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2017 DIGILAW 1079 (KER)

Nazar, Thalasserry v. K. P. Naseema, Thalasserry

2017-07-26

K.HARILAL, P.SOMARAJAN

body2017
JUDGMENT : Somarajan, J. 1. These are the two Revisions by the tenants against the concurrent findings rendered under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’), by the Rent Control Court as well as the Rent Control Appellate Authority, in two Rent Control Petitions filed by the same landlord against the respective tenants, who are the husband and wife. 2. During the pendency of these Revisions, two applications were filed; I.A.No.1494 of 2017 in R.C.R.No.8 of 2017 is filed by the tenant, under Order VI Rule 17 of the Code of Civil Procedure, for the purpose of amending the counter statements filed by the respective tenants in the Rent Control Petitions. I.A.No.982 of 2017 in R.C.R.No.7 of 2017 is filed under Order VI Rule 17 of CPC by the landlord to amend the schedule of the petition. 3. The application submitted by the tenant, I.A.No.1494 of 2017, was objected by the landlord mainly on the reason that it is not permissible to amend the counter statement/objection submitted by the tenants at the revisional stage and if there is any omission to raise any contention the same would stand as barred by the principles of constructive res judicata by the operation of Explanation IV of Section 11 of CPC. It was also inter alia contended that the said application cannot be entertained as they have already suffered two orders from the Rent Control Court and the Rent Control Appellate Authority. 4. The application in I.A.No.982 of 2017 in R.C.R.No.7 of 2017 was also objected by the tenants mainly on the reason that the said application would not come under the purview of Order VI Rule 17 of CPC. Inter alia, it was contended that at the revisional stage it is not permissible to allow the party to amend the schedule of the petition which is the very basis of the proceedings before the Rent Control Court as well as the Rent Control Appellate Authority. It was also contended that the said application is highly belated and is filed without any bona fides. 5. It was also contended that the said application is highly belated and is filed without any bona fides. 5. Regarding the application I.A.No.982 of 2017, the question whether it would come under the purview of Order VI Rule 17 or under Section 152 or 153 of the Code of Civil Procedure and what is the jurisdiction vested with the revisional court in attending those circumstances, requires elaborate consideration. 6. The petition schedule building covered by both the Rent Control Petitions are two sets of rooms, six in numbers covered by two lease deeds, Exts.A1 and A2. Ext.A1 lease deed is in respect of three rooms, having two numbers, 12/1804 and 1805, and Ext.A2 lease deed is with respect to the second set of three rooms which are having two numbers, 12/1802 and 1803. It was submitted that the shop rooms covered by Ext.A1 were taken by the husband Nazar and the rooms covered by Ext.A2 were taken by his wife Jaseela. In all the shop rooms, a hotel business is being run by the respective tenants jointly. The amendment application filed by the landlord, I.A.No.982 of 2017, is for rectifying a mistake crept in the schedule attached to R.C.P.No.5 of 2011. The said Rent Control Petition was filed against the husband and the other Rent Control Petition, R.C.P.No.6 of 2011, was filed against the wife. It was submitted by the learned counsel for the landlord that the very same description of the property in R.C.P.No.6 of 2011 was extracted in R.C.P.No.5 of 2011 mistakenly and hence I.A.No.982 of 2017 was filed for rectifying the abovesaid mistake by way of amendment. 7. What is sought to be corrected is the identity of the shop rooms having two numbers. Out of the six shop rooms, one set is having three shop rooms with two building numbers and the other set is having three shop rooms with two building numbers. One set of rooms were taken by the husband and the other by the wife and they are jointly conducting hotel business by making use of all these two sets of shop rooms, six shop rooms. This would show that the mistake crept in the description of property in the petition schedule is only relating to the number of one set of shop rooms. This would show that the mistake crept in the description of property in the petition schedule is only relating to the number of one set of shop rooms. Though R.C.P.No.5 of 2011 was filed against the tenant Jaseela Nazer no contention was raised disputing the identity of the shop rooms which were taken from the landlord either before the Rent Control Court or before the Rent Control Appellate Authority. But, proceeded with the Rent Control Petition and defended the same under the impression and the belief that it is pertaining to the shop rooms which were taken from the landlord/petitioner. Contentions were raised and defended at the Rent Control Court as well as the Appellate Authority under the impression that the Rent Control Petition as well as the Rent Control Appeal are pertaining to the shop rooms having two building numbers taken from the very same petitioner/landlord. In other words, both the landlord and the tenants, who are the parties to the proceedings, proceeded under the bona fide belief and the impression that the subject matter involved in the petition is the one set of buildings, having three shop rooms, taken by the tenants from the same landlord. This would show that the mistake crept in the description of the schedule is only an inadvertent mistake. 8. The next question to be considered is whether the revisional court can rectify an inadvertent mistake crept in the order of both the trial court as well as the Appellate Authority by exercising revisional jurisdiction. 9. Section 115 CPC and Section 20 of the Act are extracted below for reference: “115. 8. The next question to be considered is whether the revisional court can rectify an inadvertent mistake crept in the order of both the trial court as well as the Appellate Authority by exercising revisional jurisdiction. 9. Section 115 CPC and Section 20 of the Act are extracted below for reference: “115. Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.-- In this section, the expression “any case which has been decided includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.” “20. Revision.-- (1) In cases where the appellate authority empowered under section 18 is a Subordinate judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. (2) The costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion.” 10. A five Judges’ Bench of the Apex Court in Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others ( AIR 1966 SC 153 ) had discussed the extent of revisional jurisdiction under Section 115 CPC and held thus: “The High Court cannot while exercising its jurisdiction under S.115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate Court has exercised jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. Points of law may arise which are related to questions of jurisdiction. A plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these pleas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of S.115 of the Code. But an erroneous decision on a question of law having no relation to question of jurisdiction will not be corrected by the High Court under S.115.” 11. In Hari Shankar v. Rao Giridhari Lal Chowdhury ( AIR 1963 SC 698 ), the Apex Court had occasion to consider the jurisdictional distinction between an appeal and a revision, wherein it was held thus: “The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute limits the rehearing as in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under Section 115 of the Code of Civil Procedure, the High Court’s powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record, of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit. The phrase “according to law” refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter.” 12. The revisional power vested under Section 20 of the Act is more exhaustive than under Section 115 CPC. The latter one suffers a restriction by the application of the proviso to Section 115(1) CPC restricting the authority not to vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings, and a further restriction under sub-section (2) that it cannot vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate to it. But the former one did not suffer any such restriction as in the case of Section 115 CPC. 13. At this juncture, it has to be borne in mind that the exercise of revisional jurisdiction would be either under any provision in the Special Statute akin to Section 20 of the Act or under the general law under Section 115 CPC. In both the cases, the exercise of revisional jurisdiction should be confined only to those matters which were permitted either under any of the provisions contained in the Special Law or under Section 115 of the CPC, as the case may be. In both the cases, the exercise of revisional jurisdiction should be confined only to those matters which were permitted either under any of the provisions contained in the Special Law or under Section 115 of the CPC, as the case may be. But while dealing with a proceeding pending before a Court, including a revision, it does not cease to have jurisdiction as of a “Court” and not bound by the restriction imposed under any provision for revision under any Special Law or under Section 115 of CPC in the matter of setting aside the exparte order or to bring back a proceeding which was dismissed for default into the file, in allowing restoration of a proceeding including a revision petition. It really possesses two distinct and separate jurisdiction while dealing with a revision. If it is with respect to the subject matter of the revision, no doubt, the revisional court is confined only to the authority given under the relevant provision either in the special enactment or under the general law - Section 115 of CPC. But in the matter of restoration of a proceeding which was dismissed for default or condoning a delay in preferring a proceeding or setting aside an exparte decree or order, it has nothing to do with the revisional jurisdiction or the subject matter of revision and the Court is bound to exercise its jurisdiction as of a “Court”. No doubt, in attending a matter of rectification of a mistake crept in the impugned order or judgment or any order or judgment passed by the revisional court does not suffer any restriction on account of the fact that the same had been arisen in a proceeding of a revisional court. So, the exercise of jurisdiction by the Court either under any of the provisions akin to Section 20 of the Act or under the general provision under Section 115 of CPC would be distinguished from the jurisdiction it possesses with the proceedings initiated before it and to deal with it, till it reaches the stage of exercise of revisional power over the subject matter. So, it is permissible for the revisional court to rectify the mistake crept in the judgment or order without resorting to Section 115 of CPC or Section 20 of the Act. 14. So, it is permissible for the revisional court to rectify the mistake crept in the judgment or order without resorting to Section 115 of CPC or Section 20 of the Act. 14. The application of Section 23 of the Act is restricted only to the Accommodation Controller, Rent Control Court or the Rent Control Appellate Authority, though the power to rectify a mistake by way of amendment also incorporated under clause (j) to Section 23(1) of the Act. For the purpose of Section 23, the Accommodation Controller, Rent Control Court or the Appellate Authority shall have the powers which are vested in a civil court under the Code of Civil Procedure to the matters made mentioned in clauses (a) to (k) of sub-section (1) of Section 23 of the Act. The High Court or a revisional court is not brought under the purview of Section 23 of the Act. If that be so, the revisional court cannot rectify such a mistake or omission with the aid of Section 23 of the Act. 15. It is also now settled that the power to rectify a mistake, accidental slip or omission crept in the judgment, decree or order can be done by the Court by which the judgment, decree or order is passed. Since the order passed by the Rent Control Court was already merged in the judgment of the Appellate Authority, the said jurisdiction has to be exercised by the Rent Control Appellate Authority under Section 152 of the CPC. 16. I.A.No.1494 of 2017 is filed by the tenant for the purpose of incorporating an additional pleading in the counter statement filed in the Rent Control Petition. It is contended by the tenant that the landlord is suffering from some ailment in connection with an operation undergone by him and periodical check up is necessary in a hospital situated in Kozhikode and, as such, his presence in Kozhikode is highly necessary. Hence, it is not possible for him to start a business at Thalassery, wherein the petition schedule buildings are situated, and that the landlord has obtained an order of eviction both from the Rent Control Court as well as the Appellate Authority by playing fraud. Nothing was brought to our notice sufficient to accept the amendment application at this revisional stage. Nothing was brought to our notice sufficient to accept the amendment application at this revisional stage. Further, the nature of pleading would itself show that the said pleading would not make much impact on the orders already passed by both the Rent Control Court as well as the Rent Control Appellate Authority. 17. Coming into the grounds urged in the petition, admittedly, there are concurrent findings by both the Rent Control Court as well as the Rent Control Appellate Authority under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Act. In so far as Section 11(3) is concerned, admittedly, the proposed need or the purpose for which the building is required by the landlord is not disclosed in the petition. Both the Rent Control Court as well as the Rent Control Appellate Authority rejected the said objection on a wrong impression that meticulous pleadings are not necessary as far as the Rent Control Petition is concerned. We are not in quarrel with the proposition that no meticulous pleading is necessary as far as the need advanced under Section 11(3) of the Act is concerned. But, they should specify the need so as to convey what actually intended by the landlord to the tenants so that they can establish their defence in accordance with the need advanced. That right cannot be curtailed by the act of the landlord. In other words, what is actually intended by the landlord and for what purpose the building is required should be specified in clear terms so as to convey the same to the tenant so as to have a proper defence in the matter. It does not mean that there should be a detailed version or a meticulous pleading touching each and every part of the proposed need. In this case, the need itself is not disclosed anywhere in the petition and it is really fatal to the application submitted by the landlord under Section 11(3) of the Act and the views taken by both the Rent Control Court as well as the Rent Control Appellate Authority are erroneous and perverse and are liable to be interfered with by this Court by exercising its revisional power. 18. 18. Further, it has come out in evidence, by way of admission by the landlord during the course of his examination as a witness, that two rooms in the second floor and the third floor were subsequently leased out to various tenants. It has also come out in evidence that during the pendency of the Rent Control Petition, the landlord came into possession of the other portions of the second and third floors, which were also subsequently rented out. If that be so, the matter would come under the first proviso to Section 11(3) of the Act, which would form an integral part of Section 11(3) in testing the bona fides of the need advanced. The reasons supplied under the guise of special reasons seemed to be so flimsy. No acceptable or reliable reason was advanced by the landlord for not occupying the other portion of the second and third floors for the proposed need. 19. On coming into Sections 11(4)(ii), it seems to be so strange that the Appellate Authority has confirmed the order of eviction passed under Section 11(4)(ii) by the Rent Control Court, based on mere possibility of the alleged act of the tenant. What is alleged by the landlord is that the dividing wall in between the two shop rooms had been removed by the tenants and thereby caused substantial reduction in its value and utility. But the Commissioner who inspected the property have not ascertained the abovesaid aspect as it was not possible for him to ascertain the same and it is reported that there is no visible signs to show the removal of any such wall or existence of any such wall, as alleged by the landlord. It was also, to a certain extent, conceded by the landlord during the course of examination that he did not have any evidence to show the alleged removal of the wall. But, both the Rent Control Court as well as the Rent Control Appellate Authority proceeded in the matter under the premise that there is a possibility to have such a removal of wall by the tenants. We are in total darkness under what basis such a finding was rendered by the Rent Control Court as well as the Rent Control Appellate Authority. 20. We are in total darkness under what basis such a finding was rendered by the Rent Control Court as well as the Rent Control Appellate Authority. 20. During the course of arguments, the learned senior counsel appearing for the landlord submitted that the ground under Section 11(4)(ii) is not simply resting on the question of removal of wall. The Commissioner, who inspected the property, reported about removal of flooring tiles at the place wherein the shutters are fitted and also raising of ground level of the rooms. It is also reported that there are damages to the courtyard. The removal of some flooring tiles in the place wherein shutters are fitted would not come under the purview of Section 11(4)(ii) as it will not materially affect either the utility or value of the building. Raising of ground level is something which would definitely stand outside the purview of Section 11(4)(ii) of the Act. Regarding damages caused to the courtyard, of course, the expression ‘building’ would intake the building and structures as well as the land appurtenant thereto. Damages, if any, caused to the land, either by digging or excavating soil or doing some other permanent work, would bring the matter within the purview of Section 11(4)(ii) of the Act if it reduces the utility or value of the premises. But, in the present case, the damages alleged to have been caused to the courtyard is a common one available to a three storeyed building and what is occupied by the tenants is only six shop rooms in the ground floor. If any damage is caused to the common courtyard, the landlord should show that it was happened or caused by the act of the tenants, for which no satisfactory evidence was adduced. 21. On coming into Section 11(2)(b) of the Act, both the Rent Control Court as well as the Appellate Authority concurrently found that the rent which was due for the period from 1.4.2006 to 1.8.2010 comes to Rs.19,11,238/- and only an amount of Rs.14,94,040/- was paid. The main contention raised by the tenants is that there is a deposit of Rs.8,60,000/- with the landlord,i.e., Rs.4,30,000/- for each set of buildings and the landlord can set off the arrears of rent from the advance amount received. It is true that as per the provisions contained in the Act, the landlord can claim only one month’s rent in advance. It is true that as per the provisions contained in the Act, the landlord can claim only one month’s rent in advance. But when more amount was received by way of advance, both the parties are governed by the covenants agreed upon and the non-obstante clause in Section 11(1) would not operate to the extent of the said covenant regarding adjustment or repayment or return of the advance amount received by the landlord. Nothing was brought to our notice with respect to existence of any covenant for adjusting the rent payable towards advance amount and hence, it has to be presumed that they agreed to return the said amount only on the termination of the lease. If that be so, it cannot be adjusted towards the rent arrears. So, we are of the view that there is no sufficient ground to interfere with the order passed under Sec.11(2)(b) of the Act. In the result, the applications, I.A.No.982 of 2017 in R.C.R.No.7 of 2017 is hereby allowed and the mistake crept in the schedule description would stand as rectified as prayed for in the application. I.A.No.1494 of 2017 in R.C.R.No.8 of 2017 is hereby dismissed. Both the Revisions are allowed in part. The order of the Rent Control Court as well as the judgment of the Rent Control Appellate Authority, ordering eviction of the tenants under Sections 11(3) and 11(4)(ii) of the Act, are hereby set aside. The order passed under Section 11(2)(b) for eviction of the tenants is hereby confirmed, subject to the application of Section 11(2)(c) of the Act. No order as to costs.