisted the suit contending inter alia that he was the original owner of the building and though he a1ongwith his wife had executed Ext. B4 sale deed in respect of it, in favour of DW2,-Rajasekharan Nair, there was no intention to pass title to Rajasekharan Nair and what was intended was only to give the plaint schedule property as security for the amounts due from him to Rajasekharan Nair, In paragraph 11 of the written statementhe further submitted that there was no obligation on the plaintiff also to reconvey the property to him originally he slated that the obligation was incurred by the power of attorney of the plaintiff -. The courts below went into the question raised by .the defendant and came to the conclusion that in the face of Exts. B4 and Ext. A4 the case of the defendant could not be accepted and the plaintiff was entitled to relief on the basis of the letting evidenced by Ext. A4. Consequently, a decree for eviction with arrears of rent was passed by the trial court and the same was confirmed in appeal to the lower appellate court. The Second Appeal is tiled by the defendant challenging that decree. 2. Pending the Second Appeal, it appears, that the Kerala Buildings (Lease and Rent Control) Act was extended to the area in which the plaint schedule building is situate. In view of this, the respondent-plaintiff, it is stated, has filed an application for eviction R.C.O.P.1 of 1993 before the Rent Control Court, Kottarakkara under S.11 of the Kerala Buildings (Lease and Rent Control) Act. In view of this, the respondent-plaintiff, it is stated, has filed an application for eviction R.C.O.P.1 of 1993 before the Rent Control Court, Kottarakkara under S.11 of the Kerala Buildings (Lease and Rent Control) Act. At the hearing, learned counsel for the appellant relying on the decision of the Supreme Court reported in Eastern Properties v. Meenakshi Mills (AIR 1991 SC 1094) and the decision of the Full Bench of this court in Kuruvilla Abraham v. John 1995 (1) KLT 161=ILR 1995(1) Ker.759) contended that the suit has to be dismissed on the ground that the same is not in maintainable, in view of the extension of the Kerala Buildings (Lease and Rent Control) Act to the area in question, pending the Second Appeal. Learned counsel for the plaintiff-respondent, met this argument by pointing out that the plaint contains not only, a claim for eviction on the letting, of a tenant, but also the claim for recovery of arrears-of rent. He submitted that .the claim for recovery of arrears of rent could be entertained and can be entertained only by the civil court, since there is nothing in the Kerala Buildings (Lease and Rent Control) Act which enables a landlord to recover the rent from a tenant and all that the said Act does is to give a right to a landlord to apply for eviction on the ground of arrears of rent, in case the tenant was in arrears. He therefore submitted mat even though the prayer for eviction could not now be granted by the civil court in view of the decisions referred to above, clearly the decree for arrears of rent has only to be sustained, subject of course to any contention that the appellant may have on the merits of the case. 3. I put it to counsel for the appellant as to how he substantiates his contention that the decree for rent passed by the courts below, ought to be set aside on the ground that there is no jurisdiction in the civil court to entertain the suit. According to me, the extension of the Act to the area in question does not disable any landlord of a building from seeking a decree for recovery of arrears of rent. It only disables a landlord from filing a suit for eviction of a tenant in possession of a building. According to me, the extension of the Act to the area in question does not disable any landlord of a building from seeking a decree for recovery of arrears of rent. It only disables a landlord from filing a suit for eviction of a tenant in possession of a building. The decision of the Supreme Court in Eastern Properties Ltd. and mat of the Full Bench in Kuruvilla Abraham cannot be understood as laying down a rule that even a suit for arrears of rent in a civil court is barred or would become barred on the extension of the Act. In fact, the Rent Control Court is not competent to grant any decree for arrears of rent to a landlord. So long as there is no machinery provided by the Act, which has been held to be a complete code in itself by this court in Lalitha v. ayissumma (1977 KLT 587(FB) (see also Dhanapal Chettiar v. Yesodai Ammal AIR 1979 SC 1745), the general remedy of a suit in a civil court for recovery of arrears of rent cannot be said to be barred either expressly or by necessary implication. It is not as if whenever there is arrears of rent, the landlord is obliged to apply for eviction under S.11(2) of the Kerala Buildings (Lease and Rent Control) Act. It is open to him to recover or to seek to recover only the arrears of rent. There is no remedy provided by the Act and no forum provided by the Act for recovery of arrears of rent. In such a situation the only remedy available to the landlord is to institute a suit for recovery of the rent that may be in arrears. 4. It is therefore clear that a suit by the landlord for recovery of arrears of rent from the tenant of a building is not barred either expressly or by necessary implication. 5. Learned counsel for the defendant Sri. K.C. John submitted that even while entertaining a claim for recovery of arrears of rent, the civil court may have to decide the existence or otherwise of the relationship of landlord and tenant. 5. Learned counsel for the defendant Sri. K.C. John submitted that even while entertaining a claim for recovery of arrears of rent, the civil court may have to decide the existence or otherwise of the relationship of landlord and tenant. When a dispute of such a nature is raised by the tenant, the bar recognised by the Supreme Court and re-affirmed by the Full Bench of this court, would take in the ouster of jurisdiction even as regards the consideration of the existence or otherwise of the relationship, for the purpose of granting or refusing a decree for arrears of rent to the plaintiff. All that the decisions referred to above have stated, is that, in a case where a suit is filed against the tenant of a building who is protected by the Rent Control Statute, the civil court cannot grant a decree for eviction since the jurisdiction of the court is impliedly barred. I do not see anything in the said decisions which interferes with or precludes a civil court from exercising its jurisdiction in a claim for arrears of rent by a landlord against a tenant protected by the Act. A dispute of a civil nature between a landlord and a tenant or a claim on the basis of the existence of such a relationship, so long as it is not specifically covered by the Act, is still within the jurisdiction of a civil court. A right to recover rent on the basis of an agreement is a right founded on contract and is available at common law and is not aright conferred by the special enactment, namely, the Kerala Buildings (Lease and Rent Control) Act. Unless a statute confers a special right and provides a specific remedy under the statute to enforce that right, that too, through a machinery provided by that statute, it cannot be held that the jurisdiction of the civil court to entertain a suit is in any way barred. This principle has been well recognised ever since the decision in Wolver Hampton New Waterworks Co. v. Hawkesford (1859) 6C.B. (NS) 366). This principle has been well recognised ever since the decision in Wolver Hampton New Waterworks Co. v. Hawkesford (1859) 6C.B. (NS) 366). Viewed in that light, it is clear that the jurisdiction of the civil court to entertain a claim for recovery of arrears of rent in respect of a building and to pass a decree in that behalf is not in any way affected by the extension of the Kerala Buildings (Lease and Rent Control) Act. I therefore find that the decree for arrears of rent passed by the courts below is one well within their jurisdiction and the finding rendered in that behalf arc valid and binding on the parties and the extension of the Act pending the Second Appeal does not in any way render that decree void. 6. In view Of this approach of .the court, while the judgment was being dictated, learned counsel for the appellant-tenant sought permission to withdraw the Second Appeal. Learned counsel for the respondent opposed this prayer pointing out that this Second Appeal was filed in the year 1991, had been pending in this court for the last 4 years and had been fully argued and there is no question of permitting the appellant to withdraw this Second Appeal at this stage while the judgment was being pronounced on the merits of the controversy. Alternatively, he submitted that the plaintiff-respondent ought to be awarded heavy costs, in case this court entertains the prayer for withdrawal. He also contended that the withdrawal if permitted, should not be construed as in any manner taking away the effect of the judgment of the lower appellate court. ' 7. It has been recognised by the courts that though Order 23 of the Code of Civil Procedure in terms refers only to a suit, an appellant is entitled to invoke the power under that Order so as to enable him to withdraw an appeal of a Second Appeal. In this case, there is no formal defect or defect of other nature which would enable this court to permit the withdrawal of the Second Appeal within the meaning of Order 23 Rule 1(3) of the Code of Civil Procedure. In this case, there is no formal defect or defect of other nature which would enable this court to permit the withdrawal of the Second Appeal within the meaning of Order 23 Rule 1(3) of the Code of Civil Procedure. But this court cannot stand in the way of an appellant abandoning his Second Appeal within the meaning of Rule 1(1) of Order 23 of the Code, inviting the consequences of R.1(4) of Order 23 of the Code or the other consequences arising out of the finality of the decree of the lower appellate court. When learned counsel for the Second appellant therefore submits that the appellant does not want to pursue the Second Appeal, this court, in the normal course, cannot stand in the way of the appeal being abandoned or withdrawn without any reservation of right in the appellant. In that view, I dismiss this Second Appeal as withdrawn making it clear that the withdrawal permitted is not intended in any way to take away the effect of the judgment under appeal. Though counsel for the respondent-plaintiff as noted above, pressed for award of costs, I am not inclined to accede to that prayer. I dismiss the Second Appeal as withdrawn.