IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 WP(C).No. 16864 of 2010(G) -------------------------- RCA.18/2006 of II ADDL.DISTRICT COURT AND RENT CONTROL AUTHORITY, ERNAKULAM .................... PETITIONER : --------------- T.M.ABDUL JALEEL, AGED 59 YEARS, S/O.ALI MAKKAR, M/S.ALI MAKKAR AGENCIES, JEW STREET, ERNAKULAM. BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIAS AHAMMED SRI.K.SANEESH KUMAR SRI.G.UNNIKRISHNAN RESPONDENTS : --------------- 1. V.A.MOHAMMED HANEEFA, AGED 67 YEARS, S/O.LATE V.K.ABDUL KHADER, VALIYAVEETTIL HOUSE, THEVAIKKAL, S.R.M.ROAD, ERNAKULAM. 2. V.M.MOHAMMED ANSAR, AGED 41 YEARS, S/O.V.M.MOHAMMED HANEEFA, VALIYAVEETTIL HOUSE, THEVAIKKAL, S.R.M.ROAD, ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16864 of 2010(G) APPENDIX PETITIONER'S EXHBITS EXT.P1. TRUE COPY OF THE PETITION IN RCP NO.146/2003. EXT.P2. TRUE COPY OF THE OBJECTIN FILED BY THE RESPONDENT IN RCP NO.146/2003. EXT.P3. TRUE COPY OF THE ORDER PASSED BY THE 3RD ADDL. MUNSIFF AND RENT CONTROL COURT, ERNAKULAM IN RCP 146/2003 DATED 20.12.2005. EXT.P4. TRUE COPY OF THE JUDGMENT PASSED BY THE 2ND ADDL. DISTRICT JUDGE ABD RENT CONTROL APPELLATE AUTHORITY I R.C.A. 18/2006 DATED 11.8.2009. EXT.P5. TRUE COPY OF IA. N0.5667/2009 SUPPORTED BY THE AFFIDVIT OF THE COUNSEL. EXT.P6. TRUE COPY OF THE ORDER PASSED BY THE 2ND ADDL. DISTRICT JUDGE AND RENT CONTROL APPELLATE AUTHORITY IN IA. NO.5667/2009 IN R.C.A. NO.18/2006 DATED 22.11.2009. RESPONDENTS' EXHBITS. EXT.R(1)(a): TRUE PHOTOCOPY ENCUMBRANCE CERTIFCATE DATED 24.01.2008. EXT.R1 (b): TRUE PHOTOCOPY OF THE DOCUMENT NO.1950/1997. / TRUE COPY / P.S. TO JUDGE VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 16864 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of June, 2010 JUDGMENT Basheer, J. Tenant of a commercial building has filed this writ petition under Article 227 of the Constitution of India, praying for issue of a writ in the nature of certiorari to quash Ext.P4 and Ext.P6 orders passed by the Rent Control Appellate Authority, Ernakulam. 2. By Ext.P4 judgment the Rent Control Appellate Authority allowed the appeal filed by the respondents herein and remanded the case to the Rent Control Court to consider the prayer for eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act”) without entering into the question relating to denial of title, as provided under section 11(1) of the Act. 3. It is the common case of learned counsel on either side that the Appellate Authority passed Ext.P4 judgment without hearing the respective counsel for the parties. W.P.(C) No. 16864/10 2 4. It is beyond controversy that the tenant had disputed the title of the landlords to the building which is sought to be evicted, relying on an encumbrance certificate. The contention of the tenant appears to be that the land lords have already alienated the entire property to others. 5. Learned counsel for the respondents/landlords submits that the relevant entry, which relates to the petition schedule property, is incorrect. This aspect came to the knowledge of the landlords subsequent to the passing of the order by the Rent Control Court. It is the case of the respondents that they have already obtained documents to show that those entries are incorrect. The Sub Registrar has, in fact, carried out necessary corrections in the registers concerned. It is further submitted by the learned counsel that these documents have already been produced before the Rent Control Court after the order of remand passed by the Rent Control Appellate Authority. He, therefore, prays that in view of the subsequent developments, the finding entered by the Rent Control W.P.(C) No. 16864/10 3 Court may be set aside and the question of title may be ordered to be reconsidered. 6. The prayer for review of Ext.P4 judgment was turned down by the appellate authority since, according to the learned Judge, sufficient opportunity had been given to both sides, and therefore, there was no reason to re-open or review “the well considered order”. We refrain from making any comment or observation on the said view taken by the appellate authority. 7. Learned counsel for the petitioner fairly submits that in view of the documents now being sought to be pressed into service, the petitioner may not have any objection in directing the Rent Control Court to reconsider the question of title. The above submission is recorded. In that view of the matter, Ext.P3 order is set aside. 8. Since Ext.P3 order has been now set aside, Ext.P4 and P6 orders passed by the Rent Control Appellate Authority cannot survive. Therefore, these orders are also liable to be set aside. We do so. W.P.(C) No. 16864/10 4 9. The Rent Control Court is directed to consider the eviction petition afresh on its merit and in accordance with law, after affording sufficient opportunity to the parties to adduce further evidence in the matter. The Rent Control Court shall consider the question of title raised by the petitioner as a preliminary point and pass orders on that issue expeditiously, at any rate within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of in the above terms. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn