IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 RCRev..No. 49 of 2007() ----------------------- RCA.17/2004 of RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA RCP.7/2001 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... REVISION PETITIONER/COUNTER PETITIONER :- ---------------------------------------------------------------------- NIZA, W/O.SALIM, AGED 33 YEARS, KAMBIVALAPPIL, KAKKAZHAM MURI, AMBALAPPUZHA VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.PRAKASH P.GEORGE RESPONDENT(S)/APPELLANT/PETITIONER :- --------------------------------------------------------------- K. MANGALAMMA, W/O.SUBRAMONYAN, MANGALA BHAVANAM, SAKTHIKULANGARA VILLAGE, KOLLAM. ADV. SMT.ELIZABETH MATHEW IDICULLA FOR R1 SRI.MOHAN IDICULLA ABRAHAM FOR R1 SRI.MARTIN D.ALUMKARA FOR R1 SMT.PUSHPY B.MURICKEN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.49 of 2007 ------------------------------ Dated this the 15th day of December 2010 O R D E R Pius C. Kuriakose, J. Under challenge in this revision filed under Section 20 is the judgment of the Rent Control Appellate Authority allowing the rent control appeal holding that there is no bonafide denial of landlady’s title after reversing the finding of the Rent Control Court. The landlady sought to evict the tenant invoking the grounds of arrears of rent and additional accommodation. According to the landlady, she is the owner of the building as per Ext.A1 Sale Deed and the tenant (the respondent in the RCP) is now in a possession of the building on the basis of a Rent Deed dated 30.7.1999 (Ext.A5). The tenant’s defence was that Ext.A1 is not a valid document as the same was executed by the tenant’s husband one Mr.Salim as security for a loan which Salim contracted from R.C.R. No.49 of 2007 -: 2 :- the landlord. The tenant denied the existence of any landlord- tenant relationship between the parties. The Rent Control Court found answering a preliminary point that the denial of title raised by the tenant is bonafide. In the enquiry conducted by the Court on a preliminary point raised by the Court the landlady was examined as PW1, the documents Exts.A1 to A8 were marked. Absolutely no counter evidence was adduced on behalf of the tenant. It appears that in her oral evidence PW1, the landlady admitted that even before the execution of Ext.A1 a sum of Rs.30,000/- was paid to Mr.Salim by the landlady. Relying mainly on that admission the learned Rent Control Court came to the conclusion that the denial of title is bonafide and that the court has no jurisdication to proceed with the matter. 2. The landlady preferred an appeal which was decided by the learned Rent Control Appellate Authority by the impugned judgment in favour of the landlady. The Appellate Authority reversed the order of the Rent Control Court mainly on the reason that in order that a tenant is R.C.R. No.49 of 2007 -: 3 :- permitted to raise a pleading of denial of title as contemplated under Sub section (3) of Section 11, it is necessary that the tenant should admit his status to be that of a building tenant. According to the Appellate Authority, in the present case where the tenant’s contention is that he is the absolute owner, Section 11(1) cannot have any application. Though the learned Appellate Authority does not refer to decisions, the learned Appellate Authority appears to have relied on the judgment in Charulatha v. Manju [2004(1) KLT 290] which was pronounced by one among us Sri.PCK (J). But we notice the judgment of the Full Bench in Parthakumar v. Ajith Viswanathan [2006(2) KLT 250 (F.B)] wherein the Full Bench after overruling the judgment in Charulatha v. Manju held that in order that the respondent in an RCP is allowed to raise the plea of denial of title as contemplated under Section 11(1), it is not necessary for the respondent to admit his status to be that of the tenant. It is sufficient that the landlord alleges the status of the respondent to be that of tenant. When the ratio of judgment of Full Bench in Parthakumar v. R.C.R. No.49 of 2007 -: 4 :- Ajith Viswanathan is considered, it will have to be held that the learned Appellate Authority was in error and that the judgment of the Appellate Authority warrants interference. At the same time, we noticed that the order written by the Rent Control Court is far from satisfactory. The learned Rent Control Court was expected to decide whether the denial of title raised by the tenant is a bonafide one. It appears that the learned Rent Control Court was concerned more with the question of title over the building which the landlady had claimed by virtue of Ext.A1. It is highlighted by various decisions that the Rent Control Court has to be concerned with the existence or otherwise of a landlord-tenant relationship between the parties. In the instant case, it was relying on Ext.A5 Rent Deed that the landlord claimed that there is landlord-tenant relationship between the parties. The only evidence before the Rent Control Court in respect of the landlord-tenant relationship apart from Ext.A5 was the oral evidence of PW1 to which we noticed that absolutely there was no counter evidence. It was obligatory on the part of the R.C.R. No.49 of 2007 -: 5 :- Rent Control Court to decide whether the landlord-tenant relationship claimed by the landlady on the basis of Ext.A5 stood established on the basis of the evidence adduced in the case. As that has not been done, we are not deciding the issue finally. The result of the above discussion therefore, will be as follows :- The judgment of the Rent Control Appellate Authority and the order passed by the Rent Control Court are set aside. The RCP is remanded to the Rent Control Court, Alappuzha. That court is directed to decide the question whether there exists a landlord-tenant relationship between the parties in the Rent Control Petition. A decision will be taken on the basis of evidence already on record and further evidence, if any, to be adduced by the parties before the Rent Control Court. The Rent Control Court should remember that the essential question to be considered is whether the denial of title (denial of title of petitioner in the RCP as landlord) is a bonafide one. While deciding that question principles laid down by the decision in Aboobacker v. Girija [1995(1) KLT R.C.R. No.49 of 2007 -: 6 :- 553] should be kept in mind. It should be remembered that in order that the plea of denial of title is upheld by the Rent Control Court, the Court should be convinced that there are sufficient material in support of the plea of the petitioner and chances of the plea being upheld by the civil court are fairly on the high side. The parties are directed to appear before the Rent Control Court on 3.1.2011. That court is directed to complete the enquiry and pass revised orders on the preliminary question, at the earliest, and at any rate, within six weeks from the parties entering appearance. This RCR is thus allowed by way of remand. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt