Kerala High Court
Cheladimeethal Madhavan vs K.Firoz on 22 January, 2009
Author: Pius.C.Kuriakose
Bench: Pius C.Kuriakose, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 18 of 2009()
1. CHELADIMEETHAL MADHAVAN,
... Petitioner
Vs
1. K.FIROZ, S/O.NAFEESABEEVI, FIRES MAHAL
... Respondent
2. ANEESH, SHOP NO.3/543, NADAKKAVU CROSS
3. BALAN, SHOP NO.3/543, NADAKKAVU CROSS
For Petitioner :SRI.J.OM PRAKASH
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/01/2009
O R D E R
PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ.
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R.C.R.No.18 OF 2009
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Dated this the 22nd day of January, 2009
ORDER
Pius.C.Kuriakose, J.
A tenant against whom order of eviction has been passed by the rent control court and the appellate authority concurrently on the ground under Section 11(3) is the petitioner in this revision petition filed under section 20 of the Kerala Building (Lease and Rent Control) Act ( Act 2 of 1965). The landlord sought eviction on the grounds under Section 11(2)(b) and under section 11(2)(i) also. It is submitted by Sri.J.Omprakash, learned counsel for the revision petitioner and Sri.P.Sanjay learned counsel who had lodged a caveat on behalf of the respondent landlord that the other two grounds no longer survive and that we need only be concerned with order of eviction passed on the ground under Section 11(3).
2. Landlord's case in the context of the ground under Section 11(3) was that he is a returnee from gulf and that he is presently without any job or avocation for life and that he bonafide needs the schedule building so that he can do business therein in partnership with RCR.No.18/09 2 his brother who had filed another rent control petition for evicting his tenant occupying the adjacent room [ we are informed that final order of eviction has been passed against the other tenant on the basis of he application submitted by the brother of the present landlord]. The landlord's case was resisted by the revision petitioner on all possible grounds. One of the contentions raised was that the mother of the landlord had in 2002 filed RCP No. 117/02 against the revision petitioner invoking the ground under Section 11(2) and 11(3). The case of the then landlady in that RCP was that she wants possession of this building for accommodating her dependent son, the present landlord. That RCP was dismissed by the rent control court on 23-10-2003 as not pressed. The decision in that RCP should lead to the rejection of the present RCP in view of the provisions in Section 15 of Act 2 of 1965.
3. The rent control court did not specifically consider the defence based on Section 15. But on evaluating the evidence adduced by the parties and considering the contentions which were pursued by the parties at trial and also at the time of arguments, it was held that the RCR.No.18/09 3 petition is to be allowed under Section 11(3). The appellate authority in the appeal preferred by the revision petitioner referred to the argument based under Section 15 and would discard that argument observing that the concern of the court in the present proceedings is to decide whether the need projected in the present RCP is bonafide. The appellate authority confirmed all the other conclusions of the rent control court.
4. We have heard the submissions of Sri.J.Omprakash, learned counsel for the revision petitioners and those of Sri.P.Sanjay, learned counsel for the caveator-landlord. Even though Sri.J.Omprakash addressed arguments on all the grounds raised in the revision petition, He gave more thrust to the argument based under Section 15. He drew our attention to Section 15 of the Rent Control Act. He placed before us a copy of the rent control petition in the prevision RCP filed by the mother and the present RCP. He also placed before us a copy of the order dated 23/10/2003 passed by the rent control court in the RCP filed by the mother. He complained that the rent control court had not adverted to the contention based on Section 15. He submitted that the RCR.No.18/09 4 appellate authority has also not seriously considered the argument and has virtually refused to consider the argument saying that it is concerned only with the genuineness of the need projected in the rent control petition.
5. Sri.P.Sanjay, learned counsel for the respondent caveator would submit that the contention based on Section 15 was not pursued by the revision petitioner before the rent control court. Before the appellate authority also, the above contention was raised as only one of the arguments. There has been change of circumstances which would justify the maintenance of the present rent control petition despite the apparent decision taken in the previous RCP filed by the mother. The said decision did not go into the merits of the claim at all submitted, counsel.
6. We have anxiously considered the rival submissions addressed at the Bar in the light of Section 15 of Act 2 of 1965 and various judicial precedents which have been rendered by this court in the context of that section. It is true that it is substantially the same ground which has been raised in this RCP as was raised by the mother RCR.No.18/09 5 of the respondent in the previous RCP. But that is not enough. Obviously, there has been change of circumstances. The mother's need was to accommodate her dependent son, who had no ownership on the building at that time and was unemployed, so that her son can start business in the building and thereby ekes out a living. That RCP was not enquired into and was dismissed as not pressed. Obviously, the mother's decision not pursue that RCP was taken in the light of her decision to transfer absolute ownership over the building in favour of her son, hoping that by doing so, the son will be able to accomplish the need of doing business in the building more easily and quickly. It is not disputed that consequent on the dismissal of the previous RCP, the mother conveyed absolute ownership of the building in favour of her son. The present RCP is filed only after the waiting period of one year provided under the 3rd proviso to Section 11(3) was over. Even if it is assumed that the order dismissing the previous RCP on the basis that the same is not pressed by the mother amounts to deciding that RCP finally, then also the present RCP will not be rejected under Section 15. The bar under Section 15 entails a summary rejection of the RCP. RCR.No.18/09 6 Summary rejection means rejection even before the merits of the claim for eviction is enquired into. If the revision petitioner was serious about the liability of the present RCP to be rejected under Section 15, he should have seriously sought for an early consideration of the implications of Section 15 in this case, before the rent control court itself. It has not been done. We are sure that no serious arguments were even addressed before the rent control court in the context of Section 15.
7. It is not as though in all cases where substantially the same ground has been decided against the landlord that the fresh RCP will become liable to be rejected at the threshold. It is always possible for the landlord to maintain a fresh RCP substantially on the same ground on change of circumstances.
8. Sri.J.Omprakash argued that change of circumstances which are sufficient to maintain a subsequent RCP despite Section 15, should not be circumstances of the landlord's own making. Not that we do not find any force at all in the above submission: however, in this particular case where the original landlady, who is a very old woman, thought that RCR.No.18/09 7 her essential need that her son who is without employment should carry on his own business in the building could be accomplished better and more effectively and easily by conveying ownership to him and the son applies for eviction on the strength of the assignment deed executed by the mother after waiting a period of one year, we are not prepared to agree that the very transfer is effected with the objective of bye-passing the bar under Section 15. True, the rent control appellate authority dealt with the argument of the revision petitioner raised in the context of Section 15 in a rather casual and cursory manner. But according to us, even if the above argument had been considered by the rent control appellate authority in more depth, the arguments would only have been repelled.
9. The result is that we do not find any warrant for invoking the revisional jurisdiction under Section 20 of Act 2 of 1965 in respect of the concurrent orders of eviction passed under Section 11(3).
10. Sri.J.Omprakash would request for grant of one year's time to vacate the premises. Sri.P.Sanjay opposes the request teeth and nail. It is seen that the tenancy is about 50 years old. The respondent RCR.No.18/09 8 landlord had been trying to secure eviction of this room for accomplishing his need of doing business for quite a long time now. However, in deference to the request of the learned counsel for the petitioner, we are inclined to grant 7 = month's time from today subject to certain conditions.
The result is that the revision petition will stand dismissed. The execution proceedings will be put off by the execution court till 07/09/2009 on condition that the revision petitioner files an affidavit before the execution court undertaking to surrender the petition schedule building peacefully to the respondent and undertaking further to discharge arrears of rent, if any, in respect of the building and also to pay the rent which falls due subsequently till the date of surrender. The affidavit as directed above shall be filed by the revision petitioner within ten days from today. Once the execution court notices such an affidavit, that court will adjourn the execution petition to 07/09/2009.
PIUS.C.KURIAKOSE, JUDGE M.C.HARI RANI, JUDGE RCR.No.18/09 9 sv.