IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 RCRev..No. 113 of 2010() ------------------------ RCA.93/2008 of RENT CONTROL APPELLATE AUTHORITY ,ERNAKULAM RCP.89/2005 of RENT CONTROL COUNRT, ERNAKULAM. .................... REVISION PETITIONER/IST RESPONDENT/PETITIONER ----------------------------------------------------------------- MARY JOHNSON,AGED 45 YEARS, W/O.JOHNSON, PANACKAL HOUSE, POWER HOUSE ROAD, ERNAKULAM. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): APPELLANT & RESPONDENTS 2 & 3/RESPONDENTS -------------------------------------------------------- 1. P.SHIVASANKARAN,AGED 40 YEARS, S/O.K.A.R.MENON,PANACKAL BUILDING, 3RD FLOOR, KADAVANTHARA JUNCTION, ERNAKULAM. 2. V.B.GOPALAKRISHNAN,AGED 40 YEARS, PANACKAL BUILDING, 3RD FLOOR, KADAVANTHARA .(DELETED) 3. SIS SECUTIRITIS, PANACKAL BUILDING, 3RD FLOOR, KADAVANTHARA JUCTION, KADAVANTHARA. (R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE REVISION PETITIONER AS PER ORDER DATED 23/9/2010 IN I.A. NO.2284/2010 IN RCR NO.113/2010) ADV. SRI.ZAKIR HUSSAIN SMT.K.A.SAJEETHA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 113 OF 2010 ------------------------ Dated this the 7th day of October, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 by the landlady is the judgment of the Rent Control Appellate Authority allowing the appeal preferred by the tenant and directing the Rent Control Court to dispose of the Rent Control Petition on merits. 2. The landlady filed the Rent Control Petition seeking eviction of the first respondent tenant and two others on the grounds of arrears of rent, bona fide need for own occupation and the ground of sub letting. The need projected under sub section (3) of Section 11 was that the landlady wants to conduct her own tailoring business in the petition schedule building which is in the 4th floor of a four storied building situated on Kaloor – Kadavanthara Road. The allegation of the landlady regarding the ground of sub letting was that the first respondent tenant has sub let the premises to the 2nd and 3rd respondents in the Rent Control Petition. The 2nd respondent was one V.B.Gopalakrishnan and the 3rd respondent was SIS Securities, whose address is RCR.No.113/2010 2 shown as that of the petition schedule building itself. The allegation in the context of ground of arrears of rent was that the rent is in arrears from April 2004 onwards. The tenant filed objections disputing all the three grounds raised. The specific contention regarding the ground of sub lease was that the 3rd respondent in the RCP was only a proprietary concern belonging to the tenant and that the 2nd respondent was not sub lessee at all. When the RCP was listed for trial, the landlady filed an application for deleting the 2nd respondent in the RCP from the array of parties which was allowed. 3. The parties (landlady and the first respondent tenant) filed a joint compromise statement on 1/7/2006. The above compromise statement was accepted by the Rent Control Court and purporting to act on the compromise statement, the Rent Control Court on 18/7/2006 passed an order of eviction on the grounds of arrears of rent, bona fide need for own occupation and sub letting. One of the conditions in the compromise statement was that the first respondent tenant shall vacate the petition schedule building within three months from1/7/2006. Complaining that the building is not vacated within the agreed RCR.No.113/2010 3 period, the landlady filed the Execution Petition before the Execution Court. The Execution Court ordered delivery of the petition schedule building. The order of delivery was challenged by the first respondent/tenant under Section 14 of Act 2 of1965 before the District Court by filing RCRP.2/2007. Apart from filing RCRP No.2/2007, the tenant filed RCA No.93/2008 before the Appellate Authority challenging the order of eviction passed by the Rent Control Court. It appears that RCRP No.2/2007 and RCA No.93/2008 came up before the very same presiding officer. The learned District Judge considering RCRP No.2/2007 would take the view that even accepting the compromise statement in full, the best that could have been done by the Rent Control Court in favour of the landlady was to pass an order of eviction on the ground of arrears of rent. In that view of the matter, the learned District Judge would hold that “the Rent Control Court has no inherent jurisdiction to grant eviction order under Section 11(3) and 11 (4)(i) of the Act.”. In short, the learned District Judge concluded that the order of eviction purportedly passed by the Rent Control Court under Section 11(3) and 11 (4)(1) are passed without jurisdiction and hence not executable. Hence, RCR.No.113/2010 4 the learned District Judge allowed the RCRP and set aside the order of delivery. After deciding the RCRP No.2/2007, the learned Rent Control Appellate Authority would take up RCA No.93/2008 and pass the impugned judgment allowing the RCA in view of the decision taken in RCRP No.2/2007. 4. The order passed by the District Judge in RCRP No.2/2007 was challenged before this Court by the landlady by filing W.P.(C) No.645/2010. When the writ petition came up for admission, it was submitted before this Court on behalf of the tenant that the writ petition is infructuous as the Rent Control Appellate Authority has already set aside the eviction order on on the basis of which the order of delivery was passed by the Execution Court. The above submission could not be disputed by the landlady and this court, therefore, dismissed the writ petition as infructuous. 5. As already stated, it is the judgment of the Appellate Authority, which is under challenge in this revision. Sri.C.P.Peethambaran, learned counsel for the revision petitioner addressed very strenuous arguments before us assailing the judgment of the Appellate Authority. The learned counsel drew RCR.No.113/2010 5 our attention to the compromise statement. Mr.Peethambaran submitted that compromise statement is signed by the landlady as well as the first respondent, the admitted tenant, and is also attested by the respective counsel. It is with open eyes that the first respondent signed the compromise petition agreeing to suffer an order of eviction on the three grounds invoked in the RCP. Having done so, the first respondent is estopped from contending that the Execution Court lacks in jurisdiction to pass eviction order. 6. Smt.K.A.Sanjeetha, learned counsel for the first respondent tenant would resist the submissions of Mr.Peethambaran. According to her, before the Rent Control Court passes an order of eviction under Section 11, that court has to be satisfied that one or more eviction grounds provided under Section 11 exist. Without such a satisfaction, the Court cannot have jurisdiction to order eviction. The learned counsel drew our attention to the compromise petition and submitted that in that petition there is no whisper about the need for own occupation under Section 11 (3) or the ground of sub letting. According to her, the best that could have been done by the court RCR.No.113/2010 6 in favour of the landlady was to pass order of eviction under Section 11(2)(b). The learned counsel submitted that the arrears of rent up to September 2009 has been paid of. 7. We have anxiously considered the rival submissions addressed at the Bar. We called for the entire lower court records and perused them, particularly the compromise statement on the basis of which the Rent Control Court passed the order of eviction. The proceedings paper relating to the Rent Control Petition will show that, apart from filing the compromise petition, the landlady did not adduce any evidence in support of her claim for eviction. Thus, the compromise statement was the only material on the basis of which the Rent Control Court could have passed order of eviction. On going through the compromise statement, we find that the same does not contain even a whisper regarding the eviction ground under Section 11 (3) or 11 (4)(1). It is clear to our mind that the landlady had practically given up the claim for eviction on the ground of sub letting by deleting the 2nd respondent in the RCP and by virtually conceding that the 3rd respondent is only a proprietary concern belonging to the first respondent tenant. We are in RCR.No.113/2010 7 agreement with the learned District Judge in her view expressed in the judgment in the RCRP No.2/2007 that the best that could have been done lawfully by the Rent Control Court on the basis of the above compromise statement was to pass order of eviction under Section 11 (2)(b). At the same time, we are unable to endorse the view of the learned District Judge that the Rent Control lacks in inherent jurisdiction to pass order of eviction under Section 11 (4)(i) and 11 (3). More correctly, it will have to be stated that in the absence of materials establishing existence of eviction ground under section 11(3) and 11(4)(i), the court exercised its jurisdiction in a patently erroneous and irregular manner. At any rate, we are in complete agreement with the learned District Judge in her view that the order of eviction passed by the Rent Control Court on the basis of compromise statement filed by the parties was wholly vitiated and could not have been executed. In that view of the matter, we do not find any reason for setting aside the judgment of the Appellate Authority which is impugned in this case. The RCR will fail and will stand dismissed. 8. Mr.Peethambaran, learned counsel for the landlady RCR.No.113/2010 8 submitted that the first respondent tenant is not paying rent in arrears and the rent that has fallen due subsequently. Smt.Sanjeetha learned counsel for the respondent submitted that the rent due for the period upto to September 2009 has been discharged. Under the above circumstances, even as we confirm the impugned judgment of the Appellate Authority and dismiss the RCR, there will be a direction to the first respondent tenant to pay a sum of Rs.78,000/- to the revision petitioner landlady within a period of four weeks from today and produce receipt before the Rent Control Court. Since the RCP is of the year 2005, the Rent Control Court will expedite the matter and take fresh decision after giving opportunity to both sides to adduce evidence. At any rate, the Rent Control Court will complete the enquiry and pass revised orders within three months from today. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk