Kerala High Court
Mohammed Salim vs Habeeb & Company on 14 March, 2002
Author: J.B. Koshy
Bench: J.B. Koshy, K. Padmanabhan Nair
JUDGMENT J.B. Koshy, J.
1. The petitioner is the owner and landlord of a row of shop rooms in building at Jew Street, Kochi City. Respondent Nos, 1, 3, 4, 5 and 6 are the petitioner's tenants in occupation of different portions of the aforementioned building. The petitioner instituted RCP Nos. 30/1996, 7/1996, 71/1996, 69/1996 seeking eviction of those respondents. The main and common ground urged by the petitioner in all these cases is under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). There were additional eviction grounds also in two of these Rent Control Petitions. Upon service of notice by the respondents in the Rent Control Petitions, respondents 1 to 6 herein filed statement of objections before the 10th respondent to the respective Rent Control Petitions. Petitioner filed separate applications for joint trial of all the Rent Control Petitions together on the ground that petitioner wanted the same building for reconstruction and evidence to be adduced in all these cases, atlast about these aspects will be similar. The Rent Control Court by Ext. P1 common order rejected all the applications. The above order is very short. We may extract the same herein:
"Both sides were heard.
It has been held in 1991 (1)KLT 866 (Sathyavathy v. Bhargavi) that there is hardly any ground for ordering joint trial, when the grounds would be definitely different in relation to any individual landlord or any individual tenant in respect of the allegation of aggressive pleading or differentialities in the defensive pleas.
In these cases also the grounds are not common, but only one ground viz., Section 11(4)(iv)is found to be common."
2. Aggrieved by Ext. P1 order, petitioner filed appeals under Section 18 of the Act. The appellate authority held that as there is common ground under Section 11(4)(iv) all these petitions can be jointly tried. The appellate authority relied on the decisions of this Court in O.P. No. 2241 of 2001, Devassia v. St. Mary's Ferona Church (1983 KLT 172) and Sulthan v. Mohanan (2000 (3) KLT 338). But it dismissed the appeal as no appeal is maintainable in procedural matters in view of the decision in Thomas John v. Kochammini Amma (1991 AIR Kerala 132), Ulahannan Kurian v. Ipe Thomas (1985 KLT 529), Sumathi v. Devasan (1991 (1) KLT 453) and the decision of the Supreme Court in Shankarlal v Shankarlal (AIR 1965 SC 507), Therefore, this Writ Petition was filed under Article 227 of the Constitution of India Challenging the correctness of the order of the Rent Control Authority.
3. When the case came up for argument, preliminary objections were raised by the respondents. The first objection raised was regarding maintainability of a petition under Article 227 of the Constitution of India. According to the petitioner, order of the Rent Control Authority was merged with the Appellate Tribunal's order. Therefore, only a revision petition can be filed under Section 20 of the Act Article 227 of the Constitution of India. Secondly it was argued that in the prayer portion only Rent Control Authority's order is challenged. Since that order was merged with appellate order, no relief can be granted.
4. It may be a fact that when unmerited contentions are taken, too much hypertechnical points will be argued. Here in this case, order of the Rent Control Authority was challenged in appeal. Even though appellate court found that there is merit in the appeal, it was dismissed as not maintainable. Therefore, main order that is to be challenged is the order of the Rent Control Authority itself. To apply doctrine of merger appeal should be decided on merits. Here appeal was dismissed as not maintainable. When appeal is not entertained as not maintainable, doctrine of merger is not applicable at all. Apart from the above, Ext. P2 judgment of the appellate authority is also challenged in this petition. The relief prayed for is as follows:
"For these and other reasons which may be urged at the time of hearing, it is most humbly prayed to issue (1) an appropriate writ order or direction calling up the records relating to Ext. P1 order and examine those records and quash Ext. P1 order and accordingly allow all the applications for joint trial of the 5 control petitions mentioned in Ext. P1 order and Ext. P2 judgment".
It is clear that Ext. P2 judgment is also challenged here. Even otherwise, it can be seen that on merit the appellate authority in Ext. P2 judgment agreed with the petitioner but dismissed the appeal only on the ground of maintainability and we have to consider whether order of the Rent Control Court is correct or not on merits.
5. If no appeal can be filed in procedural matters as held by the appellate court, only remedy available to the petitioner to challenge the preliminary order no interlocutory application is to approach this Court under Article 227 of the Constitution of India. That is done in this case. In that process correctness of Ext. P2 regarding maintainability also is questioned. If appeal is not maintainable from appellate court's order no revision is also maintainable under Section 20 of the Act. It was the contention of the respondents that no appeal is maintainable against Ext.P1 order of the Rent Control Court as the order is pertaining to procedural mattes. That point was accepted by the apellate court and dismissed the appeal as not maintainable under Section 18 of the Act. If that be so, revision application is not maintainable under Section 20 of the Act and Writ Petition cannot be rejected for existence of alternate remedy. Since appellate authority dismissed the appeal itself as not maintainable, petitioner challenged Ext. P1 order in Writ Petition and in that circumstances the Writ Petition is maintainable as Section 20 cannot be invoked to challenge the order of the Rent Control Court. Further scope of Article 227 is not excluded in correcting a procedural mistake committed by the lower court especially if there is patent error of proceedings and grave injustice will follow if the mistake is not corrected. (See Santhosh v. Rod Singh (AIR 1958 SC 312). As held by the Apex Court in Banerjie v. P.K. Asokan (1953 SCR 302), under Article 227 the High Court has a duty to see that Courts and tribunals "do what their duty require and that they do in a legal manner". Further, even if Ext. P2 can be challenged in revision under Section 20 of the Act, the bar on the ground of alternate remedy in filing a Writ Petition is not absolute and is only a condition for exercise of discretion and does not exclude the jurisdiction of the High Court in exceptional cases. (See Maneck Custodji v. Sarafazali (AIR 1976 SC 2446)). The power of the High Court under Article 227 is wider than under Section 115 of the Code of Civil Procedure and Section 20 of the Rent Control Act.
6. The main question to be considered is whether the order challenged is illegal resulting injustice or irregularity. If this Court is satisfied that interference is required, technicalities will not hinder this Court in correcting the mistake committed by the court or tribunal over which this Court has supervisory jurisdiction. It was held in Lily Thomas v. Union of India (AIR 2000 SC 1650) that justice is a virtue which transcends all barriers and rules of procedure. Technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. In M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR 1998 SC 128) in paragraph 26 of the Apex Court held as follows:
"26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the Subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
7. Here there is no dispute that this Court has territorial jurisdictional over the matter as Exts. P1 and P2 were passed by Subordinate Court/Tribunal in the State. Here the question is because of Section 20 of the Rent Control Act whether Article 227 can be invoked and whether petition can be dismissed even if orders challenged are not correct and this Court is satisfied that it needs interference. According to us, since appeal under Section 18 was not maintainable in procedural matters, Section 20 cannot be invoked and interference is possible only under Article 227 of the Constitution, if the circumstances warrant so. We have already held that even if Section 20 is applicable, jurisdiction under Article 227 is not lost. Even if jurisdiction under Article 227 is lost in view of alternate remedy under Section 20, this Court can interfere under Section 20 notwithstanding the fact that the petition is filed under Article 227 on the principle laid down by the Supreme Court in M/s. Pepsi's case (supra). In Baby v. Travancore Devaswom Board (1999 (1) KLT Short Notes Case No.1) Apex Court considered the correctness of the order of this Court where revision petition was filed under Section 103 of the Land Reforms Act. High Court interfered under Article 227 of the Constitution holding that relief pressed may not come strictly within the power under Section 103. Supreme Court held that even if the matter will not come strictly under Section 103. Supreme Court held that even if the matter will not come strictly under Section 103 of the Act High Court has power under Article 227 and no interference is called for notwithstanding the petitioner has invoked Section 103 of the Land Reforms Act only. Same principle would lie here also. In view of the above decision, the sole question to be considered is whether orders under challenge require interference and whether this Court can interfere with the matter, if not possible under Article 227, whether under Section 20 of the Rent Control Act. Now we may consider the merits.
8. The landlord filed the petition for eviction under Section 11(4)(iv) of the Act stating that the building is in such a condition that it need reconstruction. To get eviction under that section he has to prove that the present condition of the building is in such a way that it need reconstruction. He has already produced approved plan and licence. He has to prove that proposal is not malafide as a pretext for eviction. After completion he has to accommodate against the tenants in the reconstructed building. In all the five cases where joint trial is sought for, common ground is Section 11(4)(iv). All the above five rooms are parts of the same building. Therefore, evidence of the landlord will be the same in all these matters. Of course, during joint trial, each tenant can cross examine the witnesses of the landlord. It is true that in some cases other grounds are also taken by the landlord. In that he has to adduce evidence. Tenants also will be free to adduce evidence in defence on each specific grounds urged against them. NO prejudice is caused to the respondent by joint trial. In the judgment dated 29.3.2001 in Dr. N.K. Muraleedharan v. K.K.N. & Co. Jewellery (O.P.No. 29205 of 2000), one of us (Koshy, J.) while sitting single, considered the question how a joint trial application has to be considered when the landlord is the same and when there is common ground for eviction. In that case, landlord wanted the entire building for bonafide occupation. In the judgment dated 29.3.2001 it was held as follows:
"..What is to be considered by the Court is whether any prejudice is caused to the respondents if joint trial applications are allowed and is there any legal prohibition. Both are absent here. Convenience of the Court in disposal of cases also cannot be ignored. By allowing joint trial the tenants are not at al prejudiced. They can raise all defence allowed under law including the benefit of proviso to Section 11(3) of the Rent Control Act. They can adduce separate evidence and cross examine the witnesses of the landlord either jointly or separately. The entire defence have to be considered and issues have to be framed accordingly by the Court.....".
Here facts, all the more, is in favour of allowing a joint trial application as evidence regarding present condition of the building, approval of plan, licence etc. are the same. Allocation of the reconstructed building also more convenient for the tenants, if the cases are jointly tried. To avoid conflict of findings and save the time of the court also joint trial is convenient. In any event, respondents were not able to establish that any prejudice will be caused to them in any way, if joint trial is conducted except speedy disposal of the cases.
9. Respondents relied on the decision in Ebrahim Ismail Kunju v. Phasila Beevi (1991 (1) KLT 861). In that decision this Court was considering a case where there were two landlords and they filed the petition for joint trial. But in the above case it was held by the Court that Rent Controller has power to permit joint trial of the case. Every applications have to be decided on its own merit. In that decision it was also held that 'this Court has got power under Articles 226 and 227 of the Constitution to correct an error of this nature which has been brought to the notice of the Court'. We also note that another Division Bench of this Court recently in Abdul Azeez v. Sankaran (2002 (1) KLT 613), in a petition filed under Article 227 of the Constitution held that the Rent Control Court has inherent powers to direct joint trial of cases in the interest of justice where issues involved are the same. We also note that in Sulthan v. Mohannan (2000 (3) KLT 338) a Division Bench of this Court held that the there cannot be any objection to a single petition being maintained for eviction when the claim for reconstruction relates to the entire structure consisting of various buildings as defined in the Kerala Buildings (Lease and Rent Control) Act. In that case court relied on the decision of Justice Chandrasekhara Menon in Devassia v St. Marry's Ferona Church (1983 KLT 172) wherein drawing sustenance from O.I R.3 of the Code of Civil Procedure, the Court held that even a common petition can be filed if the landlord requires the entire building for reconstruction notwithstanding the fact that there are several tenants. We are told that, that issue is under consideration before the Full Bench. We are not considering the question whether a single petition can be filed for evicting several tenants on the same ground or not. Here the question is whether joint trial application can be entertained when the common ground urged by the same landlord is reconstruction of the building when the same building is let out in parts to several tenants and separate petitions were filed for eviction from the same building which the landlord wants to demolish and reconstruct. We also note that Justice M. Ramachanran in Smt. Rahna Kunhali and Anr. v. Kamalkashy and Ors. (O.P. No. 2241 of 2001) also by judgment dated 2.5.2001 held that when common ground of reconstruction is urged, the Court has to allow joint trial application. In fact, if joint trial application is not allowed, it may lead to injustice in multiplication of evidence, chance of conflicting findings, delay in disposal of matters, inconvenience to Court, difficulties not only to the landlord but also to the tenants (as reallocation of reconstructed building etc. has to be considered vis-a-vis all tenants). Therefore, when joint application for eviction of several tenants occupying rooms of same building owned by the same landlord is filed under Section 11(4)(iv) of the Act, the Rent Control Court ought to have allowed the application for joint trial.
Hence we set aside Exts. P1, P2 and the applications for joint trial, I.A. Nos. 1631, 1634, 6133, 6132 and 6134 of 1998 in R.C.P. Nos. 30, 70, 71, 69 and 67 of 1996 respectively are allowed. Since the Rent Control Petitions were filed in 1996, we direct the Rent Control Court to dispose of the petitions as expeditiously as possible.
The Original Petition is allowed.
A copy of this judgment be forwarded to the Rent Control Court by the Registry for compliance.