IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 RCRev..No. 313 of 2005() ------------------------ RCA.20/1997 of DISTRICT COURT, THALASSERY RCP.205/1995 of PRL.M.C.,KANNUR .................... PETITIONERS IN RCR - APPELLANTS IN RCA - RESPONDENTS IN RCP -------------------------------------- 1. P.SANTHA, WIDOW OF C.PRABHAKARAN, OM NIVAS, NEAR CANNANORE NURSING HOME, TALAP, KANNUR-1. 2. C.ASHA, W/O.K.C.RAMESHAN, RAMLEELA, POST CHALAD, MANAL, KANNUR DISTRICT. 3. C.NISHA, W/O.DR.K.C.VENUGOPAL, NALAMPEEDIKA, POST KOLASSEERY, KANNUR DISTRICT. 4. C.SANJAY, S/O.PRABHAKARAN, OM NIVAS, NEAR CANNANORE HOME, TALAP, KANNUR-2. 5. ASHOKAN, C.C. 1191, PUTHUMA READY MADES, M.A.ROAD, KANNUR-1. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT IN RCR - RESPONDENT IN RCA - PETITIONER IN RCP --------------- PUTHALATH RATNAKARAN, S/O. LAKSHMI AMMA, NO OCCUPATION, RESIDING AT CHIRAKKAL AMSOM, DESOM, KANNUR TALUK. ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON 27/08/2009 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------- R.C.R. 313 of 2005 ------------------------------------------------- Dated: AUGUST 27, 2009 ORDER Barkath Ali, J. In this revision under sec.20 of the Kerala Buildings (Lease and Rent Control) Act by the defeated tenants and the alleged sub-tenant, the challenge is to the judgment of the Rent Control Appellate Authority (District Judge, Thalassery) dated July 20, 2005 confirming the order of the Rent Control Court (Prl. Munsiff, Kannur) dated October 31, 1996 ordering eviction under sec.11 (3) and 11(4)(i) of the Act. 2. The revision respondent/landlord filed RCP 205/1995 before the Rent Controller (Prl. Munsiff), Kannur, seeking eviction under sec.11(3) and 11(4)(i) of Act 2 of 1965 alleging that the tenants/revision petitioners 1 to 4 sublet the petition schedule room to the 5th revision petitioner without the consent of the landlord and that the landlord bona fide requires the petition schedule shop room to start a stationery business, that the landlord has no other room in his possession and that the tenants R.C.R. 313 of 2005 2 are not entitled to the benefits of the first and second provisos to sub-sec.(3) of sec.11 of the Act. The revision petitioners 1 to 4 who are the tenant and the 5th revision petitioner, the alleged subtenant, resisted the claim for eviction contending that the predecessor of revision petitioners 1 to 4, late Mr. Prabhakaran, was conducting a medical shop in the petition schedule room in partnership with the 5th revision petitioner, that after his death revision petitioners 1 to 4 along with the 5th revision petitioner formed a partnership, that there is no sublease as alleged by the revision respondent, that the bona fide need alleged by the landlord is not genuine and that the same is barred by the decision in the previous RCP 172/1981 and that the revision petitioners are entitled to protection under the first and second provisos to sub-sec.(3) of sec.11 of the Act. 3. Before the lower court the landlord was examined as PW.1 and he produced Exts.A1 to A7. Rws.1 to 8 were examined and Exts.B1 to B21(f) were marked on the side of the revision petitioners who are the tenants and the alleged subtenant. Exts.X1 to X6 were also marked. The Rent Control Court on an appreciation of evidence upheld the plea of the landlord and ordered eviction under sec.11(3) and 11(4)(i) of the Act. The Appellate Authority on an appeal by the revision petitioners R.C.R. 313 of 2005 3 confirmed the said findings of the Rent Control Court. Now the tenants and the alleged subtenant have come up in revision. 4. Sri P.B. Krishnan, learned counsel for the revision petitioners, arguing the revision petition submitted that the plea of the bona fide need raised by the landlords is barred in view of the decision on the earlier RCP 174/1981 as provided under sec.15 of the Act, that during the pendency of the earlier rent control proceedings the landlord had rented out some of his rooms which proves lack of bona fides on the part of the landlord and that in view of the partnership deed between the tenants and the alleged subtenant, there cannot be any sublease in favour of the 5th revision petitioner. 5. Sri V.R.K. Kaimal, learned counsel for the landlord, would submit that under changed circumstances the landlord can claim eviction on the ground of bona fide need, that the partnership deed executed by the tenants and the alleged subtenant is a document made to cover up the sublease. 6. The following questions arise for consideration: 1. Whether the claim of bona fide need put forward by the landlord is barred under sec.15 of the Act in view of the dismissal of the earlier RCP? 2. Whether the order of the Rent Control Court ordering R.C.R. 313 of 2005 4 eviction under sec.11(3) and 11(4)(i) of the Act which is confirmed in appeal can be sustained? Point No.1 7. The main contention of the revision petitioner is that the claim of eviction under sec.11(3) of the Act is barred under sec.15 of the Act in view of the dismissal of the earlier RCP 174/1981 of the landlord. But it is settled law and held in Korin v. Indian Cables Co. Ltd. ( AIR 1978 SC 312) that there is no res judicata by the change of circumstances. Even in the decision in Jayaram v. Achuthan Thampi (1997 (2) KLT 909) cited by the learned counsel for the revision petitioners, a Division Bench of this court has held that under changed circumstances, the claim of bona fide need is not barred. The scope of sec.15 of the Act came up for consideration before this Court in Govindan v. Subaida Beevi (1997 (1) KLT 910) wherein a Division Bench of this Court has held that so far as the bona fide requirement and non-payment of rent is concerned, it is a recurring cause of action and therefore if there is change of circumstances, sec.15 of the Act will have no application. 8. The Apex Court has held in N.R.Narayan Swamy v. Francis Jagan - AIR 2001 SC 2469: R.C.R. 313 of 2005 5 “6. In our view the High Court ought to have considered the fact that in eviction proceedings under the Rent Act the ground of bona fide requirement or non- payment of rent is a recurring cause and, therefore, the landlord is not precluded from instituting fresh proceeding. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed, it cannot be held that once a question of necessity is decided against the landlord, he will not have a bona fide and genuine necessity ever in future. In the subsequent proceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed.” Following the above decision in Vasu V. Varghese (2007(4) KLT 1013) a Division Bench of this Court has held that the bar under sec.15 will not apply in the case of bona fide requirement or non- payment of rent as there is recurring cause of action. 9. In the present case Exts.B1 to B3 are the certified copies of the orders in RCP 174/1981 dated 16.4.1983, judgment of Rent Control Appellate Authority in RCA 58/1983 dated 19.9.1978 and the order in RCRP 24/1988 dated 20.8.1988 respectively. The Rent Control Court as well as the Appellate Authority has considered the question in detail and found that in R.C.R. 313 of 2005 6 the present case there was change of circumstances and that therefore the claim of bona fide need raised by the landlord is not barred under sec.15 of the Act. We see no reason to interfere with the said concurrent findings of both the courts below. 10. It was next argued by Sri P.B.Krishnan, learned counsel for the revision petitioners, that during the pendency of previous proceedings, the landlord let out rooms belonging to him in Thoonoli buildings which shows lack of bona fides on his part. There is no substance in the above contention. It was correctly pointed out by Sri V.R.K. Kaimal, learned counsel for the revision respondent and it has come out in evidence that P.W.1 is only a co-owner of that building and that rooms were let out long back. Rws.5, 7 and 8 are tenants of those buildings. They have testified that those buildings were let out in 1991 and 1994. 11. Ext.X6 is the rent receipt dated 6.10.1994 issued by the landlord to RW.6. The Rent Control Court has considered this aspect in detail and rejected the above contention of the tenants and found that the bona fide need put forward by the landlord is genuine which is confirmed by the Appellate Authority. Both the courts below have also found that no other suitable building is in the possession of the landlord and that the tenants have failed to prove that they are depending mainly on the income from the R.C.R. 313 of 2005 7 business conducted in the petition schedule shop room and that there are other suitable vacant building available in that locality to shift their business. We see no ground to interfere with the said concurrent findings of the Rent Control Court and the Appellate Authority. 12. Regarding subletting, Sri P.B.Krishnan, learned counsel for the revision petitioners, cited the decisions in Girdharbhai v. Saiyed Mohmad Mirsaheb Kadri and others (AIR 1987 SC 1782) wherein the Apex Court, relying on the decision in Madras Vabgakire Transport Co. (West) v. Inder Singh (AIR 1986 SC 1564) held that if there was a partnership firm of which the tenant of the premises in which the business is carried on is a partner, there is no subletting. The above principle has been affirmed by the Apex Court in M/s. Mahendra Saree Emporium v. G.V.Srinivasa Murthy (AIR 2004 SC 4289). But the principles laid down in the above decision do not apply to the facts of the present case. In the present case both the courts below have found that the partnership deed executed between the 5th revision petitioner and the tenants was made to cover up the sub lease in favour of the 5th respondent. Therefore we find no merit in the above argument advanced by the learned counsel for the tenants. R.C.R. 313 of 2005 8 13. Sri P.B.Krishnan, learned counsel for the revision petitioners, arguing the revision petition submitted that the claim for eviction on the ground of sublease is barred by virtue of Art.137 of the Limitation Act, 1963 as the alleged sublease was within the knowledge of the landlord in 1990 itself as admitted by PW.1 during cross-examination. Citing the decisions in Narayani v. District Judge (1991 (1) KLT 646, para 1), Sreenivasa Kamath v. Ananda Kamath & Sons (1992 (1) KLT 190 para 35), Gopalan v. Aboobacker (1995(2) KLT 205 (SC) H.N.) and Abdul Rahiman v. Hameed Hassan Perumal & Ors. (1995 (2) KLT 794 H.N.), he argued that Art.137 of the Limitation Act of 1963 applies to proceedings launched in a 'Court' and its scope is not confined to 'Civil Court' alone. 14. But a Division Bench of this Court in Sadanandan v. Pradeepan (2001 (2) KLT 913) has discussed in detail the scope of applicability of Art.137 of the Limitation Act to rent control proceedings and found that Rent Control Court is not a civil court in the strict sense of the term on the scheme of the Kerala Buildings (Lease and Rent Control) Act and that therefore Art.137 of the Limitation Act would not apply to the initiation of a proceeding before the Rent Control Court. It is further observed in the said decision that where a subletting is involved, the R.C.R. 313 of 2005 9 landlord gets a recurring cause of action and that every moment the objectionable subtenancy continues, the landlord get a right to apply for eviction under the Act after complying with the requirement of the proviso to sec.4(1) of the Act. That being so, the above contention raised by the learned counsel for the revision petitioners will not stand in the light of the principles laid down in Sadanandan's case. Thus, the subtenancy having been created not as authorised by the lease or with the consent of the landlord, the order of eviction under sec.11(4)(i) of the Act is fully justified. We therefore confirm the same. 15. We have gone through the evidence adduced by both the parties before the Rent Control Court and the order of the Rent Control Court and the judgment of the Appellate Authority. We find no illegality, irregularity or impropriety in the order of the Rent Control Court and in the judgment of the Appellate Authority warranting invocation of revisional jurisdiction of this Court under sec.20 of the Act. That being so, the revision petition has to be dismissed and we do so. 16. Sri P.B.Krishnan, learned counsel for the revision petitioners, lastly submitted that the revision petitioners may be granted one year time to vacate the premises, which is opposed by Sri V.R.K. Kaimal, learned counsel for the revision R.C.R. 313 of 2005 10 respondents. Taking into consideration the fact that the tenants are doing business in the premises, we feel that time till 31.1.2010 can be granted to the revision petitioners to vacate the premises on the following conditions: 1. The revision petitioners shall file an affidavit within one month from this date before the Rent Control Court or the Execution Court, as the case may be, undertaking to surrender possession of the petition schedule building on or before 31.1.2010. On receipt of the said affidavit, delivery shall be deferred till 1.2.2010. 2. The revision petitioners shall pay rent up-to-date within one month from this date and future rent as and when the same falls due, failing which the revision petitioners will not be entitled to the benefit of the time granted by this Court. In the result, the revision petition is dismissed with the above directions. The parties shall suffer their own cost. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-