IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 11TH DAY OF NOVEMBER 2011/20TH KARTHIKA 1933 RCR.No. 411 of 2011 ( ) ----------------------- RCA.22/2011 OF RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.17 OF 2004 OF RENT CONTROL COURT, TRIVANDRUM REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------- SAROJINI AMMA, T.C.64/2006 (TP.1/63) VARAMBIL VEEUD, THIRUVALLOM VILLAGE THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT/RESPONDENT/PETITIONER: ---------------------------------- 1 A.R.RATHEESH CHANDRAN, RESIDING AT ANANDA BHAVAN, THIRUVALLOM VILLAGE THIRUVANANTHAPURAM-695 314. By ADV. SRI.G.RAMOHAN SRI.G.P.SHINOD MANU. V. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11- 11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ----------------------------------------------- RCR. No. 411 of 2011 ----------------------------------------------- Dated this the 11th day of November, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the alleged tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the grounds of arrears of rent under Section 11(2)(b) and bona fide need for own occupation under sub-section (3) of Section 11. A preliminary contention which was raised by the tenant who was sought to be evicted on the grounds of arrears of rent and bona fide need for own occupation was that she denies the title of the landlord and the existence of a landlord - tenant relationship between her and the respondent, the petitioner in the RCP. The Rent Control Court would conduct an enquiry under the proviso to sub-section (1) of Section 11 and hold that denial of title raised by the tenant is a bonafide one. According to RCR. 411/11 -2- the Rent Control Court, the landlord has to move the civil court for removing the cloud cast on his title and in that view of the matter the Rent Control Court dismissed the RCP relegating the landlord to a competent civil court. Even though the landlord preferred an RCA against the above order of the Rent Control Court, the Rent Control Appellate Authority also confirmed the decision of the Rent Control Court. The landlord did not leave the battle there. The landlord preferred RCR No. 55 of 2008 before this Court. This court by a detailed order set aside the order of the Rent Control Court as well as the judgment of the Appellate Authority and found that the denial of title raised by the tenant was bereft of bonafides. The RCR was allowed and the Rent Control Court was directed to enquire into the RCP on the merits of the grounds and to take a decision. Pursuant to the above order, further enquiry was conducted and on appreciating the entire evidence the Rent Control Court came to the conclusion that the need projected by the RCR. 411/11 -3- landlord was bona fide. It was held that the first proviso to sub-section (3) of Section 11 does not have any application as it is not contended that the landlord has some other building of his own in his possession. It was also found that the question of the tenant getting the benefit of the second proviso does not arise as the building in question is a residential building. Accordingly, order of eviction was passed. The learned Appellate Authority under the impugned judgment considered the appeal preferred by the tenant and made a reappraisal of the evidence. The Appellate Authority concurred with all the findings of the Rent Control Court and has accordingly dismissed the appeal. 2. In this revision under Section 20 various grounds have been raised and Sri. K.B. Pradeep, learned counsel for the revision petitioner addressed arguments before us based on those grounds. According to Mr. Pradeep, the scope of the remand order passed by this Court in RCR 55/08 was RCR. 411/11 -4- not properly understood by the Rent Control Court. The remand order was an open remand and parties had been permitted to adduce evidence. According to Mr. Pradeep, the evidence of PW-1 could not have inspired confidence in the mind of the Rent Control Court and the Appellate Authority. Counsel argued that though it is true that the question whether the denial of title raised by the tenant is bona fide or not was finally decided by this Court in favour of the landlord, the question whether there exists a landlord tenant relationship between the parties has never been considered. According to the learned counsel, the existence of a landlord - tenant relationship between the parties is sine qua non for maintaining any petition for eviction under Section 11 of Act 2 of 1965. According to the learned counsel, the decree in O.S. 719 of 1998 was actually set aside by the court of appeal in A.S. no. 68 of 2001. The suit was dismissed. Hence it is not correct to say that the position that the revision petitioner is the tenant under the RCR. 411/11 -5- respondent landlord stands established. Mr. Pradeep submitted that appreciation of evidence by the two fact finding authorities was erroneous. The evidence adduced on the side of the tenant was completely ignored resulting in serious prejudice to the revision petitioner. 3. All the submissions of Mr. K.B.Pradeep were very strongly opposed by Sri. V. Manu, learned Counsel for the respondent. According to Mr. Manu, it is not open to the revision petitioner to re-agitate the issue whether the denial of title is bona fide. That issue has been finally decided by this Court by order in RCR No. 55 of 2008. Under that order this court directed the Rent Control Court to enquire into the merits of the eviction grounds and it was pursuant to that judgment that eviction order was passed by the Rent Control Court. In view of the finality attained by the order in RCR No. 55 of 2008 all concerned are bound to proceed as if the existence of a landlord tenant relationship between the parties has been accepted by the High Court. Mr. Manu RCR. 411/11 -6- reminded us of the limits of jurisdiction under Section 120 and submitted that in this jurisdiction this court is not expected to make a de novo reappraisal of the evidence. What this Court is expected to do at the utmost is to make a quick survey of the evidence for the purpose satisfying that there is no illegality, irregularity or impropriety about the judgment of the final fact finding authority, viz. the Rent Control Appellate Authority. 4. We have given our anxious consideration to the submissions addressed at the Bar. We have gone through the impugned judgment of the Rent Control Appellate Authority and the order of the Rent Control Court by which the eviction of the revision petitioner is ordered. We have also gone through the order of the Rent Control Court by which it was found that the denial of title raised by the tenant is bona fide. We have considered the order of this Court in RCR. No. 55 of 2008. A quick survey of the other materials particularly Ext. A11 copy of the lawyer notice RCR. 411/11 -7- which was refused to be accepted by the tenant, Ext.A17 judgment of the civil court in O.S. 719 of 1990, Ext.A20 judgment of the first appellate court in A.S. No. 58 of 2001 and the evidence of PW-1 is also made by us. 5. Two questions arise for decision by us in this revision. First, whether it is open to the revision petitioner to urge that the Rent Control Petition is not maintainable as there is no landlord tenant relationship existing between the parties, second, whether there is any illegality, irregularity or impropriety about the order of eviction concurrently passed against the revision petitioner under sub-section (3) of Section 11. According to us, both these questions can be answered only in the negative. Resisting the RCP it was contended by the revision petitioner that he denies title claimed by the respondent over the building. The claim of the landlord was that he has proprietory title and that the jural status of the revision petitioner is not that of building tenant. The landlord had commenced the proceedings for RCR. 411/11 -8- evicting the tenant by instituting an original suit O.S. No. 719 of 1998 before the Principal Munsiff's Court, Thiruvananthapuram. This the landlord did as at that time the provisions of Act 2 of 1965 had not been made applicable to the area where the building is situated. In that suit it was contended that the landlord does not have title and that it is the respondent who is having title. After full fledged trial in which the evidence consisted of Exts.A1 to A16, B1 and B2 and the oral evidence of three witnesses on the side of the plaintiff as PWs 1 to 3 and one witness DW-1 on the side of the tenant, the suit was decreed repelling all the contentions raised. It was found that the tenant is a building tenant and that he should vacate as the tenancy is terminated. Against that judgment and decree, the appeal was preferred by the revision petitioner as AS. No. 68 of 2001. Ext.A20 is the appellate judgment. A reading of Ext.A20 will show that the only reason on which the trial court decree was set aside is that in view of the extension of RCR. 411/11 -9- the provision of Act 2 of 1965 (Kerala Buildings (Lease & Rent Control) Act ) it is possible for the landlord to evict the tenant only under the provisions of that Act. Reading of paragraph 10 of the above judgment will show that the one point which was highlighted before the appellate court was that the suit has become not maintainable in view of the extension of the provisions of the Buildings Lease and Rent Control Act to the area. It was upholding that argument that the eviction decree passed by the trial court was set aside. According to us, it is not open to the revision petitioner to urge now that he is not a building tenant. We are not impressed by the submission of Mr. Pradeep that the remand order passed in RCR No. 55 of 2008 was not correctly understood by the Rent Control Court and that the Rent Control Court has not decided whether there is existence of a landlord tenant relationship between the parties. First of all we do not agree that the order passed by this Court in RCR No. 55 of 2008 was an order of RCR. 411/11 -10- remand. It was an order finally deciding that the denial of title raised by the tenant under the proviso to Section 11 (10) is not a bona fide one. The merits of the eviction ground had not been examined at all by the Rent Control Court. The Rent Control Court was directed to examine and take a decision for the first time on the merits of the eviction ground. No issue decided earlier by the Rent Control Court had been remitted. An issue which was not decided earlier was only directed to be decided. It is true that this court in the judgment in RCR. No. 55 of 2008 was concerned with the issue of proprietory title. This happened only because the revision petitioner had in his statement of objections denied the propriety title of the landlord and set up title in himself. But it should be remembered that the revision petitioner did not have a contention that apart from his denial of the proprietory title claimed by the landlord he was denying the existence of the landlord tenant relationship. As already noticed by us, existence of a RCR. 411/11 -11- landlord tenant relationship was established before the civil court. The Appellate Court passed Ext. P20 accepting the revision petitioner's case that it is Act 2 of 1965 which applies for evicting the revision petitioner. 6. We therefore are of the view that the rent control petition is perfectly maintainable as revision petitioner is a tenant under the respondent. We will now examine whether there is any illegality, irregularity or impropriety about the order of eviction concurrently passed under Section 11(3). The respondent is a young man. Admittedly, he has no other building of his own. His oral evidence as PW-1 which was to the effect that he wants to set up residence in the petition schedule building was not shaken in cross examination. When two fact finding authorities have accepted that evidence, this court will not be justified in setting aside the finding that the need of PW-1 to occupy the building for his residence is bona fide. As noticed by the Rent Control Appellate Authority the tenant did not have a RCR. 411/11 -12- case that the RCP was liable to fail by virtue of the first proviso to sub-section(3) of Section 11. The second proviso to sub-section (3) of Section 11 can have no application as the building is a residential building. In short we do not find any illegality, irregularity or impropriety about the order of eviction passed. 7. Revision fails and will stand dismissed. However, considering the fervent appeal of learned counsel for the revision petitioner for granting time we grant the revision petitioner time till 30-6-2012 to surrender. This is however, subject to the condition that the revision petitioner shall file an affidavit before the execution court within four months from today undertaking to give peaceful surrender of the building on or before 30th June, 2012. It shall be undertaken through the affidavit that arrears of rent as found by the statutory authorities will be paid within four months from today. She will also be undertaken that occupational charges at the rate of rent found by the RCR. 411/11 -13- statutory authorities will be paid till actual surrender is given. We make it clear that the revision petitioner will get time as allowed above only if she files the affidavit and honours the undertakings therein. It is clarified that the revision petitioner will have four months time for getting the order of eviction passed under Section 11(2)(b) vacated by invoking Section 11(2)(c). (PIUS C.KURIAKOSE, JUDGE) (K. HARILAL, JUDGE) ksv/-