IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 36262 of 2009(C) -------------------------- RCP.21/2008 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER(S): --------------- SANTHA PAUL,W/O.T.OOMMEN PANICKER, TOPS MANOR,PANAVELI.PO,KOTTARAKKARA. BY ADV. SRI. S.A. RAZZAK RESPONDENT(S): --------------- 1. K.A.GEORGE,S/O.ABRAHAM,KANNATT HOUSE, NADUVIL.P.O,KULATHUR DESOM,CHULAZHI VILLAGE, THALIPARAMBA TALUK,KANNUR DISTRICT. 2. M/S.M & N PUBLICATIONS LTD H.O. AT 8B, BAHDUR SHA SAFAR MARG,NEW DELHI,REPRESENTED BY MANAGER,PERUMPILLIL BUILDINGS,OPPOSITE MAHARAJA'S COLLEGE CROUND,M.G.ROAD,KOCHI-16. 3. M/S TOP CONSTRUCTIONS,REPRESENTED BY MANAGING PARTNER,T.OOMMEN PANICKER,TOPS MANOR, PANVELI.PO,KOTTARAKARA. 4. INDIAN OVERSEAS BANK,REPRESENTED BY SENIOR MANAGER,TALAP BRANCH,TALAP,KANNUR-670 002. ADV. SRI.P.B.SURESH KUMAR, SC,I.O.BANK FOR R4 SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.ADEEP ANWAR FOR R1 SRI.BABU PAUL - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2010, ALONG WITH RCR NO. 34 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WPC. 36262/2009) EXT.P1: PHOTOCOPY OF OS.693/2009 OF SUB COURT, ERNAKULAM. EXT.P2: PHOTOCOPY OF RCP.21/2008 OF RENT CONTROL COURT, ERNAKULAM. EXT.P3: PHOTOCOPY OF IA.2795/2008 IN RCP.21/2008. A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - RCR. No. 34 of 2010 & WP(C). No.36262 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of November, 2010 Judgment Basheer, J: These two cases are being disposed of by this common judgment since the issues involved in them are intrinsically interconnected. 2. The legal tussle in these two cases is essentially between the petitioner in the revision petition filed under Section 20 of the Kerala Buildings (Lease & Rent Control) Act 1965 and the petitioner in the writ petition filed under Article 227 of the Constitution of India. 3. A commercial building which forms part of a multi- storeyed building within the limits of the Corporation of Kochi was admittedly owned and possessed by Smt. Santha Paul, the petitioner in the writ petition. The said building was let out by her to M/s. M & N Publications Ltd. (hereinafter referred to as the tenant) in the year 1993 on a monthly rental arrangement. It is on record that the rental arrangement was renewed in the year 1998 and thereafter in the year 2005. The monthly rent now payable by the tenant to the landlord is Rs.24,000/-. 4. It is beyond controversy that Smt. Santha Paul WPC.36262/09. 2 executed a registered document in favour of Sri. K.A.George (hereinafter referred to as the petitioner) on August 31, 2005 purportedly assigning away all her right, title and interest in the building for a consideration of Rs.2 lakhs. At the time of execution of this assignment deed (Ext.A1) the tenant referred to above was in occupation of the building and the tenancy even now continues. 5. But it appears that on April 23, 2007 petitioner issued Ext.B1 notice to the tenant informing that the monthly rent of the building has to be paid to him with effect from May 1, 2007 since he had obtained all rights in respect of the tenanted premises from Smt. Santha Paul on the strength of Ext.A1 document. In response to the above notice, the tenant issued Ext.B2 notice to Smt. Santha Paul requesting her to respond to the demand made by the petitioner for remittance of rent to him since he had reportedly become the landlord of the said building. Smt. Santha Paul was further informed by the tenant that if she did not respond to the notice, he would be constrained to enter into a fresh lease arrangement with the petitioner. 6. The response from Smt. Santha Paul was quick and prompt. She informed the tenant that the so called assignment deed (Ext.A1) was a sham sale deed and it was executed only as a security for a loan availed from Indian Overseas Bank by a WPC.36262/09. 3 Construction Company of which she was also a partner. A copy of the said reply sent by Smt. Santha Paul dated January 25, 2008 is on record as Ext.B3. 7. Shortly thereafter in February 2008 petitioner instituted proceedings (RCP21/2008) for eviction before the Rent Control Court, Ernakulam under Section 11(3) of the Act against the tenant contending that the building was required for his bona fide own occupation to start a business in computer accessories. 8. The prayer for eviction was resisted by the tenant contending, inter alia, that the petition for eviction was not maintainable at all since there was no landlord-tenant relationship between the petitioner and the Company (tenant). It was further contended that Smt. Santha Paul the landlord of the Company had asserted her title to and interest over the petition schedule property and therefore the present eviction petition was not at all maintainable. We do not deem it necessary to refer to the other contentions raised by the tenant before the Rent Control Court at this stage in view of the order that we propose to pass. 9. The Rent Control Court repelled the contentions raised by the tenant and proceeded to decide the preliminary issue as to whether there exists landlord-tenant relationship between the petitioner and the Company. The Rent Control Court repelled the contentions raised by the tenant and answered the question in WPC.36262/09. 4 favour of the petitioner. In other words, the Court held that there existed landlord-tenant relationship between the petitioner and the Company. 10. The above order passed by the Rent Control Court was challenged before the Rent Control Appellate authority under Section 18 of the Act. The appellate authority reversed the order passed by the Rent Control Court and held that the dispute raised by the tenant denying the title of the petitioner to the plaint schedule building is bona fide as provided under the proviso to Section 11(1) of the Act. The above order passed by the appellate authority is under challenge in the revision petition. 11. Smt. Santha Paul has instituted the writ petition under Article 227 of the Constitution of India with a solitary prayer which reads thus: “to issue a writ of mandamus or other appropriate writ, direction or order directing the Subordinate Rent Control Court, Ernakulam to defer the disposal of RCP.21/2008 and the 1st respondent's claim for deposit of rent till the title dispute in OS.No.693/09 pending before the Sub Court, Ernakulam relating to the demised premises is finally decided” 12. We have heard learned counsel for the parties at length WPC.36262/09. 5 and perused the relevant records which have been called for from the Rent Control Court. 13. It may at once be noticed that Smt. Santha Paul had admitted execution of Ext.A1 registered document assigning her title and interest over the subject matter in favour of the petitioner. The document was executed in the year 2005. As has been noticed already, the tenant has been in occupation of the building in question since 1993 till date though there were two renewals of the lease arrangement in between. At present the rent payable by the tenant is stated to be Rs.24,000/- per month. 14. According to Smt. Santha Paul, Ext.A1 document happened to be executed by her under certain circumstances which were beyond her control and solely for the purpose of availing of a loan from a financial institution to tide over the crisis that was being faced by the construction Company in which she was also a partner. It is pointed out by her that a ridiculously low price of Rs.2 lakhs was shown in the document for a building having an area of 2500 sq.ft. facing the main arterial road in the city. 15. But petitioner has a totally different version about the entire issue. According to him, the document is totally valid and binding on Smt. Santha Paul who does not have a case that she was invalidated in any way either physically or mentally at the time of execution of the document. She had executed the document with WPC.36262/09. 6 her eyes wide open and it cannot be assumed that she did not know where the property was situated or what was the value shown in the document. 16. Yet again we refrain from dealing with the above contention since admittedly the issue is at large in OS.No.693/09 instituted by Smt. Santha Paul in the Subordinate Judge's Court, Ernakulam. That there exists a dispute between Smt. Santha Paul and the petitioner in respect of the property is beyond controversy. While Smt. Santha Paul does not dispute the execution of the document as such, she has a definite case that the document was never intended to convey her right, title and interest in the property in favour of the petitioner. 17. But in the two cases on hand, we are not at all concerned with the issue referred to above. The short question that arises for consideration before us is whether the view taken by the Rent Control appellate authority as regards the fate of the eviction proceedings is correct or not, especially on the face of the pendency of the civil suit instituted by Smt. Santha Paul touching upon the validity of the assignment deed executed by her. 18. In this context it may be noticed that petitioner had not issued any notice to the tenant after execution of Ext.A1 document in the year 2005 demanding payment of rent to him. It was only in 2007 that the petitioner chose to do so by sending Ext.B1 notice. It WPC.36262/09. 7 is the admitted position that petitioner had not received rent from the tenant at any point of time even though, according to him, he was entitled to do so. When the petitioner issued such a demand notice for the first time in 2007, the immediate response from the tenant was to alert his landlord ( Smt. Santha Paul) and ask her whether she had conveyed her title and interest in the property to the petitioner. The response of Smt. Santha Paul was that she had not done so. This clearly indicates that there existed a dispute between the petitioner and Smt. Santha Paul. On that short ground we are of the view that the Rent Control Appellate Court was justified in holding that there existed a dispute as regards the landlord-tenant relationship between the petitioner and the Company. 19. The proviso to Section 11(1) of the Act postulates that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide or not. If it is found that the denial of title is bona fide, the landlord shall be entitled to sue for eviction of the tenant in a civil court. The proviso further postulates that the civil court will be entitled to pass a decree for eviction in such eventuality on any of the grounds mentioned in Section 11, notwithstanding the fact that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. WPC.36262/09. 8 20. It has already been noticed that Smt. Santha Paul has instituted a suit before the Subordinate Judge's Court, Ernakulam as OS.No.693/2010 praying for a decree and judgment for a declaration that sale deed No.5871/05 (Ext.A1) is void and inoperative. There is a further prayer for grant of a declaration of her right, title and interest over the plaint schedule property. Since a dispute relating to the title of the property, which is the subject matter of the eviction proceedings, is pending consideration before the civil court and also for the reasons stated by us in the earlier part of this judgment, we are of the view that it would be appropriate that the parties are relegated to the civil court as has been done by the appellate authority. In that view of the matter, no interference is warranted with the order passed by the Rent Control Appellate Authority. 21. As regards the writ petition filed by Smt. Santha Paul, it is made clear that the tenant shall continue to deposit the rent before the Rent Control Court every month. The arrears deposited pursuant to an interim order issued by this Court in the writ petition shall remain in the Court and its disbursement shall be subject to further orders that may be passed by the civil court. 22. The revision petition and the writ petition are disposed of in the above terms. Having regard to the peculiar facts and circumstances of WPC.36262/09. 9 the case, we are satisfied that the Subordinate Judge's Court, Ennakulam before which OS. 693/06 is pending has to be directed to expedite disposal of the suit. The court concerned shall dispose of the suit in accordance with law as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.