Sasidharan vs Thahira Bhanu on 12 March, 2020

[Cites 18, Cited by 0]

Kerala High Court

Sasidharan vs Thahira Bhanu on 12 March, 2020

The petitioner is the appellant and the respondent is the respondent in RCA 20/2018 on the files of the Rent Control Appellate Authority (District Court), Palakkad. The aforesaid rent control appeal was filed challenging an order of eviction passed against him in RCP 7/2011 of the Rent Control Court, Alathur under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). As per the order of eviction, the petitioner herein is directed to give vacant possession of the petition schedule shop room to the respondent within a period of thirty days. During the pendency of the aforesaid appeal, the petitioner had preferred IA No.1/2020 (Ext P3) under Sec.10 of the Code of Civil Procedure, 1908 3 (for short 'CPC') on the following grounds:

(i) that the subject-matter in RCA 20/2018 is the subject-matter of dispute in RFA 228/2005, pending consideration before the High Court and in that appeal decree and judgment in OS No.2/1996 on the files of the Sub-Court, Palakkad was under challenge as the trial court dismissed the suit for partition. Item No.48 in the decree in O.S No.2/1996 is the subject-matter of RCA 20/2018.

(ii) that the petitioner's brother Surendran had filed a suit for specific performance against the respondent herein, on the basis of an agreement for sale of the scheduled property in the aforesaid rent control appeal, before the Additional Sub-Court, Palakkad as OS 4 No.128/2009. In OS No.128/2009, the Additional Sub-Court ordered to return the advance amount vide judgment dated 18.2.2013. Aggrieved by the said judgment, petitioner's brother Surendran filed RFA 551/2013 before the High Court and the respondent therein also filed RFA 515/2014 before the High Court. Thus, both RFA Nos 551/2013 and 515/2014 are pending consideration before the High Court.

(iii) One of the co-owner Beepathumma involved in OS No. 2/1996 has already assigned her respective share in the property to the petitioner's brother Surendran by virtue of sale deed No.126/2010 of Vadakkanchery SRO. That apart, major shareholders (1) Saithoon, 5 (2) Hajarumma, (3) Kader Beevi, (4) Nabeesa Umma and (5) Ayisumma, who are respondents in RFA No. 228/2005 along with the abovementioned Beepathumma had entered into an agreement dated 11.11.2008 for sale of their respective share in the property involved in Ext P1 appeal and they do not intend to evict the petitioner. According to the petitioner, the appellants in both RFA Nos 228/2005 and 551/2013 are likely to succeed, in which event, the petitioner's brother Surendran will become a co-owner in respect of the scheduled building in the rent control appeal. Besides, the petitioner's brother Surendran filed IA No.1374/2018 in RFA 228/2005 for impleading himself as 23rd 6 respondent, which is also pending consideration before the High Court. Therefore, the present RCA 20/2018 be stayed as the points to be determined in RFA Nos 228/2005, 551/2013 and 515/2014 would cause fundamental impact in RCA 20/2018, as the subject- matter in all the appeals are same.

2. The respondent filed counter statement resisting the said application under Sec.10 of the CPC, seeking an order of stay against RCA 20/2018. The respondents contended that Sec.10 of the CPC has no application to the facts of the case. According to the respondent, the subject- matter and the issues in both cases are distinct and different and the petitioner herein is not a party in any of the appeals referred above, pending before the High Court. According to the 7 respondent, even if the High Court ultimately allow the appeals that will not in any way affect the findings to be entered in the present appeal. In short, according to the respondent, the verdict that may be passed in the appeal is of no consequence at all whether the appeal is allowed or not.

3. On the aforesaid rival pleadings, both parties adduced evidence and the petitioner has produced Exts A1 to A7. After considering the rival pleas and the documents produced by the petitioner, the Rent Control Appellate Authority dismissed the application on the following findings:

(i) According to the legal position well settled by this Court in 2005 (1) KLT 577 [Saj Flight Services Private Ltd vs Louis Pereira], Sec.10 of the CPC cannot be applied to a proceedings 8 pending before the Rent Control Court under the provisions of the Kerala Buildings (Lease and Rent Control) Act.

(ii) The matter in issue involved in the present appeal is not directly or substantially in issue in three appeals pending before the High Court.

4. The legality and correctness of the aforesaid two findings are challenged in this original petition filed under Article 227 of the Constitution of India.

5. Heard Sri.P.B.Krishnan, the learned counsel for the petitioner and Sri.Vinod Bhatt, the learned counsel for the respondent.

6. Firstly, it is contended that the decision rendered by this Court in 2005 (1) KLT 577 [Saj Flight Services Private Ltd vs Louis Pereira] requires consideration by a larger Bench of this Court. According to the learned counsel for the 9 petitioner, certain Orders in CPC are made applicable to the proceedings under the Act, before the Rent Control Court by the decisions rendered by the High Court in 1978 KHC 125 [Balakrishna Reddiar vs Madhavan Pillai], 1995 KHC 285 [Gopalan vs Aboobacker], 1999 KHC 57 [Jullunder D. And N. Mfg Co vs Jayadevan], 1981 KHC 130 [Ouseph vs Kunjipathumma], 2009 (2) KHC 685 [Abdul Asees vs Devaky], 2013 (2) KHC 185 [Mohan K vs K.H. Jayaprakash]. If certain provisions under the CPC can be made applicable to the Rent Control Court also there is no reason to discriminate Sec.10 of the CPC by making it not applicable to the Rent Control Court by the decision in Saj Flight Services Case (supra). According to the learned counsel, either all the provisions of the CPC can be made applicable or 10 none of the provisions can be made applicable and there is no reasoning to make certain provisions alone applicable to the Rent Control Court. Therefore, an authoritative pronouncement of a larger Bench is required to settle the position whether all the provisions under the CPC can be applied to the Rent Control Court or not.

7. Secondly, it is contended that the judgment that may be passed in appeals pending before this Court as RFA 551/2013, RFA 515/2014 and RFA 228/2005 may cause fundamental effect and impact on the point to be determined in RCA 20/2018, if the High Court allows the aforesaid appeals. The brother of the petitioner, Surendran, would become the owner of the tenanted premises and he does not want to evict the petitioner from the scheduled building. Therefore, the Rent Control Appellate Authority ought to have stayed 11 the proceedings in RCA 20/2018, invoking the power under Sec.10 of the CPC.

8. In view of the arguments at the bar, the first point to be considered is whether the decision rendered by this Court in Saj Flight Services Case (supra) requires authoritative pronouncement of the larger Bench of this Court, in respect of the application of Sec.10 CPC to the Rent Control Court. The relevant part of the dictum laid down by the Division Bench of this Court in Saj Flight Services Case (supra) reads thus:

4. We have no doubt about the proposition that Sec.10 of the CPC can have little application in such case that has been placed before the Rent Control Court. Such, proceedings cannot be equated with a suit.

Sec.10 CPC, says that a Court shall not proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or 12 any of them put up claims and similar other circumstances. Proceedings which are pending before the Rent Control Court cannot be treated as a bar or enabling provision in which application of Sec.10 CPC can be sought by a tenant in occupation, for the only reason that he has filed a suit on the basis of an agreement. In the aforesaid circumstance, we are of the opinion that the Rent Control Court has rightly rejected the applications as it is incompetent.

9. According to the aforesaid decision, it is unambiguously stated that the provisions under Sec.10 of the CPC cannot be applied to the Rent Control Court or the Appellate Authority in the proceedings under the Act. We have gone through the various other decisions cited by the learned counsel for the petitioner. It is true that by the aforesaid decisions, various provisions such as Order XXXII, Order I rule 10(2), Order XLI rule 22, Order IX rule 9 and Order XXIII etc are made applicable to the rent control proceedings. 13

10. In the above context, let us have a look at Sec.23 of the Kerala Buildings (Lease and Rent Control) Act, by which certain provisions in the CPC are made applicable to the proceedings before the Rent Control Court also.

11. Sec.23 of the Kerala Buildings(Lease and Rent Control) Act reads thus:

23. Summons etc. - (1) Subject to such conditions and limitations as may be prescribed, the Accommodation Controller, the Rent Control Court and the appellate authority shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:-

(a) discovery and inspection;

(b) enforcing the attendance of witnesses, and requiring the deposits of their expenses;

(c) compelling the production of documents;

(d) examining witnesses on oath;

(e) granting adjournments;

(f) reception of evidence taken on affidavit; 14

(g) issuing commission for the examination of witnesses and for local inspection;

(h) setting aside ex parte orders;

(i) enlargement of time originally fixed or granted;

(j) power to amend any defect or error in orders or proceedings; and

(k) power to review its own order. (2) The Accommodation Controller, the Rent Control Court or the Appellate Authority may summon and examine suo motu any person whose evidence appears to it to be material, and it shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898.

12. On an analysis of Sec.23 of the Act, we find that legislature, in its wisdom, consciously made certain provisions applicable to the proceedings in a Rent Control Court and excluded other provisions. In the above context, Sec.15 of 15 the Act also assumes significance. On an analysis of Sec.15, we find that the provisions under Sec.11 of the CPC are not made fully applicable to the rent control proceedings and the principles enunciated under Sec.11 of the CPC alone is adopted while framing Sec.15 of the Act. It follows that legislature has consciously made certain substantive provisions in CPC applicable to the Rent Control Court also. On a comparison of the proceedings in a rent control petition and a civil suit pending before the civil court, we also find that there are differences in the proceedings and that is the reason why all the provisions of the CPC are not made applicable as such to the proceedings before the Rent Control Court. The proceedings before the Rent Control Court is summary in nature unlike the proceedings in a civil court. It stands settled by the Supreme Court 16 that meticulous pleadings is not required in a rent control petition, whereas a civil suit is governed by pleadings which are specified under Order VI of the CPC.

13. The learned counsel for the petitioner drew our attention to Sec.141 of the CPC and contended that the Rent Control Court is also a Court. Therefore all the provisions under the CPC can be applied as such to the Rent Control Court also. According to Sec.141 of the CPC, the procedure provided in the CPC in regard to the suit shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction. It is needless to say, the Rent Control Court is not a Court having the civil jurisdiction. We are of the view that unless the Rent Control Court is designated as the Court having civil jurisdiction, CPC as such cannot be 17 made applicable to proceedings in a Rent Control Court or the Appellate Authority.

14. Going by the decisions referred above, we further find that by the decisions, this Court has made certain provisions applicable to procedural matters during the conduct of the Rent Control Petition. But, Sec.10 is a power granted to the Court to stop the proceedings on the ground that in a former suit, in which the same matters in issue are involved, is pending for consideration. That apart, we are of the view that if this Court has jurisdiction to make certain provisions in the CPC applicable to the proceedings in the Rent Control Court on reasoning, this Court also has jurisdiction not to make certain other provisions applicable to the proceedings in a Rent Control Court. In short, this Court has power both to exclude and include the provisions, which are not 18 made applicable under Sec.23 of the Act with sufficient reasonings.

15. Going by the dictum laid down by the Supreme Court in Saj Flight Services Case (supra), we also agree with the view expressed by the Division Bench of this Court. We are also of the view that where the legislature, in its wisdom, consciously excluded Sec.10 of the CPC to make applicable to the proceedings in a Rent Control Court, we do not find any reason to hold otherwise, particularly when the proceedings in a Rent Control Court and in a civil court are entirely different and distinct. Generally, issues involved in a civil suit and rent control petitions are entirely different and distinct.

16. We have examined the scope and extent of an application under Sec.10 of the CPC in an appeal, in a different point of view also in the light 19 of the decisions in AIR 1984 Rajasthan 22 [Munilal v. Sarvajee], AIR 2011 Himachal Pradesh 35 [Ranju Ram and Anr. v. Nand Lal and Ors] and in Manupatra/HP/1844/2019 [Bhau Ram v. Kamla Devi and Ors].

17. In AIR 1984 Rajasthan 22, the Court held as follows:-

The expression 'trial or hearing of the action' occurring in the Legal Aid and Advice Act, 1949 came up for consideration in Gope v.United Dairies (London) Ltd., (1963) 2 All ER 194 and it was held that on a true construction of the aforesaid enactment, a dismissal of an action at the preliminary stage did not fall within the expression 'trial or hearing of the action' so as to entitle the defendant to costs. In my view, even if a wider interpretation is given to the expression 'the trial of the suit', occurring in S.10, CPC., yet it cannot travel beyond the determination of the cause of action by the trial court. If the documents have been filed witnesses have been examined arguments have been heard, and judgment pronounced by the trial court then it must be held that 'the trial of the suit' has come to an end. This is in consonance with the wider view, applied by their Lordships of the Supreme Court to the expression, 'trial' in the case of election petition, in Harish Chandra's case. The hearing of an appeal cannot be 20 considered as a part of 'the trial of the suit'.

16. Thus, while holding that the provisions of S.10 CPC., are mandatory and the trial of a subsequently instituted suit is bound to be stayed if any party makes a request before the Court trying that suit that a previously instituted suit is pending determination either in the trial court, or the first appeal or second appeal arising therefrom is pending for decision. But if the trial of the subsequently instituted suit has proceeded without any objection and the same has terminated with the delivery of the judgment and the preparation of the decree of that court, then S.10 , CPC has no relevance because it only prohibits the 'trial of the suit' and no further. Following the dictum of Vivian Bose J. in Gangaprasad's case (AIR 1937 Nag 132) as no objection under S.10 CPC., to the trial of the subsequently instituted suit was taken until the termination of the proceedings in the suit the objection must be deemed to have been waived by the petitioner and it is not open to him to raise such an objection in the appeal arising out of the subsequently instituted suit.

18. In AIR 2011 Himachal Pradesh 35, the Court held as follows:-

8. If we go behind the purpose of Section 10, it is obvious that the framers of Section 10 felt that if a matter has already been decided by a Court, the previous time of the Court, the witnesses and the 21 parties should not be wasted in a second trial and the parties should await the judgment of the previously instituted suit so that the trial in the subsequent suit if necessary can be curtailed. Here we are dealing with a case where both the suits proceeded. It is the present respondents who instituted the second suit.

When they instituted the second suit and no objection was raised under Section 10 of the CPC can they now take advantage of this quirk of fate that their suit has been decided earlier and now they pray that the previously instituted suit be stayed? In my view the answer has to be in the negative.

9. When the section talks of stay of trial of the suit it obviously means that the subsequently instituted suit can be stayed only at the trial stage. It is true that normally appellate proceedings are considered to be a continuation of the suit but by no stretch of imagination can it be said that the appellate proceedings are at the 'trial stage' of the suit. The mandate of the Section is very clear that only the trial of the suit can be stayed. In very exceptional circumstances stay may also be granted at the appellate stage but normally it is only the trial of the suit which could be stayed and not the appeal.

19. In Manu/HP/1844/2019, the High Court of Himachal Pradesh again held as follows:

16. Thus, while holding that the provisions of Section 10, CPC are mandatory and the trial of a 22 subsequently instituted suit is bound to be stayed if any party makes a request before the Court trying that suit that a previously instituted suit is pending determination either in the trial court, or the first appeal or second appeal arising therefrom is pending for decision. But if the trial of the subsequently instituted suit has proceeded without any objection and the same has terminated with the deliver of the judgment and the preparation of the decree of that court then S.10, CPC has no relevance because it only prohibits the 'trial of the suit' and no further. Following the dictum of Vivian Bose J. in Gangaprasad's case (MANU/NA/0194/1936: AIR 1937 Naff 132) as no objection under S.10 CPC., to the trial of the subsequently instituted suit was taken until the termination of the proceedings in the suit the objection must be deemed to have been waived by the petitioner and it is not open to him to raise such an objection in the appeal arising out of the subsequently instituted suit.

20. We agree with the proposition laid down in the aforesaid decisions. We are also of the view that subsequently instituted suit can be stayed only at the trial stage and if the trial of the subsequently instituted suit has been proceeded, 23 without any objection and judgment is delivered, an application under Sec.10 of the CPC is not maintainable in an appeal arising out of that subsequently instituted suit.

21. In the instant case, RCP 7/2011 is a subsequently instituted Rent Control Petition and in that Rent Control Petition, the Revision Petitioner has not raised any objection as stated in the present application, under Sec.10 of the CPC. Thus, he waived his right to raise objections against the proceedings in RCP 7/2011, in view of the previously instituted Original Suits. Hence, we find that in the above view also, the application under Sec.10 of the CPC was not maintainable in RCA 20/2018.

22. That apart, according to Sec.113 of the CPC, a reference can be made when determination by a larger Bench is necessary for the disposal of 24 the case. We have no doubt in our mind and we agree with the dictum laid down by this Court in Saj Flight Services Case (supra). We do not find any reason to make a reference as urged by the learned counsel for the petitioner.

22. Coming to the merits of the case, the learned counsel for the petitioner contended that the decisions in the appeals pending before the High Court may have fundamental impact on the decision to be rendered in the rent control appeal, if the appeals pending before this Court are allowed.

23. Let us have a look at the aim and object of Sec.10 of the CPC. In AIR 2005 SC 242 [National Institute of Mental Health and Neuro Sciences v. C.Parameshwara], the Supreme Court held that the object underlying Sec.10 is to prevent Courts of concurrent 25 jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The fundamental test to attract Sec.10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit.

24. When analyzing the provisions in Sec.10, we find that under Sec.10 a suit may be stayed on fulfillment of the following conditions:

(1) There are two suits, one previously instituted and other subsequently instituted (2) The matter in issue in the subsequent suit is directly and substantially in issue in the 26 previous suit (3) The parties to both suits are the same. (4) Previously instituted suit must be pending. (5) The Court in which previous suit is pending has jurisdiction to grant the relief claimed in the subsequent suit. Unless, the aforesaid conditions are fulfilled, Sec.10 of the CPC cannot be invoked to stay the proceedings in a civil suit. Surprisingly, we notice that the learned counsel for the petitioner has not made any argument to the effect that the matter in issue involved in RFAs is directly and substantially in issue in the RCA, pending before the Rent Control Appellate Authority.

On the other hand, the learned counsel argued that the decisions that may be passed in the RFA may have fundamental impact in the decisions to be rendered in the RCA, if the RFAs are allowed. On an analysis of the aforesaid 27 statutory ingredients, which constitute Sec.10, we find that the fundamental impact which may be caused by the decisions in RFAs pending before the High Court on the decision to be rendered in RCA can never be made as a ground or a reason to invoke Sec.10 of the PC.

25. It is needless to say, the petitioner herein is not a party in any of the appeals pending before the High Court. His brother is a party as appellant and respondent in the aforesaid appeals and the same is of no consequence at all, while considering RCA 20/2018. In so far as the rent control petition seeking order of eviction under Sec.11 (3) of the Act is concerned, the matter in issue has to be determined in the Rent Control Court as well as the Appellate Authority on the basis of the state of affairs and the facts and circumstances on 28 the date of institution of the rent control petition. Subsequent events happened during the pendency of the appeal is of no consequences at all and an appeal cannot be stayed under Sec.10 of the CPC on the ground that an appeal in respect of the subject-matter, in which tenanted premises is also included, is pending before the Appellate Authority between the landlord and a stranger.

26. When legally considering the status of Surendran, the brother of the petitioner, he is a stranger to the lis. If he succeeds in the appeal, certainly he will step into the shoes of the present landlord, the respondent in RCA and the same is of no consequence at all, while considering the right of the petitioner. It is pertinent to note that OS 2/1996 and OS 128/2009 were pending when RCP 7/2011 was 29 filed in the year 2011. But the petitioner herein has not raised any contention in his counter statement claiming that the decree that may be passed in OS 2/1996 and OS 128/2009 have a fundamental impact in the order to be passed in RCP 7/2011. The petitioner has not made any reference to OS 2/1996 and OS 128/2009.

27. We further noticed that the petitioner has not denied the landlord - tenant relationship. It is settled by the Full Bench of this Court that paramount title of the tenanted premises need not be considered while determining a rent control petition and the only question to be considered is whether the parties would fall within the definition of landlord and tenant respectively, as provided under Sec.2(3) and 2(6) of the Act.

28. In the instant case, it is not disputed that 30 the petitioner has been paying rent to the respondent. Therefore, even if the appeals are allowed in favour of the brother of the petitioner, he will step into the shoes of the respondent herein and that does not make any impact on the rights of the petitioner herein as a tenant. Thus, we find that the matters in issue involved in the Rent Control Appeal and the appeal arising out of the suit for specific performance and the suit for partition are not one and the same, falling under Sec.10 of the CPC. Hence, this original petition fails and is dismissed accordingly.

29. The learned counsel for the petitioner submits that now RCA No.20/2018 on the file of the Rent Control Appellate Authority, Palakkad is posted for final hearing on 13.3.2020. Since the petitioner is expecting a favourable decision from this Court, he wants some more time to argue the 31 appeal before the Appellate Authority. The learned counsel for the respondent submits that hearing can be adjourned, but the appeal requires an early disposal, as the matter is pending for a long time.

30. Having regard to the submissions at the bar, the Rent Control Appellate Authority, Palakkad is directed to hear RCA No.20/2018 on a day after 18.3.2020 and dispose of the same before summer vacation.

Sd/-

K.HARILAL JUDGE Sd/-

C.S.DIAS Sks/ JUDGE 32 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF MEMORANDUM OF APPEAL IN RCA 20/2018 FILED BEFORE RENT CONTROL APPELLATE AUTHORITY, PALAKKAD (DISTRICT COURT, PALAKKAD) EXHIBIT P2 TRUE COPY OF ORDER DATED 31.3.2018 IN RCP 7/2011 OF THE RENT CONTROLLER OF ALATHUR (MUNSIFFS COURT ALATHUR) EXHIBIT P3 TRUE COPY OF IA 1/2020 FILED BY UNDER SECTION 10 OF CODE OF CIVIL PROCEDURE 1908 ON 30.11.2019 EXHIBIT P4 TRUE COPY OF COUNTER STATEMENT FILED BY RESPONDENT HEREIN IN EXHIBIT P3 ON 18.1.2020 EXHIBIT P5 TRUE COPY OF ORDER DATED 26.2.2020 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT PALAKKAD) IN EXHIBIT P3 PETITION EXHIBIT P6 TRUE COPY OF THE IA NO 1374/2018 IN RFA NO 228/2005 FILE BEFORE THIS HON'BLE COURT EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT IN IA NO 1374/2018 IN RFA NO 228/2005 FILED BEFORE THIS HON'BLE HIGH COURT EXHIBIT P8 TRUE COPY OF THE APPEAL MEMORANDUM OF RFA NO 551/2013 FILED BEFORE THIS HON'BLE COURT EXHIBIT P9 TRUE COPY OF JUDGMENT IN OS NO 128/2009 OF THE ADDITIONAL SUBORDINATE JUDGE, PALAKKAD.

EXHIBIT P10 TRUE COPY OF DECREE IN OS NO 128/2009 OF THE ADDITIONAL 33 SUBORDINATE JUDGE, PALAKKAD EXHIBIT P11 TRUE COPY OF SALE AGREEMENT TO PURCHASE THE PROPERTY INCLUDED IN RCA WITH ENDORSEMENTS EXECUTED BY AYATHUMMA AND OTHERS IN FAVOUR OF SURENDRAN EXHIBIT P12 TRUE COPY OF APPEAL MEMORANDUM OF RFA NO 228/2005 FILED BEFORE THIS HON'BLE COURT ALONG WITH JUDGMENT AND DECREE IN OS NO 2/1996 OF SUB COURT, PALAKKAD EXHIBIT P13 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN OP(RC) NO 32/2020 DATED 19.2.2020 34

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