Kerala High Court
K.Moideen Koya vs N.V.Avarankutty (Died) on 6 July, 1994
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938
CRP.No.413 of 1995 ( )
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AGAINST THE JUDGMENT IN RCA 24/1989 of
D.C. & SESSIONS COURT,KOZHIKODE DATED 06-07-1994
&
AGAINST THE ORDER IN RCP 199/1985
of PRL.M.C.,KOZHIKODE-II, DATED 17-11-1986
REVISION PETITIONER(S):
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1. K.MOIDEEN KOYA
S/O.BICHU MOIDEENKUTTY,
KOZHIKODE.
2. INDIAN COMMUNIST PARTY,
KADALUNDI BRANCH,
REPRESENTED BY ITS SECRETARY,
KADALUNDI AMSAM, PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
BY ADVS.ADV.RAJENDRAN PERUMBAVOOR
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
SRI.RENJITH THAMPAN (SR.)
SRI.M.V.ANANDAN
RESPONDENT(S):
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1. N.V.AVARANKUTTY (DIED), NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
2. FATHIMA, 67 YEARS, W/O.LATE N.V.AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
3. MUHAMMED BASHEER, 52 YEARS, S/O.LATE AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
:2:
CRP.No.413 of 1995
4. MEHABOOB, 49 YEARS,
S/O. LATE AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
5. SULAIKHA, 46 YEARS, D/O. LATE AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
6. KHADEEJA, 41 YEARS, D/O.LATE AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
7. ABDUL KAREEM, 38 YEARS,
S/O. LATE AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
8. ABDUL LATHEEF, 43 YEARS,
S/O. LATE AVARANKUTTY,
NALAKATH VALAPPIL,
KADALUNDI AMSAM,
PAZHANJANNOOR DESAM,
KOZHIKODE TALUK.
R2, 3, 5, 6 AND 7 BY ADVS. SRI.MOHAMED NIAS.C.P.
SRI.E.NARAYANAN
SRI. C.P.MOHAMMED NIAS
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
31-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ss
P.N.RAVINDRAN &
K.RAMAKRISHNAN, JJ.
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C.R.P. No.413 of 1995
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Dated this the 31st day of March, 2016
ORDER
K.RAMAKRISHNAN, J The respondent in R.C.P.No.199/1985 on the file of the Rent Control Court-II, Kozhikode are the revision petitioners herein. The original first respondent herein as landlord filed the application for eviction of the petition schedule building from the possession of the respondents in the rent control petition on the ground of arrears of rent and sub lease under Section 11(2)(b) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as 'the Act' for short).
2. The case of the original landlord in the rent control petition was that the petition schedule building was taken on lease by the original first respondent in the rent control petition on 15.11.1978 with a stipulation to pay monthly rent of Rs.60/-. At the time of entrustment, it was agreed that he will not keep the rent in arrears and sublet the building. The original first respondent in the rent control petition paid rent up to 16.02.1985 and thereafter kept the subsequent rent in arrears. The first respondent sublet the building to the second respondent without the knowledge and consent of the C.R.P. No.413 of 1995 2 petitioner. This fact came to his knowledge only recently. The act of first respondent entrusting the second respondent is against the terms of entrustment. Earlier he filed R.C.P.No.31/1984 against the original first respondent in the rent control petition, seeking eviction on the ground of arrears of rent and later the claim under Section 11(4)(ii) was not pressed and an order of eviction was passed under Section 11 (2)(b) of the Act, later the first respondent filed application under Section 11(2)(c) of the Act and got the order vacated by paying the arrears of rent as on that date. Thereafter when the landlord came to know about the sub lease, he sent a notice on 02.09.1985, requesting the tenant to vacate the sub lease and surrender possession of the building. He refused to receive the notice. So the petitioner has no other option except to approach the court for eviction under section 11 (2)(b) and 11(4)(i) of the Act.
3. The respondents filed joint statement stating that the petitioner has no right to file the application. The first respondent is not having any right and the building was not taken by him in his individual capacity and the building was taken for the purpose of using the same as office of the Indian Communist Party, Kadalundy Branch. The rent was not in arrears. Though the rent was tendered, it was not accepted as they wanted enhancement of rent at the rate of Rs.75/- C.R.P. No.413 of 1995 3 per month. They have only stated that they will be paying the rent agreed between the parties at the time of entrustment. The allegation that the building was sublet is not correct. Even in the earlier proceedings, it was mentioned that the building was taken on rent by the first respondent in the court below for the party and the rent was paid with the funds of the party. So the landlord is not entitled to get the relief claimed in the petition.
4. The original landlord was examined as PW1 and the first respondent was examined as RW1 and Exts.A1 to A4 and Exts.B1 and B2 were marked on the side of the parties. After considering the evidence on record, the court below found that the rent was in arrears and the landlord is entitled to get eviction under Section 11(2)(b) of the Act. The court below found that the case of the respondent is probable that the letting was for and on behalf of the second respondent/Communist Party of India and decline to order eviction under Section 11(4)(i) of the Act but allowed the application under Section 11(2)(b) of the Act alone. Aggrieved by the same, the landlord filed R.C.A.No.24/1989 before the rent control appellate authority, Kozhikode which was made over to Additional District Court, Kozhikode for disposal and the learned Additional Rent Control Appellate Authority allowed the appeal holding that there was sub lease and allowed the C.R.P. No.413 of 1995 4 application for eviction under Section 11(4)(i) of the Act as well. Aggrieved by the same, the present revision has been filed by the original respondents in the court below before this court.
5. Earlier the revision was dismissed for default and during the pendency of the restoration application M.J.C.No.20 of 2008, the sole respondent in the revision died and his legal representatives were impleaded as additional respondents 2 to 8 and this court by separate order today recorded them as legal representatives of the original respondent in the revision as well. Similarly during the pendency of the proceedings in another application filed by the tenant, the first revision petitioner died and without noticing this fact that the revision was restored to file. The first revision petitioner died and his legal representatives were impleaded as additional petitioners 3 to 6 in that petition and this court by a common order allowed that impleadment as impleadment in the revision as well and additional petitioners 2 to 6 were recorded as the legal representatives of the original revision petitioner in this revision as well.
6. Heard Sri.Renjith Thampan, senior counsel appearing for the revision petitioners and Sri.Mohammed Niyas, counsel for the respondents.
7. The senior counsel appearing for the revision petitioner C.R.P. No.413 of 1995 5 submitted that the appellate authority was not justified in reversing the order of dismissal passed under Section 11(4)(i) of the Act, especially from the inception itself the party office is functioning in the petition schedule building. It cannot be said that the landlord was not aware of the same. So there is a non-objectionable sub lease and this fact was mentioned by the first respondent in the earlier rent control proceedings as well. But in spite of that, the ignorance pleaded by the landlord that there was sub lease and he came to know about the sub lease only later etc., is not correct. He also submitted that the original rent deed had not been produced in this proceedings. So it cannot be said that there was any clause prohibiting sub lease. On that ground also, the appellate authority was not justified in reversing the dismissal of the petition for eviction under Section 11(4)(i) of the Act and allowing eviction under Section 11(4)(i) of the Act.
8. On the other hand, the learned counsel for the respondents submitted that the earlier proceedings though such a contention was raised, that was not accepted by the court and earlier in the suit, recovery of possession was ordered and in the meantime since Rent Control Act has been extended to that area, that decree could not be executed. Thereafter even in R.C.P.No.31/1984, the same contention was raised, but the rent control court ordered eviction under Section C.R.P. No.413 of 1995 6 11(2)(b) of the Act and that amount was deposited by the first respondent and the order was later vacated. So under the circumstances, they cannot now contend that the building was taken on rent by the first respondent in the rent control proceedings in the capacity as a member for and on behalf of the party. So the appellate authority was perfectly justified in ordering eviction under Section 11 (4)(i) of the Act, setting aside the order of dismissal passed by the court below on that ground.
9. The fact that the first respondent in the original rent control petition had taken the building on rent from the petitioner is not in dispute, but his case in the counter statement was that the building was taken on rent not in his individual capacity but as a party worker for and on behalf of the Kadalundy branch of the Communist Party of India and from the date of entrustment, the party is in possession of the building and there was no sublease. It is true that in the earlier proceedings evidenced by Ext.B1, the original tenant had taken a contention that it was taken for the party not in his individual capacity. But it will be seen from Ext.A3 decree in O.S.No.224/1980 in which the original first revision petitioner alone was a party and it was decreed and recovery of possession was ordered. If really the contention of the first respondent was accepted, then the court should C.R.P. No.413 of 1995 7 not have passed a decree in favour of the landlord and the suit ought to have dismissed for non-jointer of necessary parties namely the Communist Party of India. Further it will be seen from Ext.A4 certified copy of the order in R.C.P.No.31/1984, the application was allowed under Section 11(2)(b) of the Act. In that case also the only respondent shown was the first revision petitioner alone. If really the party was the real tenant, then the rent control court would not have ordered eviction under Section 11(2)(b) of the Act, making the original first revision petitioner alone as party to the proceedings. Those aspects were not challenged by the original tenant by an filing appeal. So the finding in those cases has become final and first revision petitioner is now estopped from contending that there is no sub lease and the building was taken on rent by the first respondent in the rent control petition for and on behalf of the second respondent in the court below, namely the Communist Party of India is without any merit. Further it was in away admitted by RW1 that the lease deed was executed in his personal capacity. He had no case that he had executed the kaichit in his official capacity. No document has been produced from the side of the revision petitioners to prove that first revision petitioner was holding any official position in the party at that time and in that capacity he was permitted to take the building on rent C.R.P. No.413 of 1995 8 on the basis of the decision taken by the party and the building was taken on rent. Further it is admitted by RW1 that it was he who had filed the application to vacate the order of eviction passed under Section 11(2)(b) of the Act in the earlier proceedings in R.C.P.No.31/1984. But his case was that the amount was remitted by the party and he filed the application for and on behalf of the party, but nothing has been produced to show that party had authorized him to file the petition and it was from the party fund that the arrears of rent has been paid so as to get the order of eviction passed under section 11(2)(c) of the Act vacated. Further in Ext.B2 also it is seen that though originally the occupant of the petition schedule building was shown as C.P.I. party, but later it was corrected showing the original first revision petitioner as the occupant. According to the learned counsel for the petitioner, this was done at the instance of the landlord by filing application. If really they were aggrieved by the same, they would have challenged the action of the panchayath, correcting the name of the occupant in the property tax register maintained in the panchayath, but that was not done by them. That also shows that the building was taken by the first revision petitioner in his individual capacity and not in his official capacity for and on behalf of the second revision petitioner. So under the circumstances, C.R.P. No.413 of 1995 9 the appellate court was perfectly justified in reversing the order of dismissal passed by the court below and ordered eviction under section 11(4)(i) of the Act and the finding of the appellate authority does not call for any interference at the hands of this court invoking the power under Section 20 of the Act.
While disposing the revision petition, the counsel for the revision petitioner prays time to vacate the premises. Considering the circumstances, we feel that three months from today can be granted to the revision petitioner to vacate the premises.
With the above direction and observation the revision petition is dismissed. Considering the circumstances, the parties are directed to bear their respective costs in the revision.
Sd/-
P.N.RAVINDRAN (JUDGE) Sd/-
K.RAMAKRISHNAN (JUDGE) //True Copy// P.A. to Judge ss