IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 28078 of 2009(D) -------------------------------- RCA.4/2009 of I ADDL. DISTRICT COURT, PALAKKAD RCP.Nos.7 & 8 2007 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ----------------- SHOWKATHALI, S/O.ABDUL KAREEM, RESIDING AT 7/503, KOZHINJAMPARA P.O., VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): ------------------- MUNIAMMAL, WIDOW OF PAZHANISWAMY CHETTIAR, RESIDING AT KOZHINJAMPARA P.O., VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ W. P. C. No.28078 of 2009 ------------------------------------------------ Dated this the 7th day of October, 2009 JUDGMENT Pius C. Kuriakose, J The tenant who is the respondent in RCP No.7/07 on the files of the Rent Control Court, Chittur challenges in this Writ Petition under Article 227 of the Constitution, Ext.P1 order of that Rent Control Court allowing an application filed by the respondent/ landlord for joint trial of that RCP along with RCP.8/07 pending before the same court. Also under challenge is Ext.P2 judgment of the Rent Control Appellate Authority confirming Ext.P1 order. RCP No.8/07 is instituted by the respondent himself in respect of the adjacent portion of a larger building of which the building which is subject matter of RCP.7/08 is also a portion. Common grounds are raised in both the Rent W. P. C. No.28078 of 2009 -2- Control Petitions. One ground is the ground of arrears of rent and the only substantive ground raised by the landlord in both the Rent Control Petitions is that the entire building is required bona fide for the conduct of a flower shop for herself in a portion and of a textile shop by her children in the remainder portion. In fact, the larger building had three portions and the tenant in the other portion vacated acceding to the landlords request. The landlord sought for a joint trial of the two cases on the reason that the grounds of eviction are the same, the buildings are portions of the very same larger building, the nature of evidence adduced in both the cases are the same and that in order to avoid multiplication of evidence and for saving valuable court's time, joint trial is necessary. The tenants resisted the prayer contending that the rooms are separate/independent and that if joint trial is allowed, W. P. C. No.28078 of 2009 -3- they will not be able to adduce independent evidence and that thereby prejudice will be caused to them. The Rent Control Court allowed the application and the Appellate Authority by Ext.P2 judgment confirmed the order of the Rent Control Court. 2. Sri.V.Chitambaresh, the learned Senior Counsel for the petitioner/tenant placed strong reliance on the judgment of this Court in Ebrahim Ismail Kunju v. Phasila Beevi (1991(1) KLT 861). Reliance was also placed by the learned senior counsel on the judgment of another Division Bench in Sasidharan v. Saroja (2004(2) KLT 885. The learned counsel, however, referred also to judgment of another Division Bench of this Court in Mohammed Salim v. Habeeb (2002(2) KLT 93) to argue that joint trial will be justified only when the common ground is reconstruction of the building under clause 4 of sub W. P. C. No.28078 of 2009 -4- Section 4 of section 11. The learned senior counsel submitted that the defence raised by the petitioner herein and by the respondent in RCP 8/07 will be different and when there is differentiality in the defensive pleas a joint trial will result in serious prejudice to the tenants in both the cases. 3. The persuasive submissions of the learned counsel notwithstanding, we do not find any infirmity about Ext.P2 judgment of the Rent Control Appellate Authority confirming Ext.P1 order warranting invocation of the visitorial jurisdiction of this Court under Article 227 of the Constitution of India. According to us, Ebrahim Ismail Kunju's case (cited supra), does not lay down in absolute terms that order of joint trial of two or more rent control petitions cannot be allowed in cases where the common ground of eviction in the RCPs is sub Section 3 of Section 11 W. P. C. No.28078 of 2009 -5- and there is some differentiality in the pleas taken by the tenants who are respondents in the different rent control cases. 4. As far as this case is concerned, the common grounds raised by the landlords in both the rent control petitions are arrears of rent and bona fide own occupation. The defence we are told regarding arrears of rent is discharge. In the nature of that defence, the onus of proof is on the tenant and once it is ensured that the tenant is given opportunity to adduce whatever evidence they have for proving discharge the tenants cannot have any legitimate grievance by ordering trial of the two RCPs jointly. As for the substantive ground of bona fide own occupation the common defence is that the need is not bona fide. The differentiality in defensive plea crops up only when it comes to the question of deciding the eligibility for W. P. C. No.28078 of 2009 -6- protection of the second proviso to sub section 3 of section 11. But as noticed by the Appellate Authority on the aspect whether a particular tenant is entitled for the protection of the second proviso to sub section 3, the law is trite that the burden to show that a given tenant satisfies both the ingredients of the second proviso is on that tenant himself. In other words, any possible prejudice to a tenant by ordering joint trial can be avoided by ensuring that he is permitted to adduce whatever evidence he wants to for substantiating the defence taken by him. Under the above circumstances, we approve Exts.P1 and P2 and dismiss the Writ Petition. We direct the Rent Control Court to ensure that the Writ Petitioner is permitted to adduce whatever evidence he wants to for substantiating the various defences taken by him to the grounds urged by the landlord. No legal evidence W. P. C. No.28078 of 2009 -7- sought to be adduced shall be shut out by the Rent Control Court. While taking decision, the Rent Control Court shall comprehend the specific defences raised by the Writ Petitioner and will apply its mind as to what extent the defences have been proved on the evidence available on record. In other words, the Rent Control Court will ensure that no legal prejudice is caused to the Writ Petitioner by the joint trial pursuant Exts.P1 and P2. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-