IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 8702 of 2010(K) ------------------------- AGAINST THE ORDER DATED 06/02/2010 IN IA.1105/2009 IN RCP.25/2008 of MUNSIFF COURT, PARAVUR .................... PETITIONER(S): --------------- 1. DR.K.T.XAVIER,S/O.KANAPPILLY THOMAS, AGED 70,RESIDING AT FLAT NO.VIII B,KATTIKKARAM TOWER, OFF PROVIDENCE ROAD,ERNAKULAM,KOCHI-16. 2. MRS.SALI XAVIER,W/O. DR.K.T.XAVIER, AGED 59 YEARS,FLAT NO.VIII B,KATTIKKARAM TOWER, OFF PROVIDENCE ROAD,ERNAKULAM,KOCHI-16. BY ADV. SRI.T.B.THANKAPPAN SRI.T.T.HARIKUMAR RESPONDENT(S): --------------- 1. PEEYUS,S/O.LATE A.K.KUNJITHOMMAN,DOING BUSINESS IN BUILDING NO.VP/7/360,VARAPPUZHA PO, ERNAKULAM DISTRICT. 2. C.P.PAPPACHAN,S/O.LATE KOCHAPPU, DOING BUSINESS IN BUILDING NO.VP/7/358, VARAPPUZHA PO,ERNAKULAM DISTRICT. 3. K.R.JAYACHANDRAN,S/O.P.A.RAMACHANDRAN VAIDYAR,DOING BUSINESS IN BUILDING NO.VP/7/359 VARAPPUZHA PO,ERNAKULAM DISTRICT. 4. JOSE,S/O.LATE VIDAYATHIL JOHN, DOING BUSINESS IN BUILDING NO.VP/7/362, VARAPPUZHA PO,ERNAKULAM DISTRICT. 5. JOSE,S/O.LATE VIDAYATHIL JOHN, DOING BUSINESS IN BUILDING NO.VP/7/362, VARAPPUZHA PO,ERNAKULAM DISTRICT. 6. PUSHPAM JOSE,D/O.KOCHUTHRESSIA, VIDAYATHIL HOUSE,MANNARATHURUTHU, VARAPPUZHA PO,ERNAKULAM DISTRICT. 7. MARYKUTTY SEBASTIAN,D/O.KOCHUTHRESSIA, VIDAYATHIL HOUSE,MANNAMTHURUTHU, VARAPPUZHA PO, ERNAKULAM DISTRICT. 8. ANNIE VARGHESE,D/O.KOCHUTHRESSIA, VIDAYATHIL HOUSE,MANNAMTHURUTHU, VARAPPUZHA PO, ERNAKULAM DISTRICT. 9. THE STATE BANK OF TRAVANCORE, A BODY CORPORATE REPRESENTED BY ITS BRANCH MANAGER, VARAPPUZHA BRANCH, VARAPPUZHA,ERNAKULAM DISTRICT. 10. JAMES,S/O.CHAKKAPPAN JOSEPH, DOING BUSINESS IN BUILDING NO.7/361,VARAPPUZHA P.O, ERNAKULAM DISTRICT. ADV. SRI.SATHISH NINAN FOR R9 SRI.SANTHOSH MATHEW FOR R9 SRI.PHILIP T.VARGHESE FOR R1 & 3 SRI.K.SHAJU VARGHESE FOR R1 & 3 SRI.THOMAS T.VARGHESE FOR R1 & 3 SMT.ACHU SUBHA ABRAHAM FOR R1 & 3 SRI.G.PADMAKUMAR FOR R1 & 3 SMT.N.ASWATHY FOR R1 & 3 SMT.DIVYA KRISHNAN FOR R1 & 3 SRI.K.P.SOMASUNDARAN NAIR FOR R4,5 & 10 SMT.JOLIMA GEORGE FOR R4,5 & 10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX:- EXT. P1 TRUE COPY OF THE COMMON ORDER DT. 6-2-2010 IN IA. 1105/09 ETC. IN R CP.25/08 ETC. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------ WP(C). No. 8702 of 2010 ------------------------------------------- Dated this the 31st day of March, 2010 J U D G M E N T Pius C. Kuriakose, J. The landlords are the writ petitioners in this writ petition under Article 227 of the Constitution. They challenge Ext.P1 common order by which they sought for joint trial of RCP Nos. 25, 26, 27, 29, 30, 31, 33, 34 and 35 of 2008, separate rent control petitions filed by them in respect of different portions of a larger building belonging to them. 2. We have heard the submissions of Mr.T.B. Thankappan, learned counsel for the writ petitioners and those of Sri.Philip T.Varghese, learned counsel for respondents 1 and 3, Sri.K.P.Somasundaram Nair, learned counsel for respondents 4, 5 and 10 and Sri.Sathish Ninan, learned counsel for the 9th respondent State Bank of Travancore. Sri.T.B.Thankappan, learned counsel for the WP(C). 8702/10 - 2 - landlords petitioners would assail the impugned common order on the basis of the various grounds raised in the writ petition. The counsel for the respondents per contra would support the same on the basis of the reasons stated therein by the learned Rent Control Court. 3. We are of the view that the Rent Control Court was not justified in dismissing the application for joint trial. The ground under sub-section (3) of Section 11 was the common ground invoked in all the rent control petitions. The need projected under sub-section (3) of Section 11 was that the landlord petitioners need all the buildings which are subject matter of the RCPs, so that the first writ petitioner who is the petitioner in all the rent control petitions except RCP No. 34 of 2008 filed by the second writ petitioner who is none other than the wife of the first writ petitioner can conduct a hospital. While sub-section (3) of Section 11 of Act 2 of 1965 was invoked in all the RCPs, in two of the RCPs., i.e., WP(C). 8702/10 - 3 - RCP Nos. 29 and 30 of 2008 the ground under clause (iii) of subsection (4) of Section 11 was also invoked. 4. The learned Rent Control Court did notice that the landlord is practically the same in all the nine rent control petitions. But according to that court, since the respondents are different and since they have raised different contentions, allowing joint trial will “cause incalculable prejudice and damages to the tenants.” According to the Rent Control Court, by disallowing the joint trial petition no prejudice will be caused to the landlords since “burden is on the petitioner to establish that the need put forward by him is a bona fide one.” We are in agreement with the view of the learned Rent Control Court that in an eviction petition where the need under sub-section (3) of Section 11 is invoked as a ground, the landlord has the burden to establish that the need projected by him is a bona fide one. But the Rent Control Court should have remembered that WP(C). 8702/10 - 4 - the considerations for allowing or disallowing applications for joint trial of separate RCPs in respect of different portions of the one and the same larger building are not the considerations of burden of proof for establishing the eviction ground. On the contrary, the considerations are identity of parties, identity of the subject matter, commonalty of evidence, convenience of parties and the court, avoidance of duplicity or multiplicity of findings, consideration of saving valuable judicial time and certainly the consideration whether any legal prejudice will be occasioned to either of the parties by allowing or disallowing the request for joint trial. We are of the view that in the instant case no legal prejudice will be occasioned to the tenants by allowing joint trial of all the nine RCPs. The nature of evidence to be adduced by the landlords for establishing the bona fides of the need by them will be the same. It is not clear from the impugned order as to what WP(C). 8702/10 - 5 - was the nature of the contentions raised by the various tenants. We are informed that the contentions raised by the tenants in defence on the plea for eviction under sub-section (3) of Section 11 are mostly homologous, i.e., the need is not bona fide, the landlord has other buildings attracting first proviso to sub-section (3) of Section 11 and the tenant is entitled to the protection of the second proviso to sub- section (3) of Section 11. We are of the view that by issuing appropriate directions by which the tenants are permitted to substantiate the contentions raised by them through the statement of objections filed by them, any possibility of prejudice to the tenants can be avoided. It is true that in two of the rent control petitions additional ground under section 11(4)(iii) is also urged. Ofcourse in those two RCPs the court will have to examine the question whether the tenants in those two RCPs have come into possession of other buildings reasonably sufficient for their WP(C). 8702/10 - 6 - requirements in the same city, town or village. The landlord will have to adduce evidence for proving that ground and it may be necessary for the tenants also to prove (if it becomes evident that the tenant has come into possession of other buildings) that the other buildings possessed by the tenants are not reasonably sufficient for the tenants' requirements. This is a case where a little more evidence will have to be adduced in two of the nine RCPs in which the prominent and common ground is subsection (3) of Section 11. It is not proper to decline the joint trial. We are therefore inclined to allow this writ petition in the following terms. The impugned order is set aside and all the joint trial petitions filed by the petitioners are allowed. The learned Rent Control Court is directed to try the RCPs. jointly and dispose of them by a common order. That court should ensure that no prejudice is being occasioned to the tenants WP(C). 8702/10 - 7 - by the order of joint trial. This can be done by permitting the tenants to adduce whatever evidence they want to for the purpose of substantiating any additional or special contentions which they have raised. Evidence to be adduced by both sides shall not be shut out. Writ petition is allowed as above without any order as to cost. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-