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2021 DIGILAW 330 (KER)

Rafeeque v. Shaik Muhammed

2021-03-23

A.HARIPRASAD, T.V.ANILKUMAR

body2021
ORDER : Anilkumar, J. The dismissal of an eviction petition filed under Sections 11(3) and 11(2) (b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 [for short, the 'Act'] by the Rent Control Appellate Authority reversing the order of eviction passed by the Rent Control Court is challenged by the landlord in this revision. 2. The revision petitioner is a Gulf returnee. He let out the petition schedule shop room to the respondent-tenant for monthly rent on 18.08.2009 for a period of 11 months. The tenant is conducting a stationery business in the shop room. The revision petitioner contended in the eviction petition that, he was jobless after his return from Gulf and, therefore, bona fide needed the shop room for carrying on a business in stationery-cum-gift shop. He further alleged that the tenant paid rent only upto the month of December, 2009 and kept the rent for subsequent months in arrears. The eviction petition was filed on 08.06.2010 before the expiry of period of lease agreed between parties. 3. The rent control court ordered eviction accepting both the grounds which was reversed by the Rent Control Appellate Authority in R.C.A.No.54/2011. According to the Rent Control Appellate Authority, the landlord failed to prove default of payment of rent during the relevant period and also held that the need projected by the landlord was not proved to be bona fide. 4. Besides the correctness as to the factual findings entered into under Section 11(3) and 11(2)(b) of the Act by the Appellate Authority, a legal question also arises in this proceedings as to the maintainability of eviction petition in view of the legal bar under Section 11(9) of the Act, which prohibits the landlord from instituting proceedings before the expiry of the period provided in the lease agreement. 5. We heard the learned counsel appearing on either side. We are satisfied from the evidence on record that the respondent paid the rent for the relevant period without committing any default and the revision petitioner failed to prove the ground of eviction under Section 11(2)(b) of the Act. The factual finding entered into by the Appellate Authority in this respect, therefore, does not call for any interference. 6. The factual finding of the Appellate Authority rejecting eviction on the ground of bona fide need for own occupation is seriously assailed by the learned counsel for the revision petitioner. The factual finding entered into by the Appellate Authority in this respect, therefore, does not call for any interference. 6. The factual finding of the Appellate Authority rejecting eviction on the ground of bona fide need for own occupation is seriously assailed by the learned counsel for the revision petitioner. On the other hand, the impugned order is sought to be sustained by the learned counsel appearing for the respondent. 7. The fact that the revision petitioner is a Gulf returnee and jobless is not a fact disputed. It has been proved by the revision petitioner and accepted by both the courts below that the landlord has no suitable shop room in his possession other than the petition schedule room for starting his proposed business. 8. The contention of the respondent is that the need projected by the revision petitioner is not genuine and it is a contrivance devised for eviction. It is specifically contended that intention of the revision petitioner is to evict the respondent by hook or by crook and to sell the shop room for a fanciful price. 9. The revision petitioner was jobless when he leased out the vacant petition schedule shop room to the tenant-respondent on 18.08.2009. He created lease for a period of 11 months which, in the normal course, should continue upto 18.07.2010. A general inference that could be drawn from the above conduct of the landlord is that he did not anticipate the idea or need for occupying the shop room during the currency of lease period. This is one of the circumstances, which would belie the alleged bona fides of the need set up by the landlord. 10. It is an admitted fact that after hardly three months since the commencement of tenancy, the revision petitioner entered into an agreement for sale of petition schedule shop room with the respondent's father and received advance sale price. The respondent's father filed O.S.No.403/2010 for specific performance of agreement for sale before the Sub Court, Palakkad against the revision petitioner. The revision petitioner did not deny execution of the agreement, but contested the suit on other grounds. It was during the pendency of the suit for specific performance that the revision petitioner filed the instant petition for eviction on the two grounds aforesaid. 11. The eviction petition was filed on 08.06.2010 when the period of lease period was yet to complete 11 months. It was during the pendency of the suit for specific performance that the revision petitioner filed the instant petition for eviction on the two grounds aforesaid. 11. The eviction petition was filed on 08.06.2010 when the period of lease period was yet to complete 11 months. The Appellate Authority observed that the revision petitioner in his testimony as PW1 did not have any explanation as to the circumstances in which agreement for sale came to be executed during the currency of tenancy. The revision petitioner kept blissful silence as to the circumstance in which he filed eviction petition in the midst of defending the suit for specific performance brought against him. After having suffered a decree for specific performance, he filed appeal before this Court, which later went up to the Apex Court also. While the Rent Control Court found that the execution of agreement for sale did not affect the bona fides of the need urged by the landlord, the Appellate Authority relied on it as a firm circumstance against the genuineness of the alleged need. The Rent Control Court had taken a view that the landlord might have thought of selling the property under some financial stringency. On the other hand, the Appellate Court found that such a contingency was neither pleaded nor proved by any evidence or circumstances brought out in the case. 12. The overall conduct and attitude of the revision petitioner right from the commencement of lease is sufficient to demonstrate that he did not have a genuine intention or need to start proposed business in the petition schedule shop room. Further it has come out from the revision petitioner's testimony that he had already sold one of the shop rooms owned by him to his sister before the institution of the revision petition. Thus having regard to the entire evidence and circumstances on record, we hold that impugned order of the Appellate Authority dismissing eviction petition rejecting ground under Section 11(3) does not suffer from any illegality, impropriety or irregularity. 13. The learned counsel appearing for the respondent submitted that even if it is assumed for a moment that revision petitioner made out a good ground for eviction under Section 11(3) of the Act also, the petition for eviction is not maintainable as it is hit by Section 11(9) of the Act. 14. 13. The learned counsel appearing for the respondent submitted that even if it is assumed for a moment that revision petitioner made out a good ground for eviction under Section 11(3) of the Act also, the petition for eviction is not maintainable as it is hit by Section 11(9) of the Act. 14. Section 11(9) of the Act prohibits a landlord from applying to Rent Control Court for eviction of tenant from the tenanted premises before the expiry of the lease period. Section 11(9) of the Act is extracted below: Section 11(9)-Where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply to the Rent Control Court before the expiry of such period. 15. The learned counsel appearing for the revision petitioner submitted that the legal bar placed by Section 11(9) of the Act does not operate in the instant case since the respondent has failed to raise objection to maintainability on the ground of Section 11(9) of the Act, either in his pleadings or otherwise before the Rent Control Court at the earlier stage of the proceedings. According to the learned counsel, failure to raise objection based on Section 11(9) of the Act amounted to waiver of the plea and the respondent cannot, therefore, be heard to contend that the eviction petition is not maintainable at the belated stage of the proceedings. In this respect the learned counsel relied on a decision of the Apex Court in Vithalbhai (P)Ltd. v. Union Bank of India [ 2005 (2) KLT 491 (SC)]. 16. The pleadings of the respondent do not disclose that the objection to maintainability based on Section 11(9) of the Act was specifically raised. The maintainability of the petition was questioned in the counter statement without reference to any statutory provision in the Act. Though the Rent Control Court did not deal with the issue as to the legal effect of Section 11(9) of the Act, the appellate authority considered the contention of parties as to the maintainability of the eviction petition based on the embargo created by Section 11(9) of the Act at the time of arguments and answered the contention in favour of the respondent. 17. 17. The object of prohibition underlying Section 11(9) of the Act as understood in the light of the scheme of the Act is to entitle the statutory tenant to enjoy the lease for the full term of lease agreement. The provision is intended to give legal effect to and enforce the contractual duty cast on the landlord to abide by the term of lease agreed to by him as per the deed. In effect, Section 11(9) casts a statutory obligation on the landlord to stick to the agreed term of lease without breach. While non obstante clause in Section 11(1) of the Act saves a statutory tenant from eviction even after expiry of the period of lease and except otherwise than by recourse to the provisions of the Act, Section 11(9) saves him from eviction before the expiration of the period. 18. While considering the legal effect of a premature petition for eviction brought against a statutory tenant, in disregard of a substantially identical provision appearing in 3rd proviso to Section 11(3) of the Act, this Court held in Hameed v. Ittoop [ 1970 KLT 501 ] that Rent Control Court lacked jurisdiction to entertain such a proceeding before the expiry of the statutory period and it was not maintainable under law. 19. The learned counsel for the petitioner relying on Vithulbhai's case supra submitted that a litigation cannot be indiscriminately rejected for the mere reason that it was brought on a premature cause of action and the court has nonetheless jurisdiction and necessary discretion to entertain a premature litigation and grant reliefs to the litigant where the court is satisfied that act of the court would seldom prejudice the rights of the opposite party in the proceedings. It was also submitted relying on the said decision that even to complain of any prejudice, the party proceeded against should have raised objection to maintainability of the proceedings promptly and pressed for immediate decision thereon. It is contended that the failure of the affected party to raise objection earlier in time would amount to waiver and consequently preclude him from raising the objection at a later stage. 20. It is contended that the failure of the affected party to raise objection earlier in time would amount to waiver and consequently preclude him from raising the objection at a later stage. 20. The Hon'ble Apex Court held in Vithulbhai's case(supra) that law does not leave a blanket preposition that a litigation brought on a cause of action which is yet to mature ought to be summarily rejected by the court without having to examine whether the party proceeded against was prejudiced. The court has every jurisdiction to entertain a premature suit and also to grant reliefs in the proceedings in appropriate cases where it appears that the cause of action has later become complete and further no prejudice or manifest injustice would thereby be caused to the opposite party in the proceeding. The prejudice, if any, must however be brought to the notice of the court by the affected party at the earliest point of time by promptly raising objection to maintainability of the proceedings and pressing it for early decision. The failure to raise objection to the maintainability on account of alleged prejudice will only result in waiver of objection and preclude the litigant from raising it at a later stage. 21. We notice that the above position of law came to be laid down by the Apex Court while considering maintainability of a civil suit filed by a landlord for eviction of a contractual tenant before the expiration of period of lease. We are of the view that the aforesaid principle of law cannot extend to the case of statutory tenancy created by rent control law and come to the rescue of a landlord who seeks eviction of a tenant under the Kerala Buildings(Lease and Rent Control) Act in breach of Section 11(9) of the Act. 22. A civil suit for eviction of a contractual tenant before expiration of the lease period and a petition brought for eviction of a statutory tenant in a rent control proceeding before the expiration of the term of lease do not stand on equal footing and are liable to be treated and dealt with differently when objection to maintainability on account of premature cause of action is taken before the court. In Vithulbhai's case(supra), the legal effect and purport of Section 11(9) of the Act was not an issue relevant for consideration nor was it decided. In Vithulbhai's case(supra), the legal effect and purport of Section 11(9) of the Act was not an issue relevant for consideration nor was it decided. However, the Apex Court propounded in the said decision a few exceptional cases wherein a court is not empowered to entertain a premature suit and grant reliefs. It was indicated that when there is a bar or prohibition created by a statute unlike a contract, against entertainment of a premature litigation, the courts are deprived of jurisdiction to entertain such proceedings and grant reliefs to the parties since the embargo placed by the statute goes to the root of the jurisdiction of the court. Relevant portion of the said decision is extracted below: “However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when its goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See : Samar Singh v. Kedar Nath & Ors.(1987 Supp.SCC 663). One more category of suit which may be added to-- where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained.” 23. Thus the legal position that emerges from all that has been discussed by us above is that petition for eviction of a statutory tenant brought prior to the expiration of the term of lease is hit by Section 11(9) of the Act and is not maintainable before a rent control court. Thus the legal position that emerges from all that has been discussed by us above is that petition for eviction of a statutory tenant brought prior to the expiration of the term of lease is hit by Section 11(9) of the Act and is not maintainable before a rent control court. When the statute itself places a bar to eviction before the expiry of the term of lease, the court lacks inherent jurisdiction to entertain the proceedings and grant reliefs to the party despite the completion of the term or cause of action at a later time during the pendency of the lis. It is an incurable defect going to the root of the institution of the proceedings. The rent control court has no judicial discretion to listen to the landlord's plea that tenant was not prejudiced by premature institution of the proceeding. No order of eviction can be issued against a statutory tenant on the ground that objection to maintainability was not taken promptly and pressed for decision. Section 11(9) of the Act itself marks a protest in black and white against entertainment of an eviction petition at a premature stage to which no rent control court can blindfold its eyes. To put it shortly, a petition for eviction brought prior to expiry of term of lease under Section 11(3) of the Act is not maintainable against a statutory tenant in a rent control proceeding. We hasten to add that the law laid down by this Court in Paul v.Saleena [ 2004(1) KLT 924 ] and Ahammed v. Krishnanlal [ 2005(3) KLT 1004 ] that the intention of the legislature is to restrict the bar under Section 11(9) only to a proceeding for eviction under Sections 11(3) and 11(8) will hold good and remain affected. 24. Thus, the revision petition lacks merit and is liable to be dismissed. 25. In the result, revision petition fails and it is dismissed accordingly. It is, however, made clear that this order will not preclude the revision petitioner from applying for eviction of the tenant on any of the valid grounds available under the Act.