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1996 DIGILAW 480 (KER)

Chacko v. Lakshmiamma

1996-11-12

S.SANKARASUBBAN, U.P.SINGH

body1996
Judgment :- Sankarasubban, J. The above Writ Appeal is filed by the petitioner in O.P. No. 10488 of 1995. The Original Petition was filed challenging Ext. P4 order passed by the Additional District. Judge, Kottayam in R.C.R.P. No. 88 of 1982. 2. etitioner is the tenant of a building of which the first respondent is the landlady. He took the building which is situated in the town of Kottayam for running an automobile workshop. The building was rented out in 1974 on a monthly rent of Rs. 228/-. It was subsequently enhanced to Rs. 300/- per month.' 3. and-lady filed RCP No. 11/80 before the Rent Control Court, Kottayam for evicting the tenant, under S.11(2) (b) and S.11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the act). It was alleged in the petition that monthly rent was in arrears from 6.5.1979. The bonafide need alleged was that the 1 and lady wants the building for starting a printing press for her elder son Chandrasekhara Menon. It was further stated in the petition that a press has already been made available and she had taken steps for equipping the building and premises to run the press. 4. etitioner/ tenant filed objection. He denied that there was any arrears of rent and also the bonafide need alleged. Further, he contended that he is entitled to the benefit of the second proviso to S.11(3) of the Act. The Rent Control Court on an appraisal of the evidence, found that the tenant was a defaulter of rent. Further, it was also found that the landlady requires the building for the purpose of her son and that the tenant is not entitled to the benefit of the second proviso to S.11(3) of the Act. 5. Against the judgment of the Rent Control Court, petitioner preferred RCA No. 6/82 before the Rent Control appellate Authority, Kottayam. The Rent Control appellate Authority by its judgment dated 18.11.1982, copy of which is produced as Ext. P2 in the Original Petition, dismissed the appeal and upheld the findings of the Rent Control Court. Against the judgment of the appellate Authority, petitioner preferred RCRP No. 88/82. The District Court in revision, set aside the order of eviction on the ground of bonafide need, but confirmed the order of eviction on the ground of arrears of rent. P2 in the Original Petition, dismissed the appeal and upheld the findings of the Rent Control Court. Against the judgment of the appellate Authority, petitioner preferred RCRP No. 88/82. The District Court in revision, set aside the order of eviction on the ground of bonafide need, but confirmed the order of eviction on the ground of arrears of rent. Landlady thereafter preferred a revision before this Court as CRP No. 1641/ 83. That revision was dismissed by this Court confirming the finding of the District Court. Thereafter, the landlady filed appeal before the Supreme Court as Civil Appeal No. 310/95. That appeal was disposed of by order dated. 3.1.1995, copy of which is produced as Ext. P3 in the Original Petition. Supreme Court held that the main dispute raised in the appeal was whether the revisional authority committed an error of law in interfering with the order of the court below in exercising its revisional jurisdiction. It was of the view that the matter stands concluded by the decision in Rnkmini Amma Saradammav. Kallyani Sulochana & Ors. (1993) 1 SCC 499-and so the orders passed by the Additional District Judge and the High Court were set aside and the matter was remitted to the Additional District Judge to decide the same afresh in accordance with law. On remand, the Additional District Judge, Kottayam heard R.C.R.P. No. 88/82 again and disposed of the same by order dated. 20.6.1995, copy of which is produced as Ext. P4 in the Original Petition. It found that the order under S.11(2)(b) has been vacated under S.11(2)(c) of the Act. Regarding the contention of bonafides, it found that both the authorities had concurrently held that the landlady's need is bonafide. It also discussed the power under S.20 and held that re-appreciation of the evidence by the revisional court is not called for. It was also held that no irregularity or impropriety' or illegality in the order passed by the appellate Court was brought to its notice. Hence. the revision Petition was dismissed. 6. etitioner thereafter filed O.P.No. 10488/95 under Arts.226 & 227 of the Constitution of India challenging Ext. P4 order. The learned single judge by the impugned judgment dismissed the Original Petition and confirmed Ext. P4 order. Hence, this appeal. 7. e heard learned senior counsel for the appellant Sri. P.C. Chacko and learned counsel for the first respondent Sri. P.G. Parameswara Panicker. P4 order. The learned single judge by the impugned judgment dismissed the Original Petition and confirmed Ext. P4 order. Hence, this appeal. 7. e heard learned senior counsel for the appellant Sri. P.C. Chacko and learned counsel for the first respondent Sri. P.G. Parameswara Panicker. Learned counsel for the appellant contended that a notification was issued by the Government of Kerala as S.R.O 1631/89 by which from the date of that notification, the power of appeal under S.18 of the Act was conferred upon the District Judges having jurisdiction over the areas and the power of appeal exercised by the Subordinate Judges was withdrawn. Hence, according to the learned counsel for the appellant, from the date of the notification (copy of which was produced as Ext. P5) the Subordinate Judges ceased to be the appellate Authorities and the District judges became the appellate Authorities. Learned counsel further contended that the Supreme Court passed Ext. P3 order on 3.1.1995, which is subsequent to Ext. P5 notification and hence, when the matter was remanded to the Additional District Judge, Kottayam, the Additional District Judge ought to have exercised his power under S.18 of the Act and not under S.20 of the Act. He further contended that by disposing of the matter as one under S.20 of the Act, a right of appeal available to the petitioner had been deprived of. He highlighted the ground raised as ground No. E in the Original Petition that he could not produce the additional evidence to show that the benefit of the second proviso to S.11(3) was available to him. 8. Learned counsel for the first respondent contended that this appeal itself is not maintainable. According to him, the learned District Judge exercised his power under S.20 of the Act. Against that judgment only petition under Art.227 of the Constitution will lie. He further contended that a reading of Ext. P3 order of the Supreme Court will show that the matter was remanded to the Revisional Court. It was further contended that the petitioner has not sought to adduce any additional evidence before the District Court and hence, he cannot now contend that he was deprived of an opportunity to adduce additional evidence. 9. It is true mat as per Ext. P5 notification, the District Judges were conferred with the jurisdiction of appellate Authorities under S.18 of the Act. This notification is dated. 31.8.1989. 9. It is true mat as per Ext. P5 notification, the District Judges were conferred with the jurisdiction of appellate Authorities under S.18 of the Act. This notification is dated. 31.8.1989. Prior to that the Subordinate Judges were functioning as the appellate Authorities and the revisions against the orders were being filed in the District Court. In this case also, the original revision order was passed by the District Judge which was confirmed by the High Court under S.115 of the Code of Civil Procedure. Learned counsel for the appellant contended that after Ext. P5 notification came into force, the District judges have no power under the Act to exercise the power under S.20 of the Act. This is not correct. After the notification came into force, Subordinate Judges ceased to be the appellate Authorities. But the orders passed by them before the notification came into force as appellate Authorities, were subject to revision before the District Court under S.20 of the Act. S.20 of the Act is also clear that when the appellate Authority is the subordinate judge, revision will lie to the District Judge. In this context, we refer to two decisions of this court in Joseph v. Malathy Amma -1989 (2) KLT 953 - and Malhew v. Gilbert -1990 (1) KLT 139. Krishnamoorthy, J. held that revisions will lie against the orders passed by the appellate Authorities before the notification came into force. These two decisions were approved in the Division Bench decision reported in Vasu v. Palhooty -1990 (1) KLT 670. We endorse the view taken by the Division Bench. Hence, it cannot be said that the District Judges cannot pass orders on revision petitions filed against the orders passed by the Subordinate Judges as appellate Authorities. 10. In the present case, the order of the Supreme Court is Ext. P3. A reading of the Order will show that the Supreme Court was deciding on the powers exercised by the Revisional Court under S.20 of the Act and it found that the revisional power exercised was not in accordance with the decision in Rukmini Amma Saradamma V. Kallyani Sulochana & Ors. - (1993) 1 SCC 499. In the above view of the matter, the Supreme Court held that the order passed by the Additional District Judge or the High Court cannot be maintained. - (1993) 1 SCC 499. In the above view of the matter, the Supreme Court held that the order passed by the Additional District Judge or the High Court cannot be maintained. Hence, the orders passed by the District Court and the High Court were set aside and the matter was remitted to the Additional District Judge to decide the same afresh in accordance with law. Thus, the Supreme Court remanded the matter to the Additional District Judge to properly exercise its power under S.20 of the Act. Learned counsel for the appellant submitted that since the matter was remitted to the Additional District Judge and the Additional District Judge, at the time of passing Ext. P3 order was exercising the power of the appellate Authority under the Act, the intention would have been that the Additional District Judge should have disposed of the matter under S.18 of the Act. We do not agree with this. As already stated, the Supreme Court set aside the orders passed by the Additional District Court and the High Court on the ground that the revisional powers were not properly exercised. Hence, the matter was remanded to the Additional District Court. In such circumstances, the remand was only to the Revisional Court. Then, there is nothing wrong in this because the order in appeal in this case was passed prior to Ext. P5 notification and hence, the District Judge was competent to hear the matter under S.20 of the Act. The Additional District Judge was correct in exercising its powers under S.20 of the Act. 11. Learned counsel for the appellant then submitted that as a matter of fact, his client was deprived of adducing evidence before the Revisional Authority, since according to him, if the matter had been heard as an appeal he could have adduced evidence. First of all, such a contention-was not raised before the learned Additional District Judge when he considered and passed Ext. P4 order. Further, it has now been settled that the Revisional Court, under S.20 of the Act, is also entitled to admit fresh evidence - Vide Kerala Sugar Agencies v. Jose -1992 (1) KLT 635. Appellant never attempted to file any additional evidence before the Additional District Judge. The only contention now taken by the appellant is that he could have adduced further evidence to show that there were no alternate buildings available when Ext. Appellant never attempted to file any additional evidence before the Additional District Judge. The only contention now taken by the appellant is that he could have adduced further evidence to show that there were no alternate buildings available when Ext. P4 order was passed. Even before the learned single judge or before us he has not adduced any evidence to show mat buildings were not available. Further, contention of the appellant's counsel cannot be accepted, because under the proviso to S.11(3) of the Act, the position as on the date of filing of the application is to be considered. If buildings were available at the time when the land lady requested for own occupation and the tenant neglected to enquire regarding the availability of the building, then he cannot contend that those buildings which were available had been rented out during the course of the litigation. If that be so, in every case the tenant will be able to stultify a petition filed by the landlord under S.11(3) of the Act by protracting the litigation. This is not the law. If the tenant is not able to prove the claim under the second proviso to S.11(3) of the Act that no alternate buildings were available at the time when the application for eviction was made, he cannot later contend that no buildings were available when the final order in the revision was passed. We find no grounds in the contentions raised by the appellant. We may also here mention that we have not considered the question of maintainability of this appeal as we find, on merit, that the appellant has no case. Writ appeal is dismissed.