Kerala High Court
Bharathi And Ors. vs Vinod S. Sivasudha on 3 October, 2007
Equivalent citations: AIR2008KER125, AIR 2008 KERALA 125, (2008) 63 ALLINDCAS 735 (KER), 2008 (63) ALLINDCAS 735, ILR(KER) 2007 (4) KER 668, (2008) 1 RENTLR 288, (2008) 1 KER LT 93, (2008) 2 RENCR 13
Author: J.B. Koshy
Bench: J.B. Koshy, A.K. Basheer, K.P. Balachandran
JUDGMENT J.B. Koshy, J.
1. Opining that the dicta laid down in Parthakumar v. Ajith Viswanathan 2006 (2) KLT 250 : 2006 AIHCC 2161 (FB) and in Narayan Murti v. Thankamma Sebastian 2005 (3) KLT 102 (DB) are manifestly at variance regarding interpretation of second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) for short 'the Act' a Division Bench of this Court referred this matter to the Full Bench. Section 11(1) and second proviso to Section 11(1) of the Act reads as follows:
11. Eviction of tenants:--(1) Notwlth-standing anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act:
xx xx xx xx Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
2. The Full Bench in Parthakumar's case 2006 AIHC 2161 held that existence of landlord-tenant relationship is inevitable for the special tribunal to exercise its jurisdiction. Once the Rent Control Court is satisfied that the contention regarding denial of title or claim for permanent tenancy is bona fide, the claims regarding title has to be decided finally by the civil Court. That is a zone or area where civil Court must entertain jurisdiction. The Full Bench also held that proprietary title of the person claiming eviction is irrelevant to decide the jurisdiction. The Full Bench held as follows:
16. ...The Special Tribunals are constituted only to resolve the limited disputes relating to eviction falling under Section 11 of the Act. Existence of landlord-tenant relationship between the contestants is sine qua non for Sections 11(2) to 11(8) to operate and for the Special Tribunals to have jurisdiction. Only when the landlord--tenant relationship in respect of the building exists, does and can the Special Tribunal have jurisdiction to consider a claim for eviction. Summary and expeditious procedure is prescribed for eviction only in cases where the landlord-tenant relationship exists and the dispute regarding eviction is between the landlord and the tenant. Existence of landlord-tenant relationship between the claimant/landlord and respondent/tenant is thus essential, to confer jurisdiction on the Rent Control Authorities.
18. The legislature was conscious of the fact that there could be disputes as to whether there exists landlord-tenant relationship. A person who is proceeded against as a tenant may have to raise a contention that there is no landlord-tenant relationship and that he is not a tenant. The landlord claiming eviction must have title to evict. If he has no title to evict and such a contention is raised, the jurisdiction to decide that dispute rightly vests in civil Courts following exhaustive procedure and not in the Special Tribunals constituted to decide a limited category of disputes following summary procedure. Therefore, where existence of landlord-tenant relationship, i.e., title of the landlord to claim eviction against the person proceeded against, is itself seriously disputed, certainly the Special Tribunals must take their hands off the dispute and leave the parties to resolve their disputes before the regular civil Courts constituted. The Tribunals following summary procedures cannot usurp the powers and jurisdiction of the civil Courts to decide such disputes regarding title. Such substantial disputes regarding title are uplands and out of bounds for the statutory special tribunals. That is the zone or area where the civil Court must entertain jurisdiction. Therefore, when certain categories of disputes arise between the contestants about the very title of the landlord to claim eviction against the persons proceed against under Section 11 such disputes must certainly be decided by the regular civil Courts.
The Full Bench, again, held at paragraph 22 as follows:
22. What then is the title of the landlord contemplated under the second proviso to Section 11(1) of the Act. Title, it is trite, is the sum total or the bundle of rights in respect of property. The paramount title of the landlord is absolutely irrelevant for the purpose of a claim under Section 11. His title as the landlord alone is relevant in a dispute under Section 11 of the Act. Is he the landlord of the person proceeded against? If he is, he has the requisite title to sustain the claim for eviction under Section 11. He may be only a mortgagee or a lessee who had leased/sub-leased the building. A denial of paramount title is, in these circumstances, irrelevant if the person proceeded against is the tenant and the person making the claim is the landlord. Proprietary title of the person claiming eviction is thus irrelevant and the denial contemplated under Section 11(1) of the Act could never have been the denial of paramount, or proprietary title. The denial of paramount title may in a given case include the denial of title as landlord also. Such title as landlord alone is essential to sustain a claim for eviction under Section 11(1) of the Act. All that we intend to take note is that the denial of paramount or proprietary title is irrelevant and that is not the precise denial of title contemplated under the second proviso to Section 11(1) of the Act. The denial of title as landlord alone is relevant. So wherever there is a denial of the right of the landlord to claim eviction on the ground that he is not the landlord of the person proceeded against, such denial must certainly be reckoned as denial of title of the landlord as contemplated under Section 11(1) of the Act. In short, we are of opinion that denial of landlord-tenant relationship between the claimant/landlord so-called and the respondent/tenant so-called is the denial of title which alone is contemplated under the second proviso to Section 11(1). If there is admission of such title, the Rent Control Court certainly has jurisdiction to proceed. If that is in dispute, second proviso to Section 11(1) comes into play.
Again, it was observed as follows at paragraph 28:
28. The legislature therefore felt that only bona fide denial of title or a bona fide claim for permanent tenancy should alone divest the Special Tribunals of their jurisdiction under Section 11 of the Act. It is hence stipulated that the denial of title/claim for permanent tenancy must be bona fide. The Tribunal's jurisdiction is only to decide whether the denial of title or claim for permanent tenancy is bona fide. It is not expected to and does not have the jurisdictional competence to enter a finding whether the denial of title is valid or not. It has only jurisdiction to decide whether the denial of title is bona fide or not. If it is bona fide, the landlord can sue for eviction before the civil Court.
It was observed as follows at Paragraph 39:
39. To give proper meaning, effect and content to Section 11(1) of the Act and its provisos the expression 'the tenant' must include the person sought to be proceeded against as a tenant just as a landlord whose title is validly disputed must be reckoned as landlord for the purpose of those provisions. We lord for the purpose of those provisions. We are unable to accept the contention that the expression 'the tenant' used in the second proviso to Section 11(1) of the Act must convey that he must be a tenant either admitted or proved. A person proceeded against as tenant who wants to contend that he is not a tenant at all under the claimant/landlord. or any other is raising a dispute between him and the claimant and must hence be reckoned as a tenant denying the title of the landlord. If bona fide, the said plea is sufficient to divest the Rent Control Court of its jurisdiction.
In that case, Rent Control Court found that denial of title by the alleged tenants was bona fide. Additional documents were filed before the appellate authority. Appellate authority remanded the matter to consider those documents also and record a finding that whether dispute regarding denial of title is bona fide or not. The Full Bench did not interfere with the above order of remand.
3. In Narayan Murti's case denial of title was put forward only at the fag end of trial. It was held as follows:
31. The second proviso to Section 11(1) of the Act deals with denial of the title of the landlord and the claim of permanent tenancy. The expression 'title' is not defined in the Act. A mortgagee cannot claim paramount title and his title is only derivative. When the paramount title is admitted and derivative title is set up by tenant, it does not constitute the denial of title, when the landlord-tenant relationship is admitted. The tenant having admitted attornment and payment of rent to the landlord, even assuming that the tenant is a mortgagee in possession, he cannot contend that a Rent Control Petition against him is not maintainable. Such a contention would not amount to a denial of title within the meaning of the second proviso to Section 11(1) of the Act. The Rent Control Court is competent and has jurisdiction to decide the question whether there is a subsisting landlord-tenant relationship between the parties. All ancillary questions to arrive at a just decision on that issue, evidently comes within the jurisdiction of the Rent Control Court.
In that particular case, the Division Bench considered the matter, apart from the belated raising of pleadings regarding denial of title, it was found that the tenant was admitted attornment and payment of rent to the landlord. In such circumstances, landlord-tenant relationship cannot be questioned and denial of title by the tenant was held not bona fide. Application of second proviso and interpretation of the same cannot be diverted from the facts of each case. The Division Bench held that while considering the bona fides of the question regarding landlord-tenant relationship, whether such contention was bona fide or not, existence of the landlord-tenant relationship etc. can be looked into. If it is proved that the above contention is bona fide and there was actual landlord-tenant relationship, there is no necessity to relegate the matter to the civil Court. Merely by raising such a contention, the matter need not be relegated to the civil Court. The rent control Court is entitled and bound to decide the question whether alleged contention regarding denial of title consequent to absence of landlord-tenant relationship and claim of permanent tenancy is bona fide or not. For finding out bona fide of the claim, Rent Control Court only need look into the materials placed before it. Considering the reasonings of the dicta of Full Bench in Parthakumar's case (supra) and of the Division Bench in Narayan Murti's case (supra), we are of the opinion that there is no conflict. Dicta made in those two decisions are not at variance. Only application of the principle on the facts of those cases was different. We answer the required question accordingly. In view of the above answer, the question referred need not be referred again to the Full Bench opinion.
4. We also note that in Bhogadi Kannababu and Ors. v. Vuggina Pydamma and Ors. the Hon'ble Apex Court held that to decide whether relationship of landlord and tenant exists, the question of title to the properties in question may be incidentially gone into, but, cannot be decided finally in the eviction proceedings. If the contention that there is no relationship between the landlord and the tenant and the contention seems to be bona fide further question can be relegated to the civil Court. The same is the sum and substance of the decision of the Supreme Court in David Joseph Guido v. A.C. Fernandes .
5. Now, we may consider the application of the above section on the facts of this case. Predecessor of the respondent filed an application for eviction of the counter petitioner contending that the schedule building T.C. No. 13/121 was owned by him and it was taken by the counter petitioner for a monthly rent of Rs. 30/- from 1970 and has executed a rent deed dated 10-11-1970, Ext.A1 deed. Counter petitioner has committed default in payment of rent for the last seven years and he has no building of his own in the city and he wants the building for own use and, therefore, the rent control petition was filed. The counter petitioner alleged before the rent control Court that there is no landlord-tenant relationship between the petitioner and himself. It is also contended that Ext.A1 rent deed is not genuine and shall not be relied on. It is further contended that in an earlier rent control proceedings between the same parties, it was found that there is no landlord-tenant relationship and, therefore, the present petition filed is hit by res judicata and Section 15 of the Act. After consideration of the evidence, the Rent Control Court found that Ext.A2 deed is a genuine document. Present revision petitioner was examined as PW2 in a small cause suit filed by one Kanakamma and the very same rent deed executed by the counter petitioner in favour of the petitioner was produced in that case. As Ext.A4 the very same rent deed is marked as Ext.A1 and in view of the rent deed executed, it cannot be stated that there is no landlord-tenant relationship and no bona fide disputes are raised regarding title. However, on merit, the rent control Court found that bona fide need for own occupation was not proved and petition for eviction under Section 11(3) of the Act was dismissed, but, found that there was arrears of rent and eviction was ordered under Section 11(2)(b). The above order was upheld by the appellate authority. If the rent deed was genuine, there is landlord-tenant relationship and dispute regarding title has no bona fide. None of the observations in Parthakumar's case 2006 AIHC 2161 (supra) or Narayan Murti's case (supra) supports the contentions of the revision petitioners.
6. The real contention raised by the revision petitioners is that respondents claiming to be landlords cannot raise a contention that there is landlord-tenant relationship in view of Section 15 of the Act. Earlier, an eviction application was filed by the predecessor of the respondent, the original landlord as R.C.P. No. 41 of 1989. Ext.A1 deed was not marked by adducing evidence. The rent control Court in that case found that the landlord has got clear title over the property. Hence, denial of proprietary title is not bona fide, but, at the same time, it was also held that the petitioner failed to prove the landlord-tenant relationship. Since landlord-tenant relationship was not proved, the rent control petition was dismissed. That petition was also filed only under Section 11(2) and (3) of the Act. In appeal, the landlord tried to mark the present Ext.A1 deed by filing a petition. The appellate authority did not allow the landlord to produce the same as it was not produced before the rent control Court. Further, it was also observed that in the above alleged rent deed building number is mentioned as T.C. No. 12/71 whereas number of the petition schedule building is T.C. No. 13/121. Therefore, the appeal was dismissed after rejecting the petition to accept the rent deed as additional evidence as it was not marked in evidence before the Rent Controller and in view of the difference in the number of the building. The rent control Court in R.C.P. No. 41 of 1989 (previous petition between the same set of parties) even though found that the petitioner in that case though able to prove that there is title to the property, he failed to prove that there is existence of landlord-tenant relationship. Contention of the counter petitioner (present revision petitioner) that they have got kudikidappu right was also not accepted. But, after holding so, the rent control Court held as follows:
But, that by itself also will not prove the existence of landlord-tenant relationship. The alleged rent deed is not produced before Court. When the existence of a rent deed is alleged, it is with reference to that document that the question of tenancy has to be considered. At the argument stage a document purporting to be a rent deed is produced. But, that is executed in favour of one Kanakamma and not to the petitioner. To a suggestion to PW1 that the document relied on by him is a fabricated rent deed that too executed to one Kanakamma, the answer is an emphatic 'no'. PW1 does not even know who this Kanakamma is. It is admitted by him that earlier Kanakamma had filed a small cause suit for realisation of rental arrears from the counter petitioner and that in that case the petitioner was additional plaintiff. That suit is stated to have been dismissed. The alleged rent deed produced here is seen to have been produced in O.S. No. 137/75 also. The document is not proved. It is not even confronted to the counter petitioner when examined as CPW1. Even if the same is produced the petitioner can derive no benefit from that. Apart from the alleged rent deed, there is no evidence to prove payment of acceptance of rent. To a pointed question as to whether there is rental receipt evidencing payment of rent by the counter petitioner at any time, the answer of PW1 is that let the CP say that Ext.Al notice alleging the execution of a rent deed by CP was denied in Ext.A2 reply notice. There is no evidence to show that there is a rent deed executed by counter petitioner in favour of the petitioner as alleged. There is also no other evidence or circumstance to spell out landlord-tenant relationship. Point found against the petitioner.
10. Point Nos. (iii) to (v): It is only the landlord of a building who can seek to evict his tenant on any of the grounds mentioned in Section 11. Since no landlord tenant relationship is proved, these points do not arise and cannot be considered.
The rent control petition" was dismissed only on the ground that there was no existence of landlord-tenant relationship. In appeal proceedings, the above view was upheld. It was held by the appellate authority that dismissal of the application for purchase of kudikidappu right by the land tribunal will not establish that there was landlord-tenant relationship. The appellate authority held as follows:
Therefore, the dismissal of the OA will not establish that the respondent was put in possession of the building by the appellant as a monthly rent. Exts.A4 and A5 also do not establish the lease set up by the appellant. If that be so, there is absolutely no evidence to prove the existence of landlord/ tenant relationship.
Again, considering the present Ext.A1 rent deed relied on by the respondent (petitioner in the R.C.P.) it was held as follows:
Therefore, even if it is taken that the rent deed so produced is genuine, it does not relate to the petition schedule building and cannot be used. Whatever it be the Court below cannot be find fault for not perusing these documents which were produced in Court subsequent to the dismissal of the RCP. The appellant has not sought to receive those documents in evidence as additional evidence. Therefore, even if the documents are relevant, they cannot be relied on and cannot be accepted as additional evidence. Even if the documents are to be perused they do not help the appellant to prove that the respondent is the tenant of the petition schedule building. Therefore, I do not find any reason whatsoever to interfere with the order of the Court below.
7. It is the contention of the petitioner that the finding that there is no landlord-tenant relationship became final and the above finding will act as res judicata or at least constructive res judicata. Section 15 of the Act reads as follows:
15. Decisions which have become final not to be re-opened: The rent control Court shall summarily reject any application under Sub-section (2), (3), (4), (5), (7) or Sub-section (8) of Section 11 which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this Act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded by such law.
8. Here, the earlier application was under Section 11(2). The second application was filed under Section 11(2) and 11(3) of the Act and application under Section 11(3) was dismissed and only application under Section 11(2) was allowed. It is true that even if an application for arrears of rent is dismissed for a particular period, subsequent application can be filed for arrears of rent for another period. If issue decided in an earlier suit filed under Section 11(2) regarding landlord-tenant relationship that will bind on the petitioner in subsequent suit also. In Govindan v. Subaida Beevi , it was held that in the light of specific provision in Section 15 it has to be held that neither Section 11 of the Code of Civil Procedure nor the general principle of res judicata and constructive res judicata as such will have application to the proceedings under the Act. In that case, earlier application was filed under Section 11(3). Subsequent application was filed under Section 11(3) and 11(4)(iii). It was held that subsequent application under Section 11(4)(iii) cannot be rejected on the ground of res judicata and bar under Section 15 will not apply and Court observed as follows:
...Intention of the legislature in incorporating Section 15 of the Act seems to be to add a provision corresponding to Section 11 CPC in a modified manner and thus to make the statute a self contained one excluding impliedly the application of the corresponding provision contained in Section 11 CPC and the general principles of res judicata and constructive res judicata. If that was not the idea, the legislature could have very well included Section 11 CPC also as a provision in Section 23 of the Act along with the other provisions of the CPC included therein. As such in the light of the specific provisions in Section 15 of the Act it has to be held that neither Section 11 CPC nor the general principle of res judicata and constructive res judicata as such will have application to the proceedings under the Act. As a corollary it has also to be further held that in the matter of deciding the question whether an earlier decision rendered in an application filed under Sub-sections (2), (3), (4), (5), (7) or (8) of Section 11 of the Act and which has become final would bar a decision on merit of a later application under any of the said provisions, Section 15 alone will have application to the exclusion of all other provisions of law.
9. A reading of the earlier order of the rent controller and appellate Court would show that landlord-tenant relationship was not proved. Such a finding was entered after holding that dispute regarding denial of property title is not bona fide. Apart from the fact that rent deed was not proved by adducing evidence, there is no evidence that the alleged tenants ever paid rent. The appeal is rejected by the appellate authority. The contention of the present revision petitioner was that they never paid the rent as there was no application to pay rent and there was no landlord-tenant relationship. That was accepted by the earlier proceedings (R.C.P. No. 41 of 1989 and R.C.A. No. 36 of 1991). If that be so, even though no rent was paid, no case can be filed again under Section 11(2). The appellate authority's decision in R.C.P. No. 36 of 1991 became final as no revision application was filed. The above decision cannot be questioned in a subsequent rent control proceedings and will be binding on the parties. Basic principle of res judicata is that cause of action for the second suit being merged in the first suit, it does not survive any more as held by the Supreme Court in Satyadhyan Ghosal and Ors. v. Smt. Degrajin Debi and Anr. .
10. In this case, the landlord-tenant relationship is an issue directly and substantially arose between the same parties. Therefore, in the subsequent proceedings, earlier decision is binding. The Supreme Court in Sulochana Amma v. Narayanan Nair held that when the same issue is put in a later suit, earlier finding will be applicable. It is true that principle of res judicata is applicable only with regard to applications filed under the Rent Control Act only for the eviction petitions filed under Section 11(2), (3), (4), (5), (7) or (8). Hence, earlier application was filed under Section 11(2). The present application is also allowed under Section 11(2). The matter of res judicata and bar under Section 15 of the Act were specifically raised at the first instance itself. Res judicata is a rule of procedure and it cannot change the law of the land and it is not concerned with the question whether previous decision is right or wrong. A wrong decision rendered with jurisdiction if not corrected by appeal, revision review or other methods available by law will have such a binding force as a right decision. When the parties litigate in the same title, the earlier decision is clearly applicable in subsequent litigation.
11. When rent control petition is dismissed relegating the landlord to approach the civil Court, parties can raise all available pleas in the suit or proceedings as held by the Supreme Court in P.K. Vijayan v. Kamalakshi Amma and Ors. . Notwithstanding the finding with regard to the landlord tenant relationship by the rent control Court or title when parties are relegated to civil Court, the civil Court can decide the entire matter as decided by the Supreme Court in L.I.C. v. Indian Automobiles and Company and Ors. . In C.V. Rajendran and Anr. v. N.M. Muhammed Kunhi , it was held by the Supreme Court after considering Section 15 of the Kerala Act that the finding of the appellate authority at the earlier stage will be binding on the parties and it cannot be reagitated even at the subsequent stage of the petition.
12. In this case, earlier in R.C.P. No. 41 of 1989 even though it was found that the rent control petitioner had title to the property there was no landlord-tenant relationship with the counter petitioner and there is no obligation to pay rent and petition for arrears of rent was dismissed. The above was confirmed by the appellate authority R.C.A. No. 36 of 1991 rightly or wrongly. No revision application was filed and the above became final. In view of Section 15, we only hold that since, in the earlier proceedings under Section 11(2), it was held that there is no landlord-tenant relationship and no rent was paid, subsequent petition under Section 11(2) is barred. It is true that in an earlier small cause suit rent deed was accepted by the revision petitioner. Effect of the same has to be decided by the Civil Court.
13. All these matters can be agitated in the civil Court as final adjudication of the dispute has to be done by the civil Court and notwithstanding the earlier findings regarding title to the property and landlord-tenant relationship and arrears of rent. All the matters can be re-agitated in the civil Court.
14. Therefore, without prejudice to the right of the parties to approach the civil Court, we set aside the order of eviction passed under Section 11(2) as it is hit by the principles of res judicata adopted in Section 15 of the Kerala Buildings (Lease and Rent Control) Act. Hence, the R.C.R. is allowed.