IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 RCRev..No. 490 of 2005(B) ------------------------ RCA.141/2003 of ADDL.DISTRICT COURT, KOZHIKODE RCP.53/1994 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/1ST RESPONDENT/PETITIONER. ------------------------------------------------------------------ KUNHAMMED KOYA, S/O. AHAMMED KOYA HAJI, AGED 66 YEARS, KUMMATTIL VEETTIL, NAGARAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN RESPONDENT(S): APPELLANT AND RESPONDENT/RESPONDENTS IN R.C.P. ------------------------------------------------------------- 1. M/S. NALLALAM SAW MILLS, A PARTNERSHIP FIRM SITUATED AT NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE. 2. MUNDOLI MAYAN, S/O. LATE KOYATTY, AGED 49 YEARS, TIMBER MERCHANT, RESIDING IN NAGARAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. 3. MUNDOLI MOIDEEN KOYA, S/O. KOYATTY, AGED 54 YEARS, TIMBER MERCHANT, RESIDING IN NAGARAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. 4. MUNDOLI ABDU RAHIMAN, S/O. MAYAN, AGED 68 YEARS, RESIDING IN NAGARAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. 5. KADEEJA BEEVI, W/O. LATE KOYATTI, AGED 74 YEARS, AMBALAVALLI HOUSE, NALLALAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. 6. UMMAYYA, D/O.KOYATTY, W/O.SIDDIQUE, AGED 49 YEARS, THIRURANGADI. (...2) RCR.490/05 2 7. AYISHA KUTTY, D/O.AHAMMED, AGED 34 YEARS, KODUVALLY, KOZHIKODE TALUK, KOZHIKODE. 8. SUHARABI, W/O.LATHEEF, AGED 29, KOZHIKODE TALUK, KOZHIKODE. ADV. SRI.V.R.KESAVA KAIMAL FOR R1 & 2 SRI.N.M.MADHU FOR R1 & 2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/08/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.490 of 2005 ---------------------------------- Dated this the 5th day of August, 2010 O R D E R ---------------- Pius C.Kuriakose,J. Under challenge in this revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is the judgment of the Rent Control Appellate Authority interfering with the order of the Rent Control Court and restoring the finding entered by the Land Tribunal to the effect that the lease in question is not a lease of the building, but is a lease of the land for the commercial purposes and that it is the respondent tenant who has put up the building. When the revision petitioner landlord sought to evict the respondent tenant under the provisions of Act 2/1965 on various grounds, a contention was raised by the respondent that he is not a building tenant but is a lessee of land. It was contended that as land was leased out for commercial purpose and as it is he who has put up the building for commercial purpose, he has got immunity from eviction. Noticing the above contention the Rent Control Court referred the question as to whether the respondent is entitled for the protection of Section 106 of RCR.490/05 2 the Kerala Land Reforms Act to the Land Tribunal. Before the Land Tribunal the respondent alone participated in the enquiry. Revision petitioner landlord did not participate in the enquiry despite several opportunities given. Belatedly the revision petitioner filed an application before the Land Tribunal offering some explanation as to why he did not participate in the enquiry earlier and seeking opportunity to participate in the enquiry. The Land Tribunal dismissed that application saying that findings have already been entered and the records have been transmitted to the Rent Control Court. By the time the findings were received by the Rent Control Court, a Division Bench of this court decided C.R.P No.1265/91 which is reported in Govinda Panicker Vs. Sreedhara Warrier (2000 (2) KLT 43) taking the view that the question whether a lessee is entitled to protection under Section 106, need not be referred to a Land Tribunal and that such question can be decided by the Rent Control Court or the civil court itself. The Rent Control Court, therefore, without incorporating the findings, which were sent to that court by the Land Tribunal, conducted further enquiry and concluded on the basis of further enquiry so conducted that the respondent is not entitled for the protection of Section 106 of the Kerala Land Reforms Act. Considering the RCR.490/05 3 merits of the eviction ground invoked it was found by the Rent Control Court that none of the grounds invoked was available to the landlord and accordingly eviction order was declined. Aggrieved by this, the respondent preferred an appeal to the Rent Control Appellate Authority urging that the Rent Control Court should have adopted the finding entered by Land Tribunal in the reference under Section 125(3). The learned Appellate Authority under the impugned judgment has noticed that the reference to the Land Tribunal was made on the basis of the directions contained in an order of remand passed by the Appellate Authority and hence the Rent Control Court was bound to adopt the finding entered by the Land Tribunal and has no jurisdiction to conduct independent enquiry into the question that was referred to Land Tribunal. The Appellate Authority considered the sustainability of the finding entered by the Land Tribunal and noticed that the landlord had not participated in the enquiry before the Land Tribunal. According to the Appellate Authority, when a party does not participate in the trial, the Land Tribunal has no option other than to take a decision on the basis of evidence which is available in the case. In that view of the matter what the Appellate Authority did was to set aside the decision of the Rent Control Court to the effect RCR.490/05 4 that the respondent is not a lessee entitled to protection under Section 106 and to restore the finding entered by Land Tribunal in the reference under Section 125(3). The Appellate Authority did not consider the evidence which was adduced by the party before the Rent Control Court regarding the claim under Section 106 of the Land Reforms Act, obviously taking the view that whatever evidence was permitted to be adduced on that issue has to be eschewed since Rent Control Court has no jurisdiction to come to an independent decision on the question as to whether the respondent is entitled to the protection of Section 106 of the Kerala Land Reforms Act. 2. In this revision under Section 20, the judgment of the Appellate Authority is assailed on various reasons. Sri.V.V.Surendran, learned counsel for the revision petitioner submitted that as the decision of the Rent Control Court was in the revision petitioner's favour, the revision petitioner did not get an opportunity to assail the finding of the Land Tribunal which is accepted for the first time by the Appellate Authority. According to Mr.Surendran, at any rate, the Appellate Authority could have, as a court of appeal sitting in appeal over the Land Tribunal's finding also, examined the issue afresh on the basis of the entirety of the evidence recorded before the Land Tribunal RCR.490/05 5 and before the Rent Control Court. Reliance was placed by Mr.Surendran on the judgment of this court in Govinda Panicker Vs. Sreedhara Warrier (cited supra). 3. All the submissions of Mr.Surendran were resisted by Mr.N.M.Madhu, learned counsel for the respondents. According to Mr.Madhu, even if it is conceded that the judgment in Govinda Panicker Vs. Sreedhara Warrier brings forth an amendment, the same is in procedural law only. Unless otherwise expressed amendments of procedural law are to be taken as prospective only. That being so, the decision cannot have any application to the present case where the reference has already been made. Mr.Madhu referred to paragraph 22 of the judgment in Govinda Panicker's case and submitted that the judgment itself provides that the decision does not pertain to cases where reference is already made. Mr.Madhu submitted on the authority of a decision of the Karnataka High Court in T.H.Yashawanta and others Vs. T.J.Jagadeesh and others (ILR 1999 KAR 2924) that whatever evidence was adduced before the Rent Control Court after that court received findings of the Land Tribunal was recorded by that court without jurisdiction and hence ought to have been eschewed from consideration. RCR.490/05 6 3. We have anxiously considered the rival submissions addressed at the bar. We have scanned the judgment of the Appellate Authority. What we notice is that after taking the view that the enquiry conducted by the Rent Control Court in the context of the issue under Section 106 of the Land Reforms Act was improper, the learned Appellate Authority has completely discarded the materials brought out in such enquiry and has proceeded to examine the justifiability of the Land Tribunal's action in entering a finding in favour of the respondent on the basis of the evidence adduced before it by the respondent only. It appears that the argument which was addressed before us by Mr.Madhu that the entire evidence which was recorded by the Rent Control Court in the context of Section 106 after receipt of the findings entered by the Land Tribunal is liable to be eschewed, found favour with the Appellate Authority. This must be why the Appellate Authority has not at all considered such evidence before approving the finding of the Land Tribunal. It is true that under Section 125(5) the finding entered by the Land Tribunal is binding on the referring court. But under Section 125(6) for the purposes of the appeal, the finding of the Land Tribunal is to be deemed as part of the finding of the court. In other words, the Appellate Authority had appellate powers in full RCR.490/05 7 over the finding of the Land Tribunal also. The argument of Mr.Madhu that the entire evidence which is recorded by the Land Tribunal after findings were received from the Rent Control Court is to be eschewed as being evidence recorded without jurisdiction is too tumultuous to receive acceptance. In the instant case the RCP was instituted seeking eviction on various grounds. We notice that the Land Tribunal adduced evidence not only in the context of issue under Section 106 of KLR Act but also in the context of grounds which have been invoked for evicting the tenants. As far as the merits of the eviction ground invoked are concerned, the Rent Control Court alone was having jurisdiction. It is a matter of common knowledge that even when tenancy issues are referred to Land Tribunal by civil courts and findings are received in favour by one party, the parties have to be permitted to adduce evidence on all issues including the issue which was referred. This is for the purpose of enabling the court of appeal to reappraise the entire evidence, i.e. the evidence adduced before Land Tribunal and Rent Control Court, so that the court of appeal can come to a proper decision. Following passage in paragraph 22 of the judgment of the Division Bench in Govinda Panicker's case is important. RCR.490/05 8 “The appellate Court which has all the powers of the trial Court in view of S.107 of the Code, can decide that question on the evidence made available either before the trial Court or before the Land Tribunal which forms part of the records returned from the Land Tribunal and decide for itself the question whether the claim under S.106 of the Act has been made out.” We are therefore of the view that the Appellate Authority was at any rate bound as the Appellate Authority under Section 18 to take a decision as to whether the tenant is entitled for protection under Section 106 evaluating evidence before the Land Tribunal and the evidence before the Rent Control Court. According to us, being Appellate Authority under Section 18 of Act 2 of 1965, which has power co-equal with Rent Control Court in the matter of adduction of evidence, the Appellate Authority has power to permit adduction of evidence if parties are desirous. We are of the view that the Appellate Authority in this case has not discharged its appellate powers under Section 18. 4. We also notice that for the premises involved in this case which takes in about 30 cents of land within the area of Kozhikode Corporation, the rent which is being paid by the respondent is just Rs.200/- per mensem. Whether it be rent for the land or for the building, it is very clear to our mind that what RCR.490/05 9 is being paid by the respondent now is ridiculously low. The proviso to Section 106 of the Kerala Land Reforms Act provides that the tenant who is entitled to immunity from eviction by virtue of Section 106 is liable to pay rent revised every 12 years. But revision of rent in the case of tenants who are really entitled for protection under Section 106 may have to be done by the Land Tribunal. The question whether respondent is entitled to the protection of Section 106 is yet to be decided in the case. The final decision may be late to come. Hence we feel that subject to final decision by the competent court, the rent payable by the respondent to the revision petitioner should be fixed prospectively with effect from 1.9.2010 at Rs.1000/- (Rupees One thousand only) per mensem. It is accordingly fixed. Result of the above discussion is as follows: The judgment of the Appellate Authority is set aside. R.C.A No. 141/2003 is remanded to the Rent Control Appellate Authority, Kozhikode. That authority is directed to take fresh decision as to whether the respondent is entitled to protection of Section 106 of the Land Reforms Act on the basis of the evidence which was available before the Land Tribunal and which was adduced before the Rent Control Court. If parties are RCR.490/05 10 desirous, they may be permitted to adduce further evidence also. The parties will enter appearance before the Appellate Authority on 5.9.2010. The Appellate Authority is directed to complete the enquiry and pass revised judgment at any rate within six months of parties entering appearance. The rent payable by the respondent to the revision petitioner is fixed prospectively with effect from 1.9.2010 at Rs.1,000/- per mensem. The above fixation of rent is subject to regular fixation by the competent court at the appropriate time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb