Kerala High Court
Mangada Susheela vs Thavarayil Balakrishnan on 26 November, 2013
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 28TH DAY OF JANUARY 2014/8TH MAGHA, 1935
RCRev..No. 13 of 2014 ()
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AGAINST THE JUDGMENT IN RCA 259/2010 of DISTRICT & SESSIONS
COURT,THALASSERY DATED 26-11-2013
AGAINST THE ORDER IN RCP 10/2009 of MUNSIF COURT, KUTHUPARAMBA
DATED 18-09-2010
REVISION PETITIONER(S)/SUPPL. RESPONDENTS 2 TO 5/LR'S OF RESPONDENT.:
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1. MANGADA SUSHEELA
W/O.LATE NANU @ NARAYANAN, THYKANDI HOUSE
KOTTAYAM AMSOM DESOM, THALASSERY TALUK.
2. MANGADAN LEELA,
D/O.LATE NANU @ NARAYANAN, KALLYAN, P.O.PATHAYAKUNNU
THALASSERY.
3. MANGADAN VINODAN,
S/O.LATE NANU @ NARAYANAN, THYKANDI HOUSE
KOTTAYAM AMSOM DESOM, THALASSERY TALUK.
4. MANGADAN SHEENA,
D/O.LATE NANU @ NARAYANAN, THYKANDI HOUSE
KOTTAYAM AMSOM DESOM, THALASSERY TALUK.
BY ADVS.SRI.K.P.SUDHEER
SRI.ARUN MATHEW VADAKKAN
RESPONDENT(S)/APPELLANTS/PETITIONERS:
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1. THAVARAYIL BALAKRISHNAN
S/O.KANARAN, KUNNUMMAL HOUSE, KUTHUPARAMBA AMSOM
NARAVOOR DESOM, P.O.KUTHUPARAMBA - 670 643
THALASSERY TALUK, KANNUR DISTRICT.
2. NARIKKODAN ROHINI,
D/O.KANARAN, KOTTIYODI, PATTIAM AMSOM DESOM
P.O.PATHAYAKKUNNU - 670 691, THALASSERY TALUK
KANNUR DISTRICT.
3. THAVARAYIL SREEDHARAN,
S/O.KANARAN, THAVARAYIL HOUSE, KUTHUPARAMBA AMSOM
NARAVOOR DESOM, P.O.KUTHUPARAMBA - 670 643
THALASSERRY TALUK, KANNUR DISTRICT.
RCRev..No. 13 of 2014
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4. THAVARAYIL SUKUMARAN,
S/O.KANARAN, SREESADAN, SIVAPURAM AMSOM
MALUR DESOM, P.O.MALUR - 670 702, THALASSERY TALUK
KANNUR DISTRICT.
5. THAVARAYIL PADMINI
D/O.KANARAN, SANAL NIVAS, KUTHUPARAMBA AMSOM
NARAVOOR DESOM, NARAVOOR DESOM
P.O.KUTHUPARAMBA - 670 643, THALASSERY TALUK
KANNUR DISTRICT.
6. THAVARAYIL BHASKARAN,
S/O.KANARAN, SALESMAN, KIZHAKKEPURAYIL HOUSE
KUTHUPARAMBA AMSOM, NARAVOOR DESOM
P.O.KUTHUPARAMBA - 670 643, THALASSERY TALUK
KANNUR DISTRICT.
7. THAVARAYIL GANGADHARAN,
S/O.KANARAN, ENGINEER
PERMANENTLY RESIDING AT KIZHAKKEPURAYIL HOUSE
KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA
THALASSERY TALUK AND PRESENT ADDRESS AT 8-A/22
SAGAR CO-OP. HOUSING SOCIETY, SECTOR-10
P.O.KOPPAR KHAIRNE, NAVI MUMBAI, DT.THANE
MAHARASHTRA, PIN: 400 709
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
THAVARAYIL SUKUMARAN, S/O.KANARAN
RESIDING AT SREESADAN, SIVAPURAM AMSOM, MALUR DESOM
P.O.MALUR - 670 702, THALASSERY TALUK.
8. THAVARAYIL VALSARAJAN,
S/O.KANARAN, EMPLOYEE IN KSIDC, KUTHUPARAMBA AMSOM
NARAVOOR DESOM, P.O.KUTHUPARAMBA - 670 643
THALASSERY TALUK, KANNUR DISTRICT.
CAVEATOR BY ADV. SRI..CIBI THOMAS
R1 -R 8 BY ADV. SRI.CIBI THOMAS
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
28-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
K.T.SANKARAN & P.UBAID,JJ.
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R.C.R. No.13 of 2014
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Dated this the 28th January, 2014
O R D E R
Sankaran,J.
The question involved in this revision is whether it is necessary for the tenant to file a memorandum of cross- objection against the finding of the Rent Control Court in favour of the landlord under the second proviso to Section 11 (3) of the Kerala Building (Lease and Rent Control) Act (for short 'the Act'), when the landlord challenges in appeal the order of the Rent Control Court holding that the landlord has not established the bona fide need under Section 11 (3) of the Act.
2. The rent control petition was filed by the landlord under Sections 11(2)(b) and 11 (3) of the Act. The Rent Control Court found that the landlord has not established the bona fide need put forward by him. The Rent Control Court also found that the tenant failed to establish the ingredients of second proviso to Section 11 R.C.R. No.13 of 2014 2 (3) of the Act. Accordingly, the Rent Control Petition was dismissed.
3. The landlord filed appeal before the Appellate Authority against the dismissal of the Rent Control Petition. The Appellate Authority reversed the finding of the Rent Control Court as regards the bona fide need put forward by the landlord in the Rent Control Petition. The Appellate Authority held that the landlord succeeded in establishing that the building is required for the use of the 4th petitioner before the Rent Control Court to run a hotel business. However, the Appellate Authority held that the tenant is not entitled to challenge the finding recorded by the Rent Control Court against him under the second proviso to Section 11 (3) of the Act, since the tenant did not file a Memorandum of Cross-objection in the Rent Control Appeal. This Rent Control Revision is filed by the tenant.
4. The 4th petitioner in the Rent Control Petition stated that he bona fide requires to run a hotel in the petition schedule building. He is aged 60 years. He stated that he was helping his father in his textile business. He has agricultural land. The 4th petitioner's wife also owns R.C.R. No.13 of 2014 3 agricultural land. The 4th petitioner stated in evidence that his father's sister owns about 5 to 8 acres of agricultural land and it was being managed by the 4th petitioner on behalf of the owner, and for that purpose, he was residing in the house of the relative of his wife.
5. The Rent Control Court held against the landlord on the question of bona fide need on the following grounds .
"In this context, it is pertinent to note that it is an admitted case of the petitioner that he is aged 60 years. In cross-examination he had categorically admitted that he is aged 60 years and he has no job or avocation at present. It is his definite case that he has no job at present and as was the situation in the past. So it is obviously clear that till today the petitioner has not done any job or avocation. Substantial portion of his life has been spent by him without any job or avocation. It is to be noted that there is no evidence forth coming to substantiate the reason for the change of mind of the 4th petitioner. What prompted him to think of an income earning venture in the late fifties is not clear from the evidence on record. There is absolutely no pleading in the petition regarding the same. There is no whisper in the petition why the 4th petitioner thought of a starting an income earning venture at this age of 60 years. It is pertinent to note that the petitioner has no case that he thought of an income earning venture because of his penury. He has no case that he wants to augment his income by starting a new venture. He has no case that now he realised the fact that he requires an avocation.R.C.R. No.13 of 2014 4
16. It is to be noted that it is not a case where an youngster thinking of starting an income earning venture. It is a case where a person who is in the late fiftees thinking of an income earning venture. In this context it is pertinent to note that PW1 has not done any job till he attains the age of 60 years. So it is quite clear that the need projected by the petitioner is only a ruse to evict the respondent........................
But here in this case we are concerned with the intention of the 4th petitioner. The question germane for consideration is whether the 4th petitioner actually intends to start the proposed business. The fact that he lead a jobless life till he attains the age of 60 years clearly indicates that he has no real intention to start the proposed business. So I am of the view that the need projected by the petitioner is not bona fide............................
Further to do hotel business some previous experience in that line is a must."
6. The Appellate Authority held, on facts, that the landlord has established the bona fide need put forward in the Rent Control Petition. The Appellate Authority also found that the reasons stated by the Rent Control Court for arriving at the aforesaid conclusion that the landlord failed to establish the bona fide need, are incorrect in law and on facts.
7. In Kurian K.Kuriakose v. Usha Cherian [ 2008 (1) KLT 739], a Division Bench of this Court held that R.C.R. No.13 of 2014 5 previous experience to conduct business is not necessary as a pre-condition for seeking eviction on the ground of bona fide need to conduct business.
8. That the 4th petitioner had no job or avocation at the time of giving evidence is not a ground to dismiss the Rent Control Petition. In fact, it is a ground to favourably consider his request to get vacant possession of the building for conducting a business. The finding arrived at by the Rent Control Court that all along the 4th petitioner was sitting idle without any job or avocation is factually wrong. Moreover, even if it is proved that for the last several years, the 4th petitioner was sitting idle, that does not mean that he should continue to sit idle till his death. The view of the trial court in this regard is perverse. The finding of the Rent Control Court that there is no reason for the petitioner to do a hotel business at the age of 60 years is also unsustainable. The mere fact that the landlord has attained 60 years is not a ground to hold that he cannot aspire to conduct a hotel business at that age. There is no age restriction in the matter of conducting business or in the matter of conducting hotel business. The Rent Control Court was not justified in R.C.R. No.13 of 2014 6 rejecting the petition on the ground that the 4th petitioner has attained the age of 60 years. The Rent Control Court erroneously thought that the landlord should establish that he changed his mind and decided to start a business. That is not a requirement under Section 11 (3) of the Act. The question that could be enquired into is whether the need projected by the landlord is a ruse for eviction. That the landlord decided to conduct a business at the age of 60 years, by itself, is not a ground to hold that the need is not bona fide. The Rent Control Court was also wrong in holding that the landlord should plead in the Rent Control Petition that at the age of 60 years, he has changed his mind and decided to conduct a hotel business. The finding of the Rent Control Court that the very fact that the 4th petitioner led a jobless life till the age of 60 years would clearly indicate that he has no real intention to start the proposed business, is also unsustainable. Even if a person does not indulge in any business till he attains the age of 60 years, there is no bar under any law that he should not do any business thereafter. The bona fide need put forward by the landlord cannot be doubted only on that ground.
R.C.R. No.13 of 2014 7
9. For the aforesaid reasons, we hold that the finding of the Rent Control Court that the landlord failed to establish the bona fide need, is incorrect and unsustainable. The Appellate Authority rightly reversed the finding of the Rent Control Court in that regard. No interference is called for under Section 20 of the Act, since the judgment of the Appellate Authority is not vitiated by any illegality, irregularity or impropriety.
10. We are of the view that the Appellate Authority was not right in holding that the tenant should have filed a Memorandum of Cross-objection challenging the finding against him under the second proviso to Section 11 (3) of the Act. Even in a civil proceeding before the Civil Court, Rule 22 of Order XLI enables the respondent in an appeal to challenge the finding of the trial court against him, while supporting the ultimate conclusion arrived at by the trial court. The respondent can do so in an appeal filed by the opposite party. He need not file a Memorandum of Cross- objection for that purpose. (See: Naseer Ahmed v. State Bank of Mysore [2007 (2) KLT 369]= AIR 2007 SC 989; Ravinder Kumar Sharma v.State of Assam [AIR R.C.R. No.13 of 2014 8 1999 SC 3571], Puthumana Meenakshi Amma v. Puthumana Kalliani Amma and Others [ILR 2010 (4) Ker. 449; Muhammad v. Chandrika 2010 (3) KLT 306].
11. There is no provision in the Act to prefer a Memorandum of Cross-objection in an appeal filed before the Appellate Authority. Section 18 of the Act provides for appeal. Sub-section (3) of Section 18 provides that the Appellate Authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard, and if necessary, after making such further enquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal. Sub-section (4) of Section 18 provides that the Appellate Authority shall have all the powers of the Rent Control Court including the fixing of arrears of rent. Section 20A of the Act confers power on the appellate and revisional authorities to remand the case for fresh disposal. Section 22 of the Act states that the provisions of Section 146 and Order XXII of the Code of Civil Procedure shall, as far as possible, be applicable to the proceedings under the Act. Under Section 23, the Rent Control Court and Appellate Authority shall R.C.R. No.13 of 2014 9 have the powers which are vested in a Court under the Code of Civil Procedure, in respect of the matters mentioned in clauses (a) to (k). The power of remand is specifically conferred on the Appellate Authority, which is one of the powers available to the Civil Court under Section 107 and Rules 23 and 23-A of Order XLI the Code of Civil Procedure. The finding under the second proviso to Section 11 (3) of the Act is not a separate order on any of the grounds in the Rent Control Act, but it constitutes a finding which forms part of an order under Section 11 (3) of the Act. When the Rent Control Court found that the landlord did not establish the bona fide need and also found that the tenant failed to establish the ingredients of the second proviso to Section 11(3) of the Act, the necessary consequence is dismissal of the Rent Control Petition. The tenant cannot file an appeal against the finding under the second proviso to Section 11 (3) of the Act, since the ultimate finding in the Rent Control Petition in respect of the ground under Section 11(3) is in favour of the tenant.
12. It is well settled that no appeal lies under the Code of Civil Procedure against the finding in a suit. It is R.C.R. No.13 of 2014 10 also well settled that normally when the ultimate decision in the suit is in favour of the defendant, he is not bound by the findings rendered therein in a subsequent suit, and those findings would not operate as res judicata. The tenant in the present case could not legally challenge the finding against him by filing an appeal. He could challenge it only in the appeal filed by the landlord against the order under Section 11 (3) of the Act. The tenant could do so by challenging the finding under the second proviso and at the same time, supporting the ultimate conclusion arrived at by the Rent Control Court, namely, dismissal of the Rent Control Petition. This the tenant can do without filing a Memorandum of Cross-Objection. The Appellate Authority was not justified in holding that the tenant having not filed a Memorandum of Cross-Objection, he could not challenge the finding against him under the second proviso to Section 11 (3) of the Act. We set aside that finding of the Appellate Authority.
13. The Hon'ble Supreme Court in K.A.Anthappai v. C.Ahammed [AIR 1992 SC 1696] held that passing of a decree of eviction by the Appellate Authority without considering whether the tenant was entitled to invoke the R.C.R. No.13 of 2014 11 protection of the second proviso to Section 11 (3) of the Act was not proper and hence the matter was remanded.
For the aforesaid reasons, we dispose of the Rent Control Revision and remand the case to the Appellate Authority as follows:
(i) The finding of the Appellate Authority that the landlord has established the bona fide need under Section 11 (3) of the Act is confirmed.
(ii) The finding of the Appellate Authority as regards the second proviso to Section 11 (3) of the Act is set aside. The Appellate Authority shall consider that question afresh, after affording an opportunity of being heard to the parties, as expeditiously as possible.
(iii) The parties shall appear before the appellate authority on 17th March, 2014.
(iv) The parties shall bear their respective costs.
Sd/-
(K.T.SANKARAN, JUDGE) Sd/-
(P.UBAID, JUDGE) ma /True copy/