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2001 DIGILAW 37 (KER)

Sara Umma v. Moideen

2001-01-16

A.LEKSHMIKUTTY, S.SANKARASUBBAN

body2001
Judgment :- S. Sankarasubban, J. Both these Civil Revision Petitions are filed against the judgment in R.C.A. No. 15 of 1996. While C.R.P. No. 597 of 1997 is filed by the appellants in the R.C. Appeal, the other Civil Revision Petition is filed by the respondents 1 and 2 in the appeal. The original proceeding is R.C.P. No. 51 of 1990. The Rent Control Petition was filed by the landlord for eviction of respondents 1 to 3 in the Rent Control Petition, under Ss.11(2), 11(3), 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act (hereinafter referred to as 'the Act'). The facts stated in the Rent Control Petition are as follows: 2. The petition schedule property was leased out to Chemmanath Poker from Nilamboor Kovilakam in 1920. Poker had constructed a house in the property and entrusted the same for a rental of Rs. 10/- per month in favour of one Cheriya Moideen Bava @ Chellaman Rauthar on 5.6.1960. After the death of Chellaman Rauther, his legal heirs who are R1 to R3 were in occupation of the petition schedule property. The first petitioner had taken assignment of the petition schedule property inclusive of the building as per registered document dated 20.4.1961 from Chemmanath Poker. Subsequently, R1 to R3 had failed to attorn to the petitioner or to pay any rent. Due to lack of proper maintenance the house in the property was completely demolished and a registered lawyer notice was issued by the first petitioner for surrender of possession of the petition schedule property. In the reply notice, R1 to R3 had contended that Pocker had executed an agreement to assign the petition schedule property for a consideration of Rs. 500/- and a sum of Rs. 400/- was paid by them as advance consideration. The first petitioner had filed O.S. No. 669 of 1968 for a decree for recovery of possession of the property. R4 to R6 were also impleaded in the suit. The suit was initially dismissed by the Munsiff's Court, Manjeri. But in appeal, the first appellate court had set aside the dismissal and decreed the suit as per judgment dated 13.8.1982. R5 to R6 had challenged the decree before this Court in S.A. No. 929 of 1982. R4 to R6 were also impleaded in the suit. The suit was initially dismissed by the Munsiff's Court, Manjeri. But in appeal, the first appellate court had set aside the dismissal and decreed the suit as per judgment dated 13.8.1982. R5 to R6 had challenged the decree before this Court in S.A. No. 929 of 1982. In the Second Appeal, R5 and R6 contended that since the building is in their occupation by virtue of an entrustment for rent by the predecessor in interest of the petitioner, the proper remedy available to the petitioner is to file an application as per the provisions of the Act. The above contention was accepted by this Court and S.A. No. 929 of 1982 was disposed of. On 16.8.1990, a registered lawyer notice was issued by the first petitioner to the respondents for eviction on the grounds mentioned in the petition. 3. Obviously, notice was addressed to respondents 1 to 3 and copies were sent to respondents 4 to 6. In the Rent Control Petition, respondents 1 to 4 did not file any objection. Respondents 5 to 7 filed objections. They took the contention that the findings in S.A. No. 929 of 1982 are not binding on them as the suit was ultimately dismissed. According to them, the property belongs to them, the building was constructed by them and hence, the Rent Control Petitioner will not lie. Further, it was submitted that the bonafide need alleged is not true and that the petitioners are not entitled to eviction under the Act. 4. The Rent Control Court raised five issues. The first point was whether the petition was maintainable. The tenants wanted the first point to be decided preliminary and hence, that was decided preliminary. The Rent Control Court found that the petition was maintainable. Against that, an appeal was filed, which was dismissed and a revision was filed before this Court as C.R.P. No. 1761 of 1995. A Division Bench of this Court dismissed the Civil Revision Petition holding that the petition was maintainable. Before the Rent Control Court the petitioners were examined as PWs.1 and 2 and the first respondent was examined as RW1. Exts. A1 to A27 and Exts. B1 to B9 were marked on the side of the parties. The Rent Control Court, on an appreciation of the evidence, found that the building was required for bonafide use of the petitioners. Before the Rent Control Court the petitioners were examined as PWs.1 and 2 and the first respondent was examined as RW1. Exts. A1 to A27 and Exts. B1 to B9 were marked on the side of the parties. The Rent Control Court, on an appreciation of the evidence, found that the building was required for bonafide use of the petitioners. It found that respondents 5 to 7 were only the assignee by the sublessee. Hence, they are liable to eviction under S.11(4)(i) of the Act. It also found that respondents 5 and 6 had another building in their possession. Hence, eviction was ordered under 11(4)(iii) of 11(4)(iii) of the Act. An appeal was filed against the above order. The Appellate Court upheld the findings under S.11(3) of the Act. Regarding subletting, it was found that notice under S.11(4)(i) of the Act was not sent to the tenants. It also set aside the findings under S.11(4)(iii). The tenants filed a revision against the order under S.11(3) of the Act, while the landlords filed a revision against the rejection on the ground under Ss.11(4)(i) and 11(4)(iii) of the Act. During the pendency of the revision, the first petitioner in the Rent Control Petition died and his legal representatives have been impleaded. 5. We heard learned counsel for the tenants Sri. K.M. Sathianatha Menon and learned counsel for the landlords Sri. A.P. Chandrasekharan. 6. Sri. Sathianatha Menon tried to argue that the Rent Control Petition was not maintainable on the ground that the building in question was not constructed by the petitioners in the Rent Control Petition and that there was no landlord-tenant relationship between the petitioners and respondents 5 to 7. Learned counsel submitted that at the most, the property belonged to the petitioners and there cannot be a subject matter for the dispute in the Rent Control Petition. We then put to the counsel for the tenants that the question was decided earlier and it was held to be maintainable by Court. That order was confirmed in appeal by the Rent Control Appellate Court and in revision by a Division Bench of this Court. Hence, we told the counsel that the above question cannot be opened, because it has been concluded. That order was confirmed in appeal by the Rent Control Appellate Court and in revision by a Division Bench of this Court. Hence, we told the counsel that the above question cannot be opened, because it has been concluded. Learned counsel tried to argue that in spite of the fact earlier the matter was taken before this Court, it was only an interlocutory order and that this Court is bound to consider that question again. Learned counsel cited many decisions before this Court. The first decision cited was T.S. Pichu Ayyangar v. Sri. Perarulala Ramanuja Jeer Swamigal, Dhramakartha and Manager of Sri. Alagianambiravar Temple, AIR 1940 Madras 756. He also cited the decisions wherein the courts have held that suppose a decree is granted by a court without jurisdiction, that contention can be taken before the Executing Court, He further contended in support of this proposition that since the Second Appeal was allowed and the suit for recovery of possession was dismissed, whatever said in the second appeal is not binding on respondents 5 to 7. We are unable to accept this contention of the counsel for the petitioners. Respondents 5 to 7 raised the contention of maintainability of the Rent Control Petition earlier. Exts. A to A 25 and Exts. B1 to B7 were marked and the question of maintainability of the petition was considered., The Rent Control took the view that in Second Appeal No. 929 of 1982, this Court has held that the petitioners can be evicted only under the Act and that finding acts as estoppel. The above finding was challenged under S.18 of the Act before the Appellate Authority. The appeal was dismissed. A revision was taken before this Court under S.20 of the Act as C.R.P. No. 1761 of 1995. This Court dismissed the Civil Revision Petition. The Division Bench held as follows: "In view of the definite stand taken by the tenants in the earlier proceedings that no suit is maintainable for recovery of possession but only an application under Rent Control Act is maintainable seeking their eviction. They are now estopped to take a contention that the matter has to be referred to civil court on the basis of a dispute raised relating to the title to the building. They are now estopped to take a contention that the matter has to be referred to civil court on the basis of a dispute raised relating to the title to the building. Apart from the above, in the Second Appeal this Court has come to the definite finding that the present revision petitioners were only tenants in respect of the building and that they are having all the rights under the Rent Control Act". Thus, there has been a definite finding by this Court that the Rent Control Petition is maintainable. 7. As already stated, learned counsel for the petitioner relied on the Madras decision reported in T.S. Pichu Ayyangar v. Sri. Perarulala Ramanuja Jeer Swamigal, Dhramakartha and Manager of Sri. Alagianambirayar Temple, AIR 1940 Madras 756. In that case, an application was made by the worshippers of Sri Alagianambirayar Temple in the Tinnevelly District to the Madras Hindu Religious Endowments Board for an order directing an inquiry to be held into the question whether the Board should frame a scheme for the administration of the temple and its endowments. The Board held an inquiry and as the result of the investigation decided that it was not necessary to frame a scheme. The applicants then filed a suit in the Court of the District Judge of Tinnevelly with the object of obtaining the settlement of a scheme under a decree of the court. The suit was defended by the trustee. The main objection was that the court had no power to frame a scheme. On this question, a preliminary issue was framed and was answered by the District Judge in favour of the plaintiffs. The Court held that the court has jurisdiction. The respondent filed a revision before the High Court. The learned judge while allowing the petition, dismissed the suit. On the order being communicated to him the District Judge passed a formal decree dismissing the suit with costs. The appeal was from that decree. An objection was raised by the respondent that the earlier order passed by the learned judge that the suit is not maintainable has become final and therefore, an appeal does not lie. Regarding this, the court has discussed the jurisdiction under S.115 of the Code of Civil Procedure and stated that the above section only contemplates an order which is appropriate to the application. Regarding this, the court has discussed the jurisdiction under S.115 of the Code of Civil Procedure and stated that the above section only contemplates an order which is appropriate to the application. It found that the order of the learned Judge, Venkataramana Rao, J. dismissing the suit was not appropriate. It was further held that having decided that the District Judge had erred on the preliminary issue he should have set aside his ruling and directed the District Judge to dispose of the suit itself. The order pf Venkataramana Rao, J. was an interlocutory order and the preliminary objection must be decided on this footing. The learned judge relied on S.105 of the Code of Civil Procedure. It was held that as the result of the order, the District Judge was left with no other course open to him but to dismiss the suit. Therefore, the order is one which directly falls within sub-s.(1) of S.105. 8. Learned counsel also relied on the decision reported in Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors., (1993) 2 Supreme Court 507, wherein it was held that a decree passed without jurisdiction is a nullity. In the decision in Waris Khan & Ors. v. Ahmadullakhan & Ors., AIR 1952 Nagpur 238, it was held that where the appeal succeeds, the adverse finding against the appellant contained in the judgment does not operate as res judicata. The decision in Corporation of Madras v. P.R. Ramachandriah & Ors., AIR 1977 Madras 25 is to the same effect. According to us, the decision reported in T.S. Pichu Ayyangar v. Sri. Perarulala Ramanuja Jeer Swamigal, Dhramakartha and Manager of Sri. Alagianambirayar Temple, AIR 1940 Madras 756 is distinguishable. There, the learned judges found fault with the order, whereby the learned Judge Single exceeded his jurisdiction under S.115 of the Code of Civil Procedure and hence, held that there is a case where S.115(1) of the Code of Civil Procedure applies. 9. So far as the other decisions cited are concerned, according to us, they are not relevant for the point in question. Under S.18 of the Act, an order passed by the Rent Control Court is appealable and when that remedy has been availed by a party, he cannot further say that the order passed in the appeal is not binding on him. Under S.18 of the Act, an order passed by the Rent Control Court is appealable and when that remedy has been availed by a party, he cannot further say that the order passed in the appeal is not binding on him. Further, we find on a perusal of the orders that the contentions of both the parties have been elaborately considered in the orders and it has come to the finding that the petitioners are estopped from raising the contention that the suit should be filed for eviction. The orders passed earlier were passed on merit. Hence, according to us, the question whether the Rent Control Petition is maintainable or not is liable to be considered again. 10. The next question is whether the court below was right in ordering eviction on the ground of bonafide need. The bonafide need alleged is for the second petitioner, who is the son of the first petitioner. He contended that the need alleged is for the purpose of residence and for the purpose of business. It has come in evidence that has no other building except the family building. Both the courts have found that the need alleged is true. During the pendency of the revision petitions, the first petitioner in the Rent Control Petition died and his legal representatives have been impleaded. The legal heirs have not raised any objection against the need for the second petitioner. We uphold the eviction under S.11(3) of the Act. Admittedly, respondents 5 to 7 are not entitled to the benefit of the proviso, because they are not tenants. We dispose of C.R.P. No. 597 of 1997. 11. So far as C.R.P. No. 1502 of 1997 filed by the landlord is concerned, it is against the finding of the Appellate Authority rejecting the ground of eviction under S.11(4)(i) and S.11(4)(iii) of the Act. The trial court granted eviction under S.11(4)(i) of the Act. But the Appellate Authority rejected it on the ground that as per the proviso, no request was made. This is not factually correct. It can be seen from Ext. A9 that a registered notice was issued to the tenants for filing of the petition. In the petition, it is clearly stated that the tenants have transferred their rights unauthorisedly. Hence, we uphold the finding of the trial court. This is not factually correct. It can be seen from Ext. A9 that a registered notice was issued to the tenants for filing of the petition. In the petition, it is clearly stated that the tenants have transferred their rights unauthorisedly. Hence, we uphold the finding of the trial court. According to us, the landlord cannot get eviction under S.11(4)(iii) of the Act, because what is stated is that respondents 5 and 6 have another building in their possession. According to the petitioners in the Rent Control Petition, the tenants are respondents 1 to 3. There is no case that respondents 1 to 3 have no other building. Hence, we agree with the Appellate Court that eviction under S.11(4)(iii) of the Act is not available, even though it was on different reasoning. 12. In the result, the order of eviction passed by the Rent Control Court under S.11(3) and S.11(4)(i) of the Act is upheld. The ground of eviction under S.11(4)(iii) of the Act is vacated. The petitioners in C.R.P. No. 597 of 1997 are given two months time from today to vacate the building, in case they file an undertaking before the Rent Control Court within two weeks from today that they will unconditionally vacate the building on the expiry of two months from today. If such an undertaking is not filed, the landlords can evict the petitioners without delay. C.R.Ps. are disposed of as above.