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2009 DIGILAW 806 (KER)

Sasikumar v. R. C. R. P. No. 192 of 2009

2009-08-25

K.SURENDRA MOHAN, PIUS C.KURIAKOSE

body2009
Judgment : K. Surendra Mohan, J. This is a tenants’ revision against an order of eviction passed by the Rent Control Court, Neyyantinkara, in R.C.P. No.15/2000 and confirmed by the Rent Control Appellate Authority, Thiruvananthapuram, R.C.A. No.31/2006. 2. The Rent Control Petition was filed in respect of two shop rooms occupied by the revision petitioners/tenants. One tenant is conducting a medical store while the other is conducting a bakery. The landlady claimed eviction on the grounds of arrears of rent (S.11(2)(b)) and bona fide own occupation (S.11(3)) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act" for short. The Rent Control Court found that the ground under S.11(2)(b) was not available to the landlady for the reason that a notice of demand, as contemplated by the Section, had not been served on the tenants. The said finding has become final. Therefore, the only ground that survives is the ground under S.11(3). 3. According to the landlady, her husband is an air conditioner mechanic working in the Gulf. He has returned to his native place and he is unemployed now. The rooms, according to the landlady, were needed for starting a workshop for conducting the repairs and maintenance of refrigerators, air conditioners and other similar equipments. 4. The need was resisted by the revision petitioners disputing the bona fides of the landlady and contending that there were no other suitable buildings available in the locality for shifting the business. According to them, there was no privity of contract between them and the respondent. The original landlord was Sri. Sreedharan, who was no more and on his death, the property had devolved on all his legal heirs. Thereafter by partition, the landlady had acquired title to the two shop rooms. The Rent Control Petition was tried by the Rent Control Court on the above pleadings. 5. The evidence in the case consists of the oral evidence of Pws 1 to 4 and Dws 1 to 3, and Exts.A 1 to A10, Ext.B1, Ext.X1, Exts.C1 and C2 documents. 6. On a consideration of the evidence on record, the Rent Control Court found that the landlady had successfully established the need under S.11(3), and therefore, was entitled to an order of eviction. It has also been found that the tenants were not entitled to the benefits of the proviso to S.11 (3) of the Act. 6. On a consideration of the evidence on record, the Rent Control Court found that the landlady had successfully established the need under S.11(3), and therefore, was entitled to an order of eviction. It has also been found that the tenants were not entitled to the benefits of the proviso to S.11 (3) of the Act. Though the findings of the Rent Control Court were challenged before the Rent Control Appellate Authority in R.C.A. No.31/2006, the Appellate Authority has also confirmed the order of eviction passed by the Rent Control Court. This Revision Petition is filed against the said concurrent findings of the authorities below. 7. Sri. M.P. Madhavankutty, who appears for the revision petitioners/tenants, has submitted that there was misjoinder of causes of action in the above case and that the Rent Control Petition was not maintainable in respect of the petition schedule shop rooms. He also placed reliance on the Full Bench decision of this court in Jamal v. Safia Beevi (2005 (2) KLT 359 (F.B)) and also the decision in Annie George v. Jamal (2003 (2) KLT 530). The counsel has further contended that the R.C.P. was not maintainable for the additional reason that the same was filed before the expiry of the one year period stipulated by the 3rd proviso to S.11(3) of the Act. According to the learned counsel, the landlady became the absolute owner of the petition schedule shop rooms only under the partition deed and since the Rent Control Petition was filed before the expiry of the statutory period stipulated by the third proviso to S.11(3), the Rent Control Petition itself was not maintainable. 8. We have heard the learned counsel in detail and have perused the documents as well as the decisions relied on by the learned counsel. The main question that arises for consideration is whether the concurrent findings of the authorities below that the need projected by the landlady was bona fide is liable to be interfered with in revision. 9. The question whether a landlord was entitled to file a single Rent Control Petition against different tenants in respect of different causes of action was considered by a Full Bench of this Court in the decision reported in Jamal v. Safia Beevi (supra). 9. The question whether a landlord was entitled to file a single Rent Control Petition against different tenants in respect of different causes of action was considered by a Full Bench of this Court in the decision reported in Jamal v. Safia Beevi (supra). After having considered the provisions of the Rent Control Act in detail and after having surveyed the decisions on the point, the Full Bench has formulated and laid down the principles subject to which causes of action could be united in a Rent Control Petition. The answers given by the Full Bench on the questions referred to it for decision are extracted hereunder. "We therefore answer the questions as follows: (i) Landlord can unite several causes of action against single tenant if he is occupying the same building in the event of which there will not be misjoinder of causes of actions and misjoinder of parties since tenant is single tenant occupying the same structure. (ii) Landlord can prefer an application under S.11(4)(iv) against various tenants who are occupying distinct portions of the same structure since the tenants are jointly interested in the causes of action and the defence available to all the tenants would be by and large common and hence there will not be any misjoinder of causes of actions or misjoinder of parties. (iii) Landlord cannot unite different causes action in a single petition filed against various tenants whether they are in occupation of same building or different building. Such a petition would be bad for misjoinder of causes of actions and misjoinder of parties. (iv) Objection as to the misjoinder of causes of actions and misjoinder of parties should be taken at the earliest opportunity; failing which Court would not interfere unless it is shown that serious prejudice has been caused to the parties. (v) Rent Control Court can consolidate the applications for eviction if there are similarity or identity of the matters in issue in the petitions which is to be left to the discretion of the Rent Control Court, depending upon the facts and circumstances of each case." 10. The above authoritative pronouncement of the Full Bench lays down that the landlady is permitted to unite several causes of action against two different tenants in an action under S. 11(4)(iv) of the Act and also in the case of a single tenant occupying the full shop room. The above authoritative pronouncement of the Full Bench lays down that the landlady is permitted to unite several causes of action against two different tenants in an action under S. 11(4)(iv) of the Act and also in the case of a single tenant occupying the full shop room. This Court has further held that objections as to misjoinder of causes of action and misjoinder of parties should be taken at the earliest opportunity, failing which the Court would not interfere unless it is shown that serious prejudice has been caused to the parties. In the present case, admittedly the objection regarding misjoinder was not raised either before the Rent Control Court or before the Appellate Authority and has been raised only before this court, in this revision. Therefore, the said objection cannot be permitted to be raised for the first time in revision. Further, the counsel has not been able to show that any serious prejudice has been caused to the parties by reason of the fact that a single Rent Control Petition was filed in respect of the two shop rooms occupied by the revision petitioners. Therefore, we reject the above contention of the tenant. 11. The other contention that is raised by the counsel for the petitioners is that the partition that was effected among the legal heirs of late Sreedharan- the original landlord, was a transfer inter vivos, hit by the 3rd proviso to S.11(3). He has also relied on the decision reported in Balakrishnan v. Orakkal Neethu (2008 (1) KLT 360). However, it is to be noted that the respondent landlady had acquired title in respect of the petition schedule premises by succession, immediately on the death of her father and was a co-owner of the shop rooms along with the other legal heirs. In the decision relied on by the counsel for the revision petitioners, it has been held that testamentary succession on the death of the testator can in no way be described as transfer between two living persons and therefore acquisition of property by testamentary succession was not transfer inter vivos. At page 362 of the said decision, this court has held as follows: 5. At page 362 of the said decision, this court has held as follows: 5. The third proviso to S.11(3) of the Act reads as follows: "Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument". Black's Law Dictionary defines "inter vivos" as "between living persons". So, transfer inter vivos means a transfer between living persons. So, the testamentary succession on the death of the testator can in no way be described as transfer between two living persons. Therefore, the contention of the learned counsel for the petitioner that the testamentary succession involved in this case is a transfer inter vivos is plainly untenable. 6. The definition of the landlord, contained under S.2(3) of the Act, is an inclusive definition. In other words, it is not exhaustive. The ordinary meaning of the landlord is not excluded by the said definition. By the death of the grandmother, the respondent herein became the owner and therefore she is entitled to receive the rent for the building. Therefore, the contention of the learned counsel for the petitioner that she is not a "landlord" for the purpose of the third proviso to S.11(3) of the Act is also manifestly untenable." The property in this case was acquired by the landlady by way of intestate succession. Thereafter the petition schedule premises were only allotted to her by partition. The said partition among co-owners cannot be described as transfer inter vivos. Partition is the technical device by which a co-ownership is determined and converted into ‘sole ownership’. Thus, on partition, the ownership rights of a co-owner that had earlier extended over the entire co-ownership property or properties gets confined and restricted in respect of a particular property or properties over which the sharer becomes the absolute owner. Even as a co-owner, the respondent landlady was competent to maintain the Rent Control Petition for eviction of the revision petitioners. In view of the above, the said contention of the revision petitioners is also without substance. 12. As a last plea, the counsel for the revision petitioners requested for one year's time to vacate the premises. However, we feel that there is no justification for granting such a long period of time. In view of the above, the said contention of the revision petitioners is also without substance. 12. As a last plea, the counsel for the revision petitioners requested for one year's time to vacate the premises. However, we feel that there is no justification for granting such a long period of time. Nevertheless a reasonable time could be granted, for the tenants to vacate the premises subject to conditions. Therefore, the Rent Control Revision is dismissed subject to the following conditions: i) The tenants shall file separate affidavits before the Rent Control Court or the Execution Court, as the case may be, within a period of three weeks from today undertaking to vacate the petition schedule shop rooms on or before 31.3.2010. ii) The tenants shall pay all arrears of rent, if any, remaining unpaid till date and shall also continue to pay the rent in respect of the petition schedule premises regularly till they surrender vacant possession of the premises. The landlady shall be free to execute the order of eviction against the tenants in the event of the tenants not complying with any of the above conditions.