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2017 DIGILAW 506 (KER)

John v. Varghese

2017-03-10

P.SOMARAJAN

body2017
JUDGMENT : An application for amendment of the written statement incorporating a claim of kudikidappu over the subject matter and to refer the matter for adjudication under Section 125 of Kerala Land Reforms Act was allowed by the lower court by Exhibit P7 order dated 24.11.2014. Aggrieved by the said order in I.A.No.2696 of 2013 in O.S.No.234 of 2011 (Exhibit P7) of the Munsiff's Court, Cherthala, the plaintiff/respondent in I.A. came up with this petition. 2. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent. 3. The facts involved in the case are as follows: A suit in O.S.No.234 of 2011 on the file of the Munsiff's Court, Cherthala, was filed by the plaintiff/respondent in I.A. for the grant of a permanent prohibitory injunction restraining the defendant/petitioner in I.A./tenant from committing any waste in the suit property. A written statement was submitted. Subsequently, Exhibit P7 application in I.A.No.2696 of 2013 was filed for amending the written statement raising a claim of kudikidappu right over the subject matter and also for incorporating a prayer for referring the matter for adjudication under Section 125 of Kerala Land Reforms Act. Earlier, the plaintiff has filed an application for eviction in R.C.O.P.No.16 of 2010 before the Rent Control Court, Cherthala, and an order of eviction was granted under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease And Rent Control) Act by the order dated 08.08.2011. It was taken up before the Rent Control Appellate Authority, Aleppey. In the said appeal, the order of eviction under Section 11(2)(b) was confirmed. However, the order of eviction granted under Section 11(3) was set aside and the same was remanded back to the Rent Control Court for disposal. After the remand, the tenant filed an application claiming kudikidappu right over the property. It was ended in dismissal by Exhibit P3 order. The request for referring the matter under Section 125(3) of Kerala Land Reforms Act was also rejected by the Rent Control Court under Exhibit P4 order. Against these two orders, the tenant preferred an appeal in R.C.A.No.18 of 2014 before the Rent Control Appellate Authority and it is pending. In the meanwhile, the suit in O.S.No.234 of 2011 was filed by the landlord for a permanent prohibitory injunction restraining the defendant from causing any destruction, damage or waste in the tenanted premises. Against these two orders, the tenant preferred an appeal in R.C.A.No.18 of 2014 before the Rent Control Appellate Authority and it is pending. In the meanwhile, the suit in O.S.No.234 of 2011 was filed by the landlord for a permanent prohibitory injunction restraining the defendant from causing any destruction, damage or waste in the tenanted premises. In the suit, an amendment application was filed for amending the written statement raising a claim of kudikidappu and to refer the matter for adjudication under Section 125(3) of the Kerala Land Reforms Act. 4. The question came up for consideration is whether it is permissible to raise a contention under Section 125(3) of Kerala Land Reforms Act by a party (tenant) after suffering an order of eviction under Section 11 of Kerala Buildings (Lease And Rent Control) Act, 1965, and what would be the effect of the second proviso to Section 11(1) of the said Act? 5. It is by virtue of the non obstante clause incorporated under Section 11 of Kerala Buildings (Lease and Rent Control) Act certain matters regarding eviction of tenants were brought under the purview of the said Act. Second proviso to Section 11(1) is an enabling provision wherein the tenant can deny the title of the landlord or can claim right of permanent tenancy and the Rent Control Court shall decide whether such denial or the claim is bonafide and if it records a finding to that effect the landlord shall be entitled to sue for eviction of the tenant in a civil court. Sub-sections (2) to (17) are proceeding sections enumerating the grounds under which eviction can be ordered. In other words, sub-sections (2) to (17) of Section 11 are subject to sub-section (1) of Section 11 of the said Act. Second proviso to Section 11(1) says that when a claim of denial of title of the landlord or claim of right of permanent tenancy raised by the tenant is found to be bonafide, the Rent Control Court ceased to have jurisdiction over the matter and it can refer the parties to sue for eviction before a competent Civil Court. In other words, the Rent Control Court would have jurisdiction to proceed further in the matter only when there is a finding by that court that the denial of title or the claim of permanent tenancy is not bonafide. In other words, the Rent Control Court would have jurisdiction to proceed further in the matter only when there is a finding by that court that the denial of title or the claim of permanent tenancy is not bonafide. Second proviso to Section 11(1) would come into play only when the tenant raises such a ground either denying the title of the landlord or raising a claim of right of permanent tenancy. In short, the Rent Control Court can proceed further in the matter under Section 11 of the said Act only when (1) there is no claim or denial raised by the tenant under second proviso to Section 11(1) or (2) such denial or claim found to be not bonafide by the Rent Control Court. Admittedly, an order of eviction under Section 11(2)(b) was passed by the Rent Control Court and it was upheld by the first appellate court and became final and conclusive, thereby the tenant has already suffered an order of eviction under one of the grounds under Section 11 of the Kerala Buildings (Lease and Rent Control) Act. If that be so, the rights, if any, under the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act of the tenant would stand as merged in the order passed under Section 11 of the Kerala Buildings (Lease and Rent Control) Act granting eviction on any of the grounds made mentioned therein, namely sub-sections (2) to (17). The order of eviction under Section 11(2)(b) became final and conclusive and the right or claim, if any, with the tenant under the second proviso to Section 11(1) of the said Act would stand as deemed to have been raised and rejected. If it was raised and if it was found not bonafide, after suffering an order of eviction and after attaining finality, it is not permissible to reopen the grounds which were available under the second proviso to Section 11(1) of the said Act either in a subsequent stage of the same proceeding or by way of a counter claim in a separate suit. The counter claim raised in the suit regarding the question of kudikidappu right really amounts to denial of title of the landlord. The counter claim raised in the suit regarding the question of kudikidappu right really amounts to denial of title of the landlord. So the said question cannot be raised either in a subsequent stage of the same proceeding or by way of separate suit or counter claim subsequent to the finality and conclusiveness of the order of eviction passed under Section 11 of the said Act. If it was not raised under the second proviso to Section 11(1) of the Act, it is deemed to have been raised and rejected by virtue of constructive res-judicata and by virtue of application of explanation IV to Section 11 CPC. Admittedly, before passing an order of eviction under Section 11(2)(b), no such claim of denial of title was raised by the tenant. It was raised only after the culmination of an order of eviction under Section 11(2)(b) after attaining finality and conclusiveness. The petitions which were filed after the confirmation of the order of eviction under Section 11(2)(b) were dismissed under Exhibits P3 and P4 orders. Those orders are under challenge in R.C.A.No.18 of 2014 pending consideration before the Rent Control Appellate Authority, Aleppey. 6. The pendency of the said appeal will not alter the legal and factual position as stated above. The lower court has not exercised its jurisdiction in its correct perspective and committed serious error while granting an amendment under the above said order and hence the same is liable to be intercepted by exercising the supervisory jurisdiction of this court and I do so, but without cost. In the result, this petition is allowed. The order of the lower court in Exhibit P7 order (order passed in I.A.No.2696 of 2013, dated 24.11.2014) is hereby set aside and the said application is dismissed. No costs.