Kerala High Court
Soonam Jose vs K A Antony on 27 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 27TH DAY OF JUNE 2024 / 6TH ASHADHA, 1946
RCREV. NO. 292 OF 2019
AGAINST THE JUDGMENT DATED 07.02.2018 IN RCA NO.10 OF 2016
OF (RENT CONTROL APPELLATE AUTHORITY) ADDITIONAL DISTRICT
COURT & SESSIONS COURT - VII, ERNAKULAM ARISING OUT OF THE
ORDER DATED 23.12.2015 IN RCP NO.168 OF 2010 OF III
ADDITIONAL MUNSIFF & RENT CONTROL COURT, ERNAKULAM
REVISION PETITIONER/RESPONDENT/RESPONDENT :
SOONAM JOSE, W/O. E.S.JOSE, ERASSERIL HOUSE,
KALOOR P.O., ERNAKULAM, A2Z SANITARY WARES,
P.T.USHA ROAD, ERNAKULAM, KOCHI-11
BY ADVS. K.PAUL KURIAKOSE
SRI.BASIL MATHEW
RESPONDENT/APPELLANT/PETITIONER :
K A ANTONY S/O. AUGUSTINE, BUSINESS,
KALLUVEETTIL HOUSE, JAISON BULDING,
P.T.USHA ROAD, ERNAKULAM, KOCHI-11
BY ADVS. SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
27.06.2024, ALONG WITH RCRev..293/2019, 294/2019, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
R.C.R Nos.292, 293 and
294 of 2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 27TH DAY OF JUNE 2024 / 6TH ASHADHA, 1946
RCREV. NO. 293 OF 2019
AGAINST THE JUDGMENT DATED 07.02.2018 IN RCA NO.11 OF 2016 OF
(RENT CONTROL APPELLATE AUTHORITY) ADDITIONAL DISTRICT COURT &
SESSIONS COURT - VII, ERNAKULAM ARISING OUT OF THE ORDER DATED
23.12.2015 IN RCP NO.167 OF 2010 OF THE III ADDITIONAL MUNSIFF &
RENT CONTROL COURT, ERNAKULAM
REVISION PETITIONER/RESPONDENT/RESPONDENT:
THOMAS ANSALAM
S/O JOSEPH SAMUEL, A2Z SANITARY WARES,
P.T.USHA ROAD,ERNAKULAM, KOCHI-11.
BY ADVS. K.PAUL KURIAKOSE
SRI.REJI GEORGE
RESPONDENT/APPELLANT/PETITIONER:
K A ANTONY, S/O AUGUSTINE,
BUSINESS, KALLUVEETTIL HOUSE,JAISON BUILDING,
P.T.USHA ROAD, ERNAKULAM, KOCHI-11.
BY ADVS. SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
27.06.2024, ALONG WITH RCRev..292/2019 AND CONNECTED CASES AND
CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
R.C.R Nos.292, 293 and
294 of 2019 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 27TH DAY OF JUNE 2024 / 6TH ASHADHA, 1946
RCREV. NO. 294 OF 2019
AGAINST THE JUDGMENT DATED 07.02.2018 IN RCA NO.12 OF 2016 OF
(RENT CONTROL APPELLATE AUTHORITY) ADDITIONAL DISTRICT COURT &
SESSIONS COURT - VII, ERNAKULAM ARISING OUT OF THE ORDER DATED
23.12.2015 IN RCP NO.166 OF 2010 OF THE III ADDITIONAL MUNSIFF &
RENT CONTROL COURT, ERNAKULAM
REVISION PETITIONER/RESPONDENT/RESPONDENT::
E S JOSE, AGED 62 YEARS,
S/O SOLAMAN,ERASSERIL HOUSE, KALOOR.P.O,
ERNAKULAM,A2Z SANITARY WARES,P.T.USHA ROAD,
ERNAKULAM, KOCHI-11.
BY ADVS. K.PAUL KURIAKOSE
SRI.T.A.RAFEEK (CHERTHALA)
RESPONDENT/APPELLANT/PETITIONER::
K A ANTONY S/O.AUGUSTINE,
BUSINESS,KALLUVEETTIL HOUSE,JAISON BUILDING,
P.T.USHA ROAD,ERNAKULAM, KOCHI-11.
BY ADVS. SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
27.06.2024, ALONG WITH RCRev..292/2019 AND CONNECTED CASES AND
CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
R.C.R Nos.292, 293 and
294 of 2019 4
AMIT RAWAL & EASWARAN S. , JJ.
-------------------------
R.C.R Nos.292, 293 and 294 of 2019
-----------------------------------
Dated this the 27th day of June 2024
ORDER
This order of us shall dispose of three Rent Control Revisions preferred by the three tenants in a scheduled building taken on rent in the year 1986, who have not been successful in defending the appeal preferred by the landlord seeking eviction on the ground of arrears of rent. Though the ground of personal necessity also was taken before the rent control as ground of ejectment, but given up later on.
2. The controversy between the parties has a little checkered history, the details of which are extracted hereunder:
2.1. Vide agreement dated 24.02.1992, a trust, by name Ernakulam Taxi Drivers Union Trust had entered into an agreement (Built, Operate and Transfer, BOT in short) with Sri.K.A. Antony who was given permission to raise the R.C.R Nos.292, 293 and 294 of 2019 5 construction of four storied building with a permission to let out three stories as 4th floor was agreed to be retained for the trust. Clause 4 of the aforementioned agreement limited the period of BOT for 15 years. Clause 5 also entitled the parties to the agreement to enter into fresh agreement for payment of 75% of the rent by Sri.Antony to the trust.
2.2. By virtue of the power given in the agreement referred above, by an executor, that is the Trust, Sri.K.A.Antony leased out the premises to various tenants including the petitioners herein.
2.3. In 2001, rent petition was instituted at the instance of Sri.K.A. Antony for claiming arrears of rent as provided under Section 11 (2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, in respect of one tenant, namely, E.S Jose, the petitioner in RCR No.294/2019. In the aforementioned proceedings, the tenant raised objection with regard to the title of Sri.K.A. Antony in claiming the rent owing to the fact that the period of 15 years by that time ceased to exist and therefore, the R.C.R Nos.292, 293 and 294 of 2019 6 relationship of the landlord/tenant did not subsist. The aforementioned litigation was decided in favour Sri.K.A.Antony led to appeals, one of which is bearing No.13/2005 which was also dismissed. The matter did not rest here and it came before this Court vide R.C.R. No.31 of 2006 titled as E.S Jose Vs K. Antony. The argument with regard to the relationship of the tenant was deprecated/rejected and it was held that the relationship of the tenants vis a vis Sri. K.A.Antony would continue to be as a landlord and they would pay the rent. The aforementioned revision petition was disposed of by order dated 19.6.2007. The matter was taken up before the Honourable Supreme Court in S.L.P No.18176-18177 of 2007, which was dismissed.
2.4. Sri.K.A Antony again instituted various rent petitions. The relevant cases for adjudication in the present litigations are R.C.P. Nos.166, 167, and 168 of 2010 seeking arrears of rent and as well as personal necessity as provided under Section 11(2)(b) and 11(3) of the Act.
R.C.R Nos.292, 293 and 294 of 2019 7 2.5. The petitioners tenants objected the said claim by challenging the title of Sri. K. A.Antony on the premise that he had no locus to institute the rent petitions and claim rent in view of the expiry of the period of 15 years, which according to them, expired in 2001 and, moreover, though they continue to pay the rent to Sri.K.A.Antony till 2003, but thereafter stopped paying the rent owing to the receipt of Ext.B6 notice by the Trust which is dated 10.3.2003. The tenants were in arrears of rent which gave a cause of action to Sri. K.A.Antony to institute subsequent rent petitions bearing Nos.166, 167 and 168 of 2010 claiming the arrears of rent for a particular period as also under section 11(3). In the same very proceedings, the petitioners/tenants raised objection of title on the premise of the expiry of the period of 15 years in 2001, though they continued to pay the arrears of rent in 2003. However, during the pendency of the proceedings before the Rent Controller, plea of bonafide need was given up. The learned rent controller vide common judgment dated 23.12.2015 rejected the ejectment R.C.R Nos.292, 293 and 294 of 2019 8 petitions, upholding the denial of title.
2.6) The matter was taken up before the appellate authority in RCA Nos.10, 11 and 12 of 2016. The appellate authority by relying upon various judgments in terms of Sections 41 to 44 of the Indian Evidence Act, reversed the findings and held that there has already been an adjudication with regard to the relationship of the landlord and tenant and also the fact that a civil suit bearing No.920 of 2012 preferred by the trustees against the said Sri.K.A.Antony and the tenants claiming different reliefs, the details of the same would be given in the later part of the judgment, which was also dismissed by a decree and judgment dated 21.8.2017.
3. Sri.Paul Kuriakose K, the learned counsel, in support of the contentions, submitted that there is no estoppel to the tenants not to deny the title of the landlord whenever there is a threat of eviction by the person claiming a paramount title. In the instant case, by virtue of the notice dated 10.3.2003 (supra) there was a threat of eviction by the paramount title R.C.R Nos.292, 293 and 294 of 2019 9 holder that is the trust itself and it is in those circumstances, the tenants were in predicament and had no other choice though provisions of Section 10 could have been invoked but were not properly advised and were impelled to face the litigation at the instance of Sri. K.A.Antony.
4. The terms and conditions of the BOT has been placed on record at the instance of Sri. K.A.Antony did not entitle him to claim the rent/eviction on the grounds permissible under the Rent Act. There had been a change of circumstances in the previous round of litigation which began as far back as in 2001 and by that time the petitioners/tenants had not received the notice by the trust. The notice came only in 2003 and the 2 nd round of litigation commenced only in the year 2010.
5. No doubt, the previous judgments would be applicable but they would be only on account of the facts which were in existence at the relevant point of time but not in view of the subsequent events as explained above.
6. In support of the contentions the learned counsel R.C.R Nos.292, 293 and 294 of 2019 10 relied upon by the ratio decidendi culled out by the Honourable Supreme Court in D Sathyanarayana v. P Jagdeesh [AIR 1987 SC 2192]. The Rent Controller dealt with each and every document placed on record in extenso, particularly Ext.P7 series to show that from 2004 onwards the petitioners/tenants had been paying rent by way of cheque in the account of the trust. The said payment was made on the ground of Execution of lease deed dated 28.3.2003 between the tenants and the trust. Sri.K.A Antony in civil suit bearing No.920 of 2012 appeared as AW 19(a) and suffered a statement claiming his status to be of an agent. An agent cannot be a landlord in view of the provisions of Sub clause (C) of Section 11 of the Act. Before concluding the argument, Mr. Paul Kuriakose K, the learned counsel informed the Court that as a precautionary measure, all the three tenants had deposited the arrears of rent pertaining to the period claimed in the eviction petition which was to the tune of Rs.14,20,000/-.
7. Ms.Anagha Lakshmi Raman, the learned counsel R.C.R Nos.292, 293 and 294 of 2019 11 representing the respondents countered the aforementioned arguments on the ground that there had already been a finding of fact and law with regard to the relationship of the landlord and tenant in the earlier round of litigation much less the suit preferred by the trustees had also been dismissed where various grounds with regard to prohibitory injunction, injuncting the attorney, claiming the declaration, declaration and mandatory injunction for realizing the rent, were negatived.
8. The ratio decidendi relied upon by the petitioners would not be helpful for, there was no such perceptible threat of eviction at the hands of the trust and perhaps it could not have been, as there is already a finding and the trust has not been able to overcome the finding. The finding in the suit by judgment and decree dated 21.8.2017 had attained finality. All these factors except judgment and decree (ibid) though were on the record of the Rent Controller but were not examined threadbare. It is in those circumstances the appellate authority being the last court of facts and law re-appreciated the evidence and rendered the R.C.R Nos.292, 293 and 294 of 2019 12 findings and therefore there is no illegality and perversity to form a different opinion. The cheques would not show that the rent had been acknowledged by the trust as there is no such receipt. In other words, the deposit of the cheque was a unilateral act.
9. We have heard the learned counsel for the parties and perused the records.
10. There is no quarrel to the consideration of the previous judgment between the parties to the lis for arriving at a just, equitable and fair decision in a subsequent round of litigation.
11. As noticed above, on institution of the petition in 2001 claiming arrears of rent, the matter reached this Court in RCR No.31 of 2006. Noticing the contentions of the parties the learned Division Bench of this Court arrived at the following conclusion:
"The question to be decided in R.C.R. Nos.20/04, 21/04 and 22/04 is one and the same. When the respondent in these revisions filed rent control petitions for evicting the tenants, they rained objection denying the title and contended that R.C.R Nos.292, 293 and 294 of 2019 13 they can be evicted only thrones the civil court in view of the second proviso to Section 11(1) of the Kerala Building (lease and Rent Control) Act, 1965, which reads as follows:
"Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded."
The Rent Control Court found the plea of denial of title is bona fide. Hence, the rent control petitions were dismissed. The matter went in appeal. The appellate authority found that the dispute is not bona fide. The appellants entered into a tenancy arrangement with the respondent is not disputed. The land, where the petitioner's son's building is situated, was owned by a Trust called Taxi Drivers' Union Trust. The land was entrusted to the respondent for constructing a building on condition that after completion of the building it cannot be alienated, but it can be given on rent for fifteen years. After fifteen years a new document will have to be executed, if it is further given on rent, after deducting 10% for repairing expenses the payment of tax, out of the balance amount, R.C.R Nos.292, 293 and 294 of 2019 14 only 25% can be retained by the respondent and 75% should be given to the land owner. This arrangement is clear from Exhibit A1 produced by the landlord himself. After fifteen years, if no new document is executed and that part of the rent in the ration fixed is not paid to the land owner, the dispute will be between the land owner and the landlord of the petitioners. But, the fact that the revision petitioners took the building on rent from the land owner is undisputed and they are tenants under the respondent. After fifteen years of completion of construction, if 75% of the rent collected is not given to the land owner, perhaps, there may be dispute between the land owner and the respondent. But, as far as the petitioners are concerned, the respondent is the landlord. Tenant landlord relationship is not disputed. Mere denial of title is not enough to oust the jurisdiction of the Rent Controller. Only if denial of title is bona fide, the Rent controller can dismiss the petition. The obligation of the petitioners to pay rent as per the lease agreement is to the respondent. Since that is admitted, we agree with the views of the appellate authority and these revisions are dismissed.
2. During the pendency of the revision petitions, this Court ordered trial can be continued. The Rent Control Court ordered eviction under Section 11(2) (b) of the Act. That was upheld by the appellate authority also. Hence, R.C.R.Nos. 30/06, 31/06 and 33/06 were filed. The fact that the rent is not pald is not disputed.
In these circumstances, there is no merit in these revisions. All the revisions are dismissed."
R.C.R Nos.292, 293 and 294 of 2019 15
12. The tenants though were bewildered having received the notice from the trust dated 10.3.2003 and also executed a lease deed in 2003, ought to have sought the indulgence of the court by invoking the provisions of Section 10 of the Act, which reads as under.
10. Right of tenant to deposit rent in certain cases.-- (1) Where the address of the landlord or his authorised agent is not known to the tenant, he may deposit the rent lawfully payable to the landlord in respect of the building together with such fee as may be prescribed for the service of the notice referred to in sub-section (2) before such authority and m such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building, together with the fee prescribed, as aforesaid, before the same authority and in the same manner until the address of the landlord or his authorised agent becomes known to the tenant.
(2) The rent so deposited may, subject to such conditions as may be imposed by the Rent Control Court, be withdrawn by the landlord or his authorised agent, on application to the Court.
(3) Where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building, the tenant may deposit such rent before such authority and in such manner as may be prescribed and R.C.R Nos.292, 293 and 294 of 2019 16 shall report to the Rent Control Court the circumstances under which such deposit was made by him, and 'may continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner until the doubt is removed or the dispute is settled by the decision of a competent Court or by a settlement between the parties or until the Rent Control Court makes an order under clause
(b) of sub-section (4), as the case may be.
(4) (a) The Rent Control Court to whom a report is made under subsection (3) shall, if satisfied that a bona fide doubt or dispute exists in the matter, direct that, pending removal of the doubt or settlement of the dispute as aforesaid, the deposit be held by the authority concerned.
[b) If the Rent Control Court is not so satisfied, it shall forthwith order payment of the amount deposited to the landlord.
(5) (a) Where the Rent Control Court passes an order under clause (a) of sub-section (4), any amount or amounts deposited under sub-section (3) may be withdrawn only by the person who is declared by a competent Court to be entitled thereto, or in case the doubt or dispute is removed by a settlement between the parties, only by the person who is held by the Rent Control Court to be entitled to the amount or amounts in accordance with such settlement.
(b) An order passed by the Rent Control Court under clause (b) of sub-section (4) shall not debar the aggrieved R.C.R Nos.292, 293 and 294 of 2019 17 party from establishing his claim in any competent Court.
13. Having not done so, of course their predicament was writ large and under the legal advise, had again objected to the title of the landlord. As per the definition of the landlord it is settled law that the landlord need not be the owner. The ratio decidendi culled out in the judgment referred to above was the case where there was a perceptible threat at the instance of a paramount title holder. However, there was no such previous litigation as noticed above. In view of the findings already rendered by this Court even if there was a perceptible threat, the remedy was either to invoke Section 10 or as and when the ejection petition had been filed, object its maintainability by taking recourse to the provisions of the law. Having not done so but contested the matter, have of course resulted into an ejectment finding by the appellate authority.
14. The trustees during the subsistence of the rent petition before the rent controller, instituted Original Suit No.920 of 2012 and claimed prayers which were carved out R.C.R Nos.292, 293 and 294 of 2019 18 in the issues as the parties to the litigation were at variance. The issues in the aforementioned suit framed by the trial court are extracted hereinbelow:
1. Whether the prayer for declaration that agency granting by the plaintiff to the 1 st defendant stands terminated w.e.f. 20/9/2012 is allowable.
2. Whether the prayer for prohibitory injunction restraining the 1st defendant from exercising any right with ground floor, first floor and second floor of the scheduled building is allowable?
3. Whether the prayer for directing the 1 st defendant to furnish full accounts for the amount from 1/1/2004 till 30/9/2012 with respect to the rent of the ground floor, first floor and second floor is allowable.
4. Whether the prayer for directing the 1 st defendant to pay any amount to the plaintiff is allowable?
5. Whether the prayer for mandatory injunction against the defendants 2 to 8 to pay future interest is allowable?
6. Whether the prayer for restraining 1 st defendant from withdrawing the amount deposited by 2nd defendant in RCOP 166/2010 to 168/2010 is allowable.
R.C.R Nos.292, 293 and 294 of 2019 19
7. Reliefs and costs?
15. It may not be out of place to mention herein that in the aforementioned suit, not only the Sri.Antony but all the tenants in the building were arrayed as defendants whereas the present petitioners were arrayed as defendant Nos.2, 9 and 10. The trial court rendered the finding on all issues against the plaintiffs. However, it would be also expedient to extract the observations noticed by the rent controller in para Nos.27, 28 and 30 and 31.
27. The plaintiffs would contend that on expiry of 15 years, the building will automatically devolve on the trust with its ownership and the 1st defendant's continued use therein is purely as an agent which is terminable by issuing termination notice in writing and his right to continue in the premise as per clause (5) shall be only on executing separate agreement and as such, no Agreement was executed, so that the plaintiffs are capable to terminate the agency by sending written notice.
R.C.R Nos.292, 293 and 294 of 2019 20
28. The 1st defendant on the other hand would claim that 5th clause empowers him to continue in using the first three floors of the building even after 15 years subject to pay a specified sum based on annual rent fixed by local authority to those leased out rooms and he could continue to use the building by paying said amount and able to pay the said amount till refused by the trustees in receiving the same.
xx
30. A close reading of these stipulations together make it clear that the construction cost met by him and that interest in the subject matter expired on completion of that 15 years. Still further stipulation in Ext.A2 enable the 1st defendant to continue in use thereafter by paying specified sum to the trustees and only on default of making payment of three months rent, the trust can maintain legal action to evict the 1st defendent and other tenants inducted by the 1st defendant. That be so, such agency cannot be terminated by issuing notice of termination and such jural relationship cannot be treated as pure agency terminable on issuing notice in writing. So the plaintiff cannot get a declaration that said agency stands terminated w.e.f 20/9/2012.
31. At the same time the first defendant cannot claim any benefit of irrevocable agency as the unqualified interest R.C.R Nos.292, 293 and 294 of 2019 21 created on the building in the plaint schedule property is only up to 15 years time period after the completion the building construction and thereafter the interest is qualified and limited to continue therein as long as paying rent with out making default for continuous three months. In other words, the irrevocable agency confined to the first 15 years time period and thereafter liable for eviction in case of default in payment of rent for continuous three months.
16. No doubt the suit was decided after the decision of the RCP and the same was placed before the appellate authority. The said judgment was the basis for reversing the findings. We have been informed that the aforesaid judgment had attained finality. In these circumstances, we are in agreement with the findings rendered by the appellate authority that there existed a relationship of landlord and tenant between the parties to the lis. We have been taken to the order of this court in these revisions, dated 16.12.2019 and in RCR.292/19 dated 4.11.2022 whereby permission was granted to the respondent- landlord to withdraw the amount lying in deposit of the trial court, around R.C.R Nos.292, 293 and 294 of 2019 22 Rs.13,40,000/-.
17. Since we have already determined the relationship of landlord-tenant between the parties, it would be appropriate for us to afford an opportunity to the tenants by granting time to clear all the admitted arrears of rent . For the purpose of adjudication of the arrears of rent, we remand the matter back to the trial court to decide the aforementioned issue as expeditiously as possible by affording an opportunity of hearing to the parties within a period of four months. The parties shall appear before the trial court on 22.7.2024.
Revisions are disposed off.
Sd/-
AMIT RAWAL, JUDGE Sd/-
NS EASWARAN S., JUDGE