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2022 DIGILAW 999 (KER)

Vannatham Veettil Moidu, S/o. Yusaf v. Vannatham Veettil Yoonus, S/o. Kadeesa

2022-11-21

C.S.SUDHA, P.B.SURESH KUMAR

body2022
ORDER : C.S. Sudha, J. This R.C.R under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) has been filed by the respondent (the petitioner in the R.C.P) in R.C.A.No.26/2011 on the file of the Rent Control Appellate Authority (RCAA), Vadakara. The appeal was filed by the respondent-tenant in the R.C.P. against the order dated 18/12/2010 in R.C.P.No.28/2009 on the file of the Rent Control Court (RCC), Nadapuram. The parties and the documents will be referred to as described in the R.C.P. 2. The petitioner/landlord moved the RCC, Nadapuram seeking an order of eviction under Section 11(3) and 11(4)(iii) of the Act. The petitioner claiming to be the owner of the petition schedule room on the basis of the decree in O.S.No.77/2004 on the file of the Sub Court, Vadakara, alleged that he bona fide requires the room for starting a retail stationary business in the tenanted premises. It was alleged that he has no other buildings or rooms in his possession, suitable for the proposed need. It was also alleged that the respondent is an immensely rich person, who has several other sources of income and therefore, he cannot get the benefit of the second proviso to Section 11(3). The petitioner also alleged that the respondent is in possession of other suitable room and therefore he can very well shift the business being conducted in the tenanted premises to the said room. Therefore, eviction was sought under Section 11(3) and 11(4) (iii) of the Act. 3. The respondent denied the title of the petitioner and contended that as per an oral gift deed executed by his mother, he is the owner of the tenanted premises. It was also contended that the R.C.P. is not maintainable as the case of the petitioner is that he had obtained possession of the petition schedule room in execution proceedings initiated pursuant to the final decree passed in O.S.No.77/2004 and therefore, he cannot now claim eviction of the tenanted premises from the respondent. The respondent also denied the bona fide need and contended that the petitioner is running a successful business in vegetables in a very important commercial locality in the city. The petitioner has also other buildings and rooms suitable for the proposed need. He claimed the benefit of the first and second provisos to Section 11(3). The respondent also denied the bona fide need and contended that the petitioner is running a successful business in vegetables in a very important commercial locality in the city. The petitioner has also other buildings and rooms suitable for the proposed need. He claimed the benefit of the first and second provisos to Section 11(3). He also denied the allegation of the petitioner that he is in possession of other rooms which are suitable for running his business being conducted in the tenanted premises. 4. The question whether the denial of title of the petitioner by the respondent was bona fide or not was decided by the RCC by order dated 29/07/2010. It was held that the denial was not bona fide. Thereafter, trial was conducted, evidence was adduced by both sides and after hearing both sides, the RCC allowed the R.C.P. under Section 11(3) and 11(4)(iii) of the Act. The respondent-tenant took up the matter in appeal. The RCAA reversed the finding of the RCC on the question of denial of title by the tenant as well as the findings on the grounds for eviction under Section 11(3) and 11(4)(iii) of the Act. Aggrieved, the petitioner-landlord has come up in revision. 5. The respondent had filed Cross Objection no.52/2013. However, when the matter was taken up for hearing, no instructions was submitted by the learned counsel for the respondent and hence the cross objection has been dismissed. 6. The question to be considered is, whether there is any illegality, irregularity or impropriety in the findings of the RCAA. 7. Heard Sri. T. Krishnanunni, the learned senior counsel for the petitioner. 8. The order of the RCC dated 18/12/2010 shows that the question whether denial of the petitioner's title over the tenanted premises by the respondent is bona fide or not, had been decided vide order dated 29/07/2010 and the point has been answered against the respondent-tenant. This order is an appealable order under Section 18 of the Act (Kallianikutty v. Velayudhan, 1975 KHC 72). Admittedly, no appeal has been filed against the said order. Therefore, the question is, could the RCAA have adjudicated the same also while considering the appeal filed against the final order of the RCC ordering eviction? 8.1. Here we refer to a Division Bench decision of this Court in Chandrasekhara Prabhu A. v. Vadakke parammal Kunhimoideen, 2008 (3) KHC 621 . Therefore, the question is, could the RCAA have adjudicated the same also while considering the appeal filed against the final order of the RCC ordering eviction? 8.1. Here we refer to a Division Bench decision of this Court in Chandrasekhara Prabhu A. v. Vadakke parammal Kunhimoideen, 2008 (3) KHC 621 . In the said case, R.C.P was filed by the landlord seeking eviction of the respondent, alleged to be the tenant of the building under various sub-sections of section 11 of the Act. The petition schedule building and the property in which it was situated had been obtained by the landlord therein on the basis of a decree in a suit. The tenant was in occupation of the building and hence in the execution proceedings initiated to execute the decree, only symbolic delivery had been effected. It was thereafter the R.C.P. had been filed. The tenant inter alia disputed the title of the landlord. Since the title of the landlord over the petition schedule building was denied by the tenant, that issue was considered as a preliminary point by the RCC and it was found that the denial was not bona fide. There was an appeal from the said order. The Appellate Authority confirmed the finding, which became final as there were no further proceedings against the said judgment. The RCC, thereafter, considered the matter on merits and after a full-fledged trial, eviction was ordered. The appellate authority confirmed the said order. In revision, the tenant inter alia challenged the finding of the RCC on the preliminary point regarding denial of title. This court rejected the said contention and held that the tenant is not entitled to re-agitate the same question at a subsequent stage of the proceedings. Relying on the decision of the Apex Court in Rajendran v. Mohammed Kunhi, 2002 KHC 811 : AIR 2003 SC 649 , it has been held that the principles of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceedings. The same view has been taken by another Division Bench in Assainkutty Haji V. v. K.P. Rajalakshmiammal, 2012 (4) KHC 612 relied on by the learned counsel for the petitioner, wherein also it has been held that once the finding on the said question has attained finality, it cannot be re-agitated. 8.2. The position is slightly different in the case on hand. Here the respondent-tenant had not preferred an appeal against the finding on his plea of denial of title. Had he preferred an appeal against the said order and had the appellate authority adjudicated the same, the position would have been different. He could then have not re-agitated the same, as the principle of res judicata would have applied as held in the aforesaid cases. We also refer to the decision in Anand Mohan Boral v. Bilas Bihari Lal, AIR 1979 Pat 36 , in which case, it was contended that a preliminary point, having been decided by the trial court by its earlier order, it could not be raised by the opposite party at the succeeding stage of the same proceeding. It was further contended that the said order could not be challenged more so as the civil revision applications filed by the opposite party before the High Court had been dismissed/withdrawn. In other words, it was contended that the order would operate as res judicata against the opposite party, and therefore, the court of appeal could not have interfered with the same. The argument of res judicata advanced, has been held to be entirely erroneous. The principle of res judicata would apply between two stages in the same litigation to the extent that the same Court, whether the trial court or a higher court, having at an earlier stage decided a matter in any way would not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding. The order deciding the question of maintainability as a preliminary point, was not re-agitated in the same proceeding i.e., in the proceeding pending in the trial Court. Had it been done so, it was held, the argument would have application, but certainly the opposite party has got every right to agitate the correctness of any decision of a subordinate court in an appeal. Had it been done so, it was held, the argument would have application, but certainly the opposite party has got every right to agitate the correctness of any decision of a subordinate court in an appeal. Although an appeal may be said to be in continuation of the suit, certainly it is a proceeding different from the suit. 8.3. Further, we also refer to the decision in Sankara Menon v. Gourikutty Amma, 1978 KHC 381. In the said case an argument was advanced that, as an order under O.43 R.1(k) C.P.C. is appealable, it can be challenged only in an appeal therefrom and that it cannot be challenged under S.105 C.P.C. in an appeal from the decree. Rejecting this contention, it has been held, sub-s. (1) of S.105 starts by enacting that save as otherwise provided, orders are not appealable and proceeds to say in the second limb of the sub-section that "where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal." The expression "any order" is general and there is nothing that restricts it to appealable or non-appealable orders. That it comprehends both types of orders is further apparent from sub-s. (2) which contains a special provision excluding appealable orders of remand from challenge, in appeals from decrees. The position is also well settled by judicial decisions of which reference was made to the decision in Satyadhyan v. Smt. Deorajin Debi, AIR 1960 SC 941 . The Supreme Court traced the evolution of S.105 and noticed how the expression "such order" which occurred in S.591 of the Code of 1877 and which was retained in the subsequent Code of 1882, was substituted by the words "any order" in S.105 of the present Code. After pointing out that the expression 'such order' in S.591 gave rise to a contention in some cases before the Privy Council that the Section applied to non-appealable orders only, that the contention was overruled by the Privy Council and that this view was adopted by the legislature by changing the words 'any such order' to "any order". After pointing out that the expression 'such order' in S.591 gave rise to a contention in some cases before the Privy Council that the Section applied to non-appealable orders only, that the contention was overruled by the Privy Council and that this view was adopted by the legislature by changing the words 'any such order' to "any order". The Apex Court held that it is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. 8.4. That being the position, the RCAA was justified in considering the correctness of the order passed by the RCC relating to the plea of denial of title raised by the respondent-tenant. Now the question is, was the RCAA right or justified in reversing the said order of the RCC? 9. Though the respondent in his counter claimed title on the basis of an oral deed, the said claim was submitted to have been given up by the counsel appearing for the respondent. Holding that oral admissions made by a lawyer on behalf of his client could not be acted upon, the RCC considered the plea on merits on the basis of the materials on record and found by a reasoned order that the claim is not bona fide. The denial of title of the landlords or claim of permanent tenancy by the tenants does not ipso facto efface the jurisdiction of the Rent Control Court to decide the petition for eviction under sub-s. (1) of S.11. The essential requisite to attract the said proviso is that such benefit or claim by the tenant shall be bona fide.(Gouthami v. Indira Kunjamma, 1994 KHC 246). As far as the scope of enquiry is concerned, the RCC is expected to do that only in a summary manner. The court must be in a position to say that the chances of the plea being upheld by the civil court is fairly on the higher side. Then alone, the RCC is justified in holding that the denial is bona fide. The court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea (Aboobacker v. Girija, 1995 KHC 100). Then alone, the RCC is justified in holding that the denial is bona fide. The court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea (Aboobacker v. Girija, 1995 KHC 100). The test laid down in Gouthami (Supra) and Aboobacker (Supra) is obviously not satisfied in the case on hand and so the RCC was justified in holding that the denial is not bona fide. The RCAA apparently went wrong in interfering with the said order of the RCC and hence an interference into the same on that account is necessitated. 10. Now coming to the need under Section 11(3). The petitioner in the R.C.P. alleged that he requires the tenanted premises bona fide for starting a stationary business. The respondent took up a contention that the petitioner is quite a rich businessman and hence, it was not necessary for him to start any new business. That is not for the tenant to say. He cannot dictate terms to the landlord or say what he is to do or not to do. The need alleged also need not be a dire need of the petitioner. Evidence was also brought in to show that the petitioner's wife is conducting a successful business in vegetables in the heart of the city. Even if that be so, the same is not a ground to reject or disbelieve the case of the petitioner regarding his bona fide need. Nothing prevents the petitioner-landlord from starting more than one business at a time. Therefore, the RCAA went wrong in reversing the finding of bona fides entered into by the RCC, which order is a reasoned order. 11. The petitioner in the R.C.P. had pleaded that the vacant rooms in his possession are not suitable for his proposed business. He has given specific reasons for the same also. This fact has not been discredited by the respondent and therefore, the respondent cannot claim the benefit of the first proviso to Section 11(3) of the Act. 12. The respondent also claimed the benefit of the second proviso to Section 11(3). However, no evidence was adduced to substantiate the same. He has given specific reasons for the same also. This fact has not been discredited by the respondent and therefore, the respondent cannot claim the benefit of the first proviso to Section 11(3) of the Act. 12. The respondent also claimed the benefit of the second proviso to Section 11(3). However, no evidence was adduced to substantiate the same. Therefore, the RCC was right in arriving at a conclusion that he is not entitled to the benefit of the second proviso to Section 11(3), which has been wrongly interfered with by the RCAA. 13. Now coming to the ground under Section 11(4)(iii). The petitioner alleged that the respondent is in possession of other suitable rooms in his possession. The fact that the respondent has other rooms in his possession is admitted. But the respondent took up a case that he is conducting other business in the said premises. This aspect was gone into by the RCC and after analyzing the entire evidence, oral as well as documentary, reached a conclusion that the petitioner had succeeded in establishing the ground under Section 11(4)(iii). The RCAA without giving any reasons as to why the said finding is wrong, by merely referring to the oral evidence of the respondent-tenant, concluded that the case put forward by the tenant that he is conducting business in the alternate room also, appears probable. 14. The RCC had considered all the aspects of the case in detail and held that the petitioner is entitled to an order of eviction under Section 11(3) and 11(4)(iii). The findings of the RCC did not suffer from any infirmity justifying the RCAA to make an interference into the same. As the appellate authority has substantially erred in exercising its jurisdiction, we need to exercise our revisional jurisdiction under S.20 of the Act to rectify the illegality, irregularity and impropriety committed. In the result the R.C.R. is allowed. The judgment in R.C.A. No. 26/2011 is reversed and the order of eviction passed under Section 11(3) and 11(4)(iii) by the RCC is restored. The respondent shall vacate the building within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed.