Kerala High Court
M.A. Ibrahim, Son Of Abdul Rahiman Of ... vs Treesa Poulose, Wife Of Choolakkal ... on 25 March, 2003
Equivalent citations: 2003 A I H C 2890, (2003) 2 RENCR 522
ORDER Cyriac Joseph, J.
1. This revision petition arises from R.C.P.No. 11 of 1989 of the file of the Rent Control Court, Aluva. The Revision petitioner is the tenant and the respondent in the R.C.P. The respondent is the landlady and the petitioner in the R.C.P.
2. The landlady filed R.C.P.No. 11 of 1989 in the Rent Control Court, Aluva under Section 11(2)(b) and 11(3) of the Kerala Buildings (lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') seeking to evict the tenant from the petition schedule building. The Rent Control Court allowed the petition both under Sections 11(2)(b) and 11(3) of the Act. Against the order of the Rent Control Court the tenant filed appeal R.C.A.No. 5 of 1994 in the Court of the Rent Control Appellate Authority, N orth Paravur. As per its judgment dated 8th January, 1996 the Appellate Authority dismissed the appeal holding that the order of the Rent Control Court directing eviction of the appellant from the petition schedule room under Sections 11(2)(b) and 11(3) is sustainable in law on the facts of the case. Aggrieved by the judgment of the Appellate Authority the tenant has filed this revision petition.
3. Before the Rent Control Court the landlady contended that the petition schedule room belonged to her and that it was rented out to the respondent (revision petitioner) on a monthly rent of Rs. 300/- on 17.5.1986 as per the rent deed. The rent was to be paid on 17th of every calendar month and interest at the rate of 12% per annum was to be paid on arrears. However, after the rental arrangement not rent was paid by the tenant despite repeated demands and the legal notice issued on 24.2.1989. It was also contended that the petition schedule building was bona fide needed by the landlady for providing a separate residence for her son Roy who was dependent on the landlady. However, the tenant contended that there was no arrears of rent. The rent for the month of November, 1986 was sent by way of draft which was returned. The rent for the month of December, 1986 onwards was sent by Money Order, but it was also rejected. On 12.4.1987 in the presence of mediators an agreement was entered into between the landlady and the tenant wherein the landlady agreed to sell the petition schedule building along with the property to the tenant for a consideration of Rs. 1,84,000/-. The time limit for execution of the sale deed was six months from the date of the agreement. A sum of Rs. 40,000/- was paid by the tenant to the son of the landlady in two instalments towards sale consideration. On the date of agreement the dispute which existed regarding the non payment of rent was also settled. Since the tenant was ready and willing to obtain the sale deed after paying the entire balance he was not liable to pay any arrears of rent. It was also contended by the tenant that the need set up by the landlady was not bona fide. He further contended that no other building was available on rent in the locality.
3. The Rent Control Court found that the tenant had not paid rent from the month of May, 1986 onwards. The Rent Control Court also held that under the cover of an alleged agreement for sale the tenant had no right to say that the landlord-tenant relationship ceased to be in existence. According to the Rent Control Court, if the tenant had entered into such an agreement for sale with the landlady and if the landlady did not perform her part of the agreement he should approach the civil court with a suit for specific performance. Hence the trial court did not accept the contention of the tenant that the understanding between the parties was that no rent need be paid after the date of the alleged agreement. The Rent Control Court also noted that P.W.1, the son of the landlady for whom the building was sought to be evicted, outrightly denied any understanding between the parties that no rent need be paid after the date of the agreement. The Rent Control Court referred to the deposition of C.P.W.2 who is stated to be a mediator and a friend of both the landlady and the tenant. C.W.P.2 had clearly stated that even though the parties had entered into an oral agreement, the tenant was bound to pay rent till the date of execution of the sale deed as per the terms of the agreement. C.P.W.2 had further stated that as per the terms of the oral agreement if the tenant failed to execute the sale deed within the time stipulated (i.e. six months from 12.4.1987) the tenant was bound to vacate the petition schedule building. C.P.W.2 had also stated that it was due to the violation of the terms of the agreement by the tenant that the sale deed was not executed and that the tenant had not aid the rent also. According to the Rent Control Court the above deposition of the tenant's own witness proved the case of the landlady that rent was due from the including the month of May 1986 onwards at the rate of Rs. 300/- per month. Relying on a judgment of the High Court in Hirja Umma v. Razack (1991 (2) KLT 700) the Rent Control Court held that the court can ignore the agreement stated to have been entered into between the parties as long as the landlord-tenant relationship is continuing. Thus it was held that the landlady was entitled to get an order of eviction under Section 11(2)(b) of the Act.
4. The landlady had sought eviction of the tenant also under Section 11(3) of the Act. The need set up by the landlady was the need for a separate residence for her son Roy who was about to be married at the time of filing the petition. The petition was filed on 12.6.1989. During the pendency of the case the said Roy got married and a child also was born. Mr. Roy along with his younger brother was staying with the landlady. The younger brother tendered evidence as C.P.W.3. He deposed that his marriage also would be conducted very shortly. According to the evidence tendered by Mr. Roy (P.W.1) the space available in their residential building is not sufficient for accommodating him and his wife, child, mother and brother. The younger brother was nearly 30 years old and his marriage also was to be conducted soon. After analysing and appreciating the evidence in there case the Rent Control Court came to the conclusion that the landlady was in bona fide need of the petition schedule building for giving separate residence to her son and his family.
5. Hence the R.C.P. was allowed by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act.
6. Before the appellate authority the tenant contended that there was an agreement between the parties, wherein the landlady had agreed to sell the petition schedule building to the tenant and that the tenant was still ready and willing to perform his part of the agreement and hence the Rent Control Court ought to have raised a preliminary point under the second proviso to Sub-section (1) of Section 11 regarding the bona fides of the claim made by the tenant. It was further contended that since such a preliminary point was not raised and considered, the findings of the Rent Control Court under Section 11(2)(b) and 11(3) of the Act were void. However, the Appellate Authority found that the second proviso to Section 11(1) of the Act was applicable only where the tenant denied the title of the landlord. According to the Appellate Authority in this case the title of the landlady was not at all denied by the tenant. In fact, the appellant was affirming the title of the landlady by saying that an agreement for sale of the property was made between himself and the landlady and under the said agreement some amount was paid as advance by him and that he was ready and willing to pay the balance and obtain the sale deed in his favour. According to the Appellate Authority the sale deed is yet to be executed and hence the title over the petition schedule building continues to be with the landlady. The Appellate Authority has also pointed out that even after the alleged agreement the tenant was continuing as a tenant enjoying all the protection of the Act. In such circumstances the Appellate Authority found that the Rent Control Court had not committed any procedural irregularity in entering into the findings under Section 11(2)(b) and 11(3) without raising a preliminary point under the second proviso to Section 11(1) and considering the same.
7. Having regard to the facts and circumstances of the case we are inclined to agree with the Appellate Authority that the tenant had not denied the title of the landlady and hence the Rent Control Court was not called upon to decide whether the denial of title of the landlady was bona fide or not. It is true that in his reply the tenant had stated that thee was no landlord-tenant relationship between the parties. In our view, the denial of landlord-tenant relationship is different from denial of the title of the landlord. Unless the respondent in the R.C.P. denied the title of the petitioner as landlord the second proviso to Section 11(1) will not be attracted. In this case thee was no such denial of title of the landlady by the tenant. Even assuming that the denial of landlord-tenant relationship amounted to denial of title of the landlord by the tenant, in the facts and circumstances of the case we have no hesitation to hold that the said denial was not bona fide. The evidence in the case shows that the tenant had agreed to pay rent even after the date of agreement for sale and till the sale deed is executed. The tenant's witness (C.P.W.2) has stated that even after the agreement for sale the tenant was expected to continue to pay rent and that if sale could not take place the tenant would vacate the building. In the cross examination R.W.1 (tenant) himself had admitted that he did not take any steps for six years to get the sale deed executed. No reason also was stated for not taking steps in the matter. Hence even the alleged denial of title of the landlord by the tenant was not bona fide.
8. We do not find any reason to interfere with the concurrent findings of the Rent Control Court and the Appellate Authority under Sections 11(2)(b) and 11(3) of the Act. Both the courts have found that rent at the rate of Rs. 300/- per month was in arrears from the month of may, 1986. Both the courts have held that the petition schedule building was bona fide required by the landlady for providing a separate residence for her son. We find that the above findings of the courts below are supported by the evidence in the case and that the conclusions reached by the courts below are perfectly legal and valid.
9. In the above circumstances there is no merit in the revision petition. The revision petition is accordingly dismissed.