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2000 DIGILAW 447 (KER)

Sulthan v. Mohanan

2000-08-24

P.K.BALASUBRAMANYAN, T.M.HASSAN PILLAI

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Judgment :- P.K. Balasubramanyan, J. The respondent in R.C.P. 13 of 1994 on the file of the Rent Control Court, Irinjalakuda being the tenants of a non-residential building are the petitioners in this Revision filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act. The landlords of the building, respondents herein filed the said application for eviction of the tenants under sub-s.2 and 4(iv) of S.11 of the Act. There were three schedules to the petition. A schedule had two shop rooms bearing Nos. 553/3 and 556/3, B Schedule had two rooms bearing No. 557/3 and C schedule had a room bearing No. 559/3. These three schedule rooms were in the possession of different tenants. Each of these schedules constituted a building as defined in the Act. But all these rooms were part of a larger structure or building. The landlord filed a common application for eviction of the tenants in respect of all the rooms on the plea that the entire building was in such a condition that it needed reconstruction and the landlord bonafide required to reconstruct the same and that he has the ability to rebuild the building. The case of the landlord was that the entire structure required reconstruction. We are not referring to the claim under S.11(2) of the Act on the ground of arrears of rent since that aspect was not projected before us at the hearing. 2. The tenants resisted the application for eviction on the ground of reconstruction. They pleaded that a single application for eviction of two sets of tenants from two sets of buildings as defined in the Act was not maintainable. They also resisted the claim for eviction on the ground of re-construction by submitting that the building was not in such a condition that it needed reconstruction. They pleaded that the claim was a pretext for eviction. 3. Before the Rent Control Court the question of misjoinder of causes of action or the non-maintainability of the application because it was a composite one relating to two tenancies was not agitated. The tenants made no attempt to get a point raised on that question or to seek an adjudication on that question from the Rent Control Court. On the other hand a plea of non joinder was raised which was rejected by the Rent Control Court. The tenants made no attempt to get a point raised on that question or to seek an adjudication on that question from the Rent Control Court. On the other hand a plea of non joinder was raised which was rejected by the Rent Control Court. The Rent Control Court on a consideration of the relevant materials came to the conclusion that the building was in such a condition that it needs reconstruction and the landlord bonafide required the building, the entire structure, for reconstruction. Thus the Rent Controller passed an order for eviction under S.11(4)(i v) of the Act with the corresponding right in the tenants to get back the building on tenancy on reconstruction. The tenants filed an appeal. Their contention that the building was not in such a condition that it required reconstruction within the meaning of S.11(4)(iv) of the Act was found to have no substance by the Appellate Authority. In other words the Appellate Authority agreed with the Rent Controller in holding that the building was in such a condition that it needed reconstruction and that the landlord bonafide needed the building for reconstruction. Before the Appellate Authority the contention that a single application for eviction of two sets of tenants from two sets of buildings as defined in the Act was not maintainable was urged. Two unreported decisions of this court one in C.R.P. 2714 of 1992 and the other in C.R.P. 2608 of 1998 were relied on in support. The Appellate Authority after referring to those decisions and after referring to the decision of the Supreme Court in S.M.G. Chetty v. Ganeshan (AIR 1975 SC 1750) came to the conclusion that the objection to the maintainability of a single application was not sustainable. Thus the Appellate Authority rejected that contention and confirmed the order for eviction. This is what is challenged in this Revision by the tenants. 4. Though learned counsel for the tenants made an attempt to challenge the finding of the authorities below that the building was in such a condition that it needed reconstruction and that the landlord bonafide required the same for reconstruction, we do not see much merit in that contention. Relevant facts and circumstances referred to by the Rent Control Court and the Appellate Authority clearly justify the finding that the landlord was entitled to an order for eviction under S.11(4)(iv) of the Act. Relevant facts and circumstances referred to by the Rent Control Court and the Appellate Authority clearly justify the finding that the landlord was entitled to an order for eviction under S.11(4)(iv) of the Act. We see no error in the finding rendered in that behalf by the authorities below warranting interference in Revision. 5. In fact, the main point that was urged before us by learned counsel for the revision petitioners was regarding the maintainability of a single petition for eviction of two sets of tenants from two sets of buildings as defined in the Kerala Buildings (Lease and Rent Control) Act. According to counsel the buildings were let out under independent entrustments to two tenants originally and hence the landlord was obliged to file two separate applications for eviction. Counsel pointed out that the decision of the Supreme Court in S.M.G. Chetty v. Ganeshan (AIR 1975 SC 1750) relied on by the Appellate Authority cannot help the landlords in this case since in the case dealt with by the Supreme Court on facts it was clear that there was only one tenancy and not two tenancies as in the present case. In that context learned counsel urged that in the decision in C.R.P. 2714 of 1992 this court had expressed the view that a single application in such circumstances would not be maintainable though in that particular case their Lordships did not interfere with the order for eviction on that ground in view of the fact that such an objection was not taken before the Rent Control Court and the Appellate Authority. Counsel also relied on the decision in C.R.P. 2608 of 1998 to point out that that was also a case for reconstruction of a building consisting of several rooms which were buildings within the definition of 'building' in the Act and the Revisional Court held that a single application against all the tenants was not maintainable. Counsel urged that in the light of those decisions the order passed by the Appellate Authority was liable to be interfered with. Counsel urged that in the light of those decisions the order passed by the Appellate Authority was liable to be interfered with. Counsel for the landlords on the other hand submitted that the plea that a single petition was not maintainable was only procedural and the tenants not having pursued that objection before the Rent Control Court, they are not entitled to urge it for the first time before the Appellate Authority or seek the dismissal of the application for eviction by this court in Revision. Counsel submitted that the building that is referred to in S.11(4)(iv) of the Act can as well be the entire structure in the context of a particular case and therefore the emphasis placed on the definition of building in the Act could not be of much help. Counsel pointed out that the definition of building in the Act cannot be applied while considering a case under S.11(8) of the Act and in the context of S.11(4)(i v) of the Act and the idea behind that provision, and in appropriate cases the expression 'building' used in that provision could also be the entire structure and not the defined building. Counsel also submitted that the decision in C.R.P. 2714 of 1992 and C.R.P. 2608 of 1998 are both distinguishable. 6. On principle it appears to us that when a landlord seeks eviction on the ground that the building needs reconstruction, what the landlord is projecting is the need to reconstruct the entire structure and not some of the rooms in the building, which could also qualify as a building as per the definition contained in the Act. Normally a landlord - unless there be exceptional cases - cannot ask for reconstruction of only one room in the very many rooms in a building or a structure. He could only ask for a renovation as provided under S.11(5) of the Act. So when a reconstruction is involved with the corresponding obligation in the landlord to offer the reconstructed building to the tenant or tenants, reconstruction can only be of the entire structure or of the one building of which the various rooms form part and in such a situation, an application for eviction can be and in fact ought to be, of the entire structure and not of the various units in that structure. What is important is that when a landlord seeks an order for eviction on the ground of reconstruction, the occupants-tenants shall be given an opportunity to resist the claim and all that is needed is to implead all the tenants in occupation so as to give them that opportunity of being heard. That has happened in this case. The landlord had made the application for eviction of the entire structure impleading all the occupants of that structure. All the occupants had been given the right to object. We may also notice here that in the case on hand, even though in the objection filed before the Rent Controller an objection to the maintainability of a single petition for eviction was put forward, that aspect was not pursued by the tenants before the Rent Controller and no adjudication on that question was sought for from the Rent Controller. For, in case an adjudication had been sought for and the Rent Controller had found substance in that objection, the landlord could have, made separate applications for eviction and cured whatever defect there might have been in the petition for eviction. After all, even if separate applications for eviction were to be filed, it would be in the fitness of things for the Rent Control Court to try and dispose of all those applications together since the issue involved would be whether the entire structure or building in the occupation of the various tenants was in such a condition that it needed reconstruction and whether the landlord bonafide required the building for reconstruction. On principle therefore we see no objection to a single petition being maintained for eviction when the claim for reconstruction relates to the entire structure consisting of various buildings as defined in the Kerala Buildings (Lease and Rent Control) Act. 7. But we must notice that in the decision in C.R.R 2714 of 1992 the Division Bench has suggested that a single application may not be maintainable. But we see from the said decision that ultimately this court did not interfere with the order for eviction on the ground that this point was not urged at the appropriate time and at the inception. In fact we may notice that a learned Single Judge of this court in the decision in Devassia v. St. Mary's Forane Church (1983 K.L.T. 172) held that a single petition was maintainable. In fact we may notice that a learned Single Judge of this court in the decision in Devassia v. St. Mary's Forane Church (1983 K.L.T. 172) held that a single petition was maintainable. The order in C.R.R 2608 of 1998, with respect, cannot be taken as an authority for the position canvassed. In that case even a separate application filed in respect of the legal representatives of one of the tenants who had been originally impleaded in the petition but who had died pending the proceeding was also held to be not maintainable. With respect if a single petition was not maintainable, independent applications filed by the landlord against the legal representatives of one of the tenants who died pending the main petition as against that tenant, was certainly maintainable. That apart, in C.R.R 2608 of 1998 the aspect that what is involved in such a claim is the reconstruction of the entire structure or building and not of a unit in it has not been considered. Even then, if we were to differ from the conclusion reached in that decision, we would have been normally inclined to refer the question to a Full Bench. But in this case, we do not think that such a course is necessary because according to us, in view of the fact that the tenants did not pursue this objection at the inception before the Rent Control Court they are precluded from agitating this contention at the appellate or revisional stage. According to us an objection as to the misjoinder of causes of action or the maintainability of a petition merely because of the clubbing together of the causes of action is only a procedural objection that ought to be taken in the very beginning and pursued then and there. Our view seems to be supported by the decision of the Allahabad High Court in Jamiluddin v. Shamsuddin (1999(2) RCJ 319). Moreover here we cannot say that the causes of action for the claim of reconstruction are different in respect of the various defined buildings. Reconstruction sought for is of the entire building consisting of the various rooms and the cause of action is the cause of action for reconstruction of the entire structure. Moreover here we cannot say that the causes of action for the claim of reconstruction are different in respect of the various defined buildings. Reconstruction sought for is of the entire building consisting of the various rooms and the cause of action is the cause of action for reconstruction of the entire structure. In such a situation, we are of the view that the tenants having failed to pursue this objection before the Rent Control Court, they are not entitled to agitate that claim before the Appellate Authority for the first time or before this court in Revision. We are therefore of the view that in this case the question does not loom large and therefore we do not think it necessary to refer the matter to a Full Bench for reconsideration of the decision in C.R.R 2608 of 1998. In the view we have taken as above, we see no merit in the contention sought to be raised by counsel for the revision petitioners. We therefore reject that contention. Since we find no illegality, irregularity or impropriety in the orders of the Rent Controller and the Appellate Authority, we confirm the order of the Appellate Authority and dismiss this Revision. We make no order as to costs.