IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 RCRev..No. 109 of 2008() ------------------------ RCA.41/2006 of D.C. & SESSIONS COURT,KOLLAM RCP.11/1999 of PRL.M.C., KOLLAM .................... : REVISION PETITIONER/APPELLANT/COUNTER PETITIONER ----------------------------------------------------------------- SREERAJ, S/O.P.K.RAJAN, AGED 39 YEARS, 'SWAPNA', VRA 169, VADAKKUMBHAGOM RES.ASSOCIATION, KC XLIII - 98, (OLD NO.M.C.NO.XVI/767) VADAKKUMBHAGOM, KOLLAM - 691 001. BY ADV. SRI.BECHU KURIAN THOMAS SRI.PAUL JACOB (P) RESPONDENTS: RESPONDENT/PETITIONERS ----------------------------------- 1. BABURAJ, S/O.SANKARAN, THAMBURU, THEKKEVILLA CHERRY, MUNDAKKAL VILLAGE, KOLLAM. 2. JYOTHI, W/O.SANKARAN, TAMBURU, THEKKEVILLA CHERRY, MUNDAKKAL VILLAGE, KOLLAM. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.109 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of July, 2008. O R D E R Raman, J. This is a revision against the order in R.C.A.No.41/2006 on the file of the District Court, Kollam. The petitioner herein is arrayed as a respondent in R.C.A.No.11/1999 on the file of the Rent Control Court, Kollam. The said Rent Control Petition was filed by the alleged landlord seeking eviction of the tenanted premises on the ground of Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965. The petitioner herein who is a counter-petitioner in the said petition, raised preliminary objection disputing his relationship as that of a tenant and also the title of the Rent Control petitioner. The Rent Control Court, by order in I.A.No.2133/2001 decided this issue against the petitioner holding that there is no bonafide dispute of title. Aggrieved thereby, he preferred appeal before the Appellate Authority, R.C.A.No.41/2006. The Appellate Authority, by the order impugned in this revision, remanded the case for fresh consideration in accordance with law. However, the appellate court, in the course of its discussion made certain observations in paragraph 21 of RCR 109/2008 -2- the judgment after referring to the factual background of the case that 9 years have elapsed after the eviction petition was filed and so it thought fit to hold that though the issue regarding title needs to be considered afresh, that need not be heard as a preliminary issue. It also found that the issue regarding bonafide dispute of title itself is required to be decided after taking evidence and also observed that if the issue regarding the title is directed to be tried as a preliminary issue the finding regarding that aspect is likely to be challenged by either of the parties and if ultimately the issue regarding title is held in favour of the landlord and the finding is to the effect that there is a landlord – tenant relationship between the parties, then evidence will have to be taken on other issues. To avoid such contingency it was held that it is only appropriate that issue regarding as to whether there is bonafide dispute of title be decided along with other issues. 2. Placing strong reliance on the Full Bench decision of this court in Parthakumar v. Ajith Viswanathan (2006 (2) KLT 250), more particularly paragraphs 17, 18 and 28, it is contended that the Full Bench has held that the Rent Control Court gets jurisdiction only in a case where there is landlord/tenant relationship subsists between the parties and therefore if there is a bonafide dispute of title necessarily the party should have to be relegated to a civil court since the jurisdiction of the Rent RCR 109/2008 -3- Control Court is ousted by the Act itself. We have no doubt as regards the settled position in this regard. Going by the provisions contained in Section 11(1) of the Act, there can be no doubt that only if there is a pre- existing right of landlord and the tenant, the other issue as to whether the landlord is entitled to seek eviction, will arise for consideration and since the title dispute, if arises, is a matter to be decided by the civil court, and until that issue is decided, the other issues raised in the Rent Control Petition cannot be decided as such. To that extent, we find that the order of the court below directing the Rent Control Court to decide the issue regarding bonafide dispute of title along with other issue, is not correct. In the circumstances and in the view we are taking, we dispose of the revision petition itself without notice to the other side. 3. The observation of the court below that the issue regarding as to whether there is any bonafide dispute of title, cannot be decided along with other issues. At the same time, we cannot prevent the court from taking evidence when it is felt that even this issue has to be decided only after taking evidence. As a matter of fact, in the present case the Rent Control Court decided the issue without any evidence, which gave rise to an appeal by the revision petitioner himself. It is not an invariable rule of law that whenever there is a preliminary issue, it shall be decided without taking RCR 109/2008 -4- evidence and based on the records produced. That will depend upon the nature of the issue raised, nature of the contentions between the parties and in appropriate cases it may even be necessary to take evidence even to decide the preliminary issue. Therefore, it is always open to the court to take evidence in the matter and at the same time, we direct that only when it is found that there is no bonafide dispute of title, that it shall proceed to enter any finding on other issues in the case. This matter is thus clarified. The revision petition is disposed of as above. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/