Kerala High Court
G.Radha Lekshmy vs Indian Saree House on 2 April, 2014
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936
RCRev..No. 160 of 2012 ()
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RCA 12/2012 of RENT CONTROL APPELLATE AUTHORITY (I ADDL.DISTRICT COURT), ERNAKULAM
RCP 2/2010 of III ADDL. MUNSIFF AND RENT CONTROL COURT, ERNAKULAM.
REVISION PETITIONERS/RESPONDENTS/PETITIONERS :
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1. G.RADHA LEKSHMY,
AGED 69 YEARS, W/O.SHRI.GOPALAKRISHNA RAO, G-198,
KAVITHA, PANAMPILLY NAGAR, COCHIN-36.
2. G.HARIDAS,
AGED 46 YEARS, S/O.SHRI.GOPALAKRISHNA RAO, G-198
KAVITHA, PANAMPILLY NAGAR, COCHIN-36.
3. G.MURALEEDHARAN,
AGED 44 YEARS, S/O.SHRI.GOPALAKRISHNA RAO, G-249
PANAMPILLY NAGAR, COCHIN-36.
4. P.G.SEETHA LEKSHMY,
AGED 40 YEARS, W/O.HARIDAS, G-198
KAVITHA, PANAMPILLY NAGAR, COCHIN-36.
5. LATHA MURALEEDHARAN,
AGED 36 YEARS, W/O.MURALEEDHARAN, G-249
PANAMPILLY NAGAR, COCHIN-36.
BY ADV. SRI.K.P.SREEKUMAR
RESPONDENTS /APPELLANTS & 6TH RESPONDENT/RESPONDENTS :
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1. INDIAN SAREE HOUSE
BROADWAY, COCHIN-31
REPRESENTED BY ITS PARTNER I.S.UDAYA BHANU
AGED 48 YEARS, S/O.I.N.SIVARAMAN
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AMMINI SIVARAMAN
AGED 68 YEARS, ILLATHUPARAMBU, EROOR NORTH
TRIPUNITHURA, ERNAKULAM, PIN-682306.
2. I.S.UDAYA BHANU, AGED 48 YEARS,
S/O.I.N.SIVARAMAN
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AMMINI SIVARAMAN
AGED 68 YEARS, ILLATHUPARAMBU, EROOR NORTH
TRIPUNITHURA, ERNAKULAM, PIN-682306.
3. I.S.NISHANT,
S/O.I.N.SIVARAMAN, PARTNER, INDIAN SAREE HOUSE
BROADWAY, COCHIN-31.
R1 & R2 BY ADV. S SREEKUMAR(SENIOR)
R1 & R2 BY ADV.SRI.MARTIN JOSE
R1 & R2 BY ADV. SRI.P.PRIJITH
R1 & R2 BY ADV. SRI.THOMAS P.KURUVILLA
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02-04-2014, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.R.
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
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R.C.R. No.160 of 2012
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Dated 2nd April, 2014.
O R D E R
K.T.Sankaran, J.
The question that arises for consideration in this Rent Control Revision is whether a Rent Control Petition filed under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act') can be summarily rejected under Section 15 of the Act on the ground that the landlord did not press that ground in the earlier Rent Control Petition, in which Sections 11(3) and 11(8) were taken as the grounds for eviction.
2. The revision petitioners are the landlords of a building situated in Broadway, Ernakulam, in which the first respondent partnership runs a textile shop under the name and style 'Indian Saree House'. The learned counsel for the landlords submitted that the rent that is being paid by the tenant is only `250/- for an area of about 600 sq. ft. in a R.C.R. No.160 of 2012 2 building situated in the heart of Ernakulam City. The landlords filed R.C.P.No.154 of 2000 before the Rent Control Court, Ernakulam under Sections 11(2)(b), 11(3), 11(4)(i), 11(4)(ii) and 11(8) of the Act.
3. At the time of hearing, landlords submitted that they were pursuing only Section 11(3) and not Section 11(8) of the Act. The Rent Control Court allowed the petition under Section 11(3) and rejected the petition on other grounds. The landlords as well as the tenants filed appeals before the Appellate Authority. The Appellate Authority dismissed both the appeals. The tenant filed R.C.R.No.231 of 2005 before the High Court challenging the order and judgment of the authorities below under Section 11(3) of the Act. The said Rent Control Revision was disposed of by the judgment dated 12.6.2006. A contention was put forward by the tenants that the landlords having admitted that they are in occupation of a portion of the building, the ground under Section 11(3) would not be maintainable and eviction could be sought only under Section 11(8). That contention put forward by the tenants was R.C.R. No.160 of 2012 3 accepted by this Court in the judgment, which is reported in Indian Saree House v. Radhalakshmy (2006 (3) KLT 129). The High Court thought, in the peculiar circumstances of the case, that the landlords should be permitted to withdraw the submission made before the Rent Control court that they were not pressing the ground under Section 11(8). After holding thus, the High Court considered the bonafides of the claim under Section 11(8) and it was held that the landlords have made out the bonafides to found a claim under Section 11(8). However, the authorities below had not considered the question of comparative hardship under the first proviso to Section 11 (10) of the Act, which is a mandatory requirement while disposing of an application under Section 11(8). Therefore, the High Court remanded the case to the Appellate Authority for the purpose of considering the limited question of comparative hardship under the first proviso to Section 11(8) of the Act.
4. The judgment of the High Court was challenged by the tenants before the Supreme Court. The Supreme Court, in Civil Appeal No.521 of 2008 held that the landlords having R.C.R. No.160 of 2012 4 given up the ground for eviction under Section 11(8) of the Act, the High Court was not right in holding that the landlords had established their bonafides under Section 11(8). The Supreme Court set aside the order passed by the High Court, and the eviction petition filed by the landlords was dismissed.
5. Two years after the disposal of the appeal by the Supreme Court, the landlords filed R.C.P.No.2 of 2010, claiming eviction under Section 11(8) of the Act. The tenants entered appearance before the Rent Control court and contended that the Rent Control Petition is not maintainable in the light of Section 15 of the Act and the petition is liable to be summarily rejected under Section 15 of the Act. The Rent Control Court rejected the contentions put forward by the tenants and held that the Rent Control Petition is not hit by Section 15 of the Act. The order of the Rent Control Court was challenged in appeal by the tenants before the Rent Control Appellate Authority. The Appellate Authority reversed the order of the Rent Control Court and summarily rejected the Rent Control Petition under Section 15 of the Act. The Rent Control Court took the view that no R.C.R. No.160 of 2012 5 final adjudication was made in respect of the ground under Section 11(8) of the Act in the former proceedings and therefore, Section 15 will not apply. It was also held that if change of circumstances are made out, even a second application would be maintainable, though the earlier Rent Control Petition was dismissed on merits. The Rent Control Court held that the ground under Section 11(8) having been not pressed, there was no bar for filing a fresh Rent Control Petition. The Appellate Authority did not agree with the Rent Control Court on the question regarding the maintainability of the Rent Control Petition. The Appellate Authority also, without giving an opportunity to the parties to adduce evidence, held that there is no change of circumstances.
6. For the sake of convenience, it would be apposite to extract Section 15 of the Act :
"15. Decisions which have become final not to be reopened - The Rent Control Court shall summarily reject any application under sub-section (2), (3), (4), (5), (7) or sub-section (8) of section 11 which arises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or R.C.R. No.160 of 2012 6 purports to have been finally decided in a former proceeding under this act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded by such law."
7. In order to attract Section 15 of the Act, the following conditions are to be satisfied : (1) There must be a previous proceeding in which any of the grounds under sub sections (2),(3), (4), (5), (7) or (8) of Section 11 must have been claimed; (2) The former Rent Control Petition was between the same parties or between parties under whom they or any of them claim as in the subsequent Rent Control Petition; (3) The former and the subsequent Rent Control Petitions raise the same issues as between the parties; and (4) Those issues have been finally decided or purports to have been finally decided in the former proceedings.
8. It is well settled that each ground under Section 11 of the Act constitutes separate cause of action. It is also settled by the decisions of this court that the landlord would be entitled to file a second application, if there is change of circumstances. The principles of constructive res judicata or R.C.R. No.160 of 2012 7 Order II Rule 2 of the Code of Civil Procedure may not apply to such subsequent proceedings, over and above the scope of Section 15 of the Rent Control Act. Sub rule (4) of Rule 1 of Order XXIII of the Code of Civil Procedure also would not apply in the matter of application of Section 15 of the Act with respect to the maintainability of a subsequent application. It is settled by the decisions of this Court that Section 15 of the Act contains more or less similar provisions as contained in Section 11 of the Code of Civil Procedure.
9. The first question to be considered is whether there was a final and conclusive decision under Section 11(8) in the former proceedings. In the former proceedings, the landlords put forward the grounds under Sections 11(3) and 11 (8) of the Act. It is well settled by the decision of the Supreme Court in S.R.Babu v. T.K. Vasudevan [(2001)8 SCC 110] = (2001(3) KLT 468 SC) that the grounds under Sections 11(3) and 11(8) are mutually exclusive. In S.R.Babu's case (supra), the Supreme Court considered the distinction between Section 11(3) and Section 11(8) of the Kerala Act and held thus : R.C.R. No.160 of 2012 8
"11. A perusal of sub-s. (8) makes it clear that to invoke this sub-section the landlord must show that: (i) he is occupying only a part of the building; (ii) the tenant is occupying the whole or a portion of the remaining part; and (iii) the landlord requires the additional accommodation for his personal use.
12. The following is the distinction between sub-s. (3) and sub-s. (8) of S. 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-s. (8) of S. 11 and not under sub-s. (3) of S. 11 of the Act."
10. Though the landlords had secured an order of eviction under Section 11(3) of the Act by the order and judgment of the Rent Control Court as well as the Appellate R.C.R. No.160 of 2012 9 Authority in the former proceedings, the High Court in revision held that in the admitted facts of that case, the ground under Section 11(3) was not maintainable and only a ground under Section 11(8) would be attracted. Such a finding was arrived at based on the judgment of the Supreme Court in S.R.Babu's case (supra). However, since the landlords had not pressed the ground under Section 11(8) before the Rent Control Court in the former proceedings, the High Court permitted them to withdraw the request for not pressing the ground under Section 11(8) and considered the bonafides under Section 11(8) on the merits. The Supreme Court set aside the judgment of the High Court on the ground that the landlords having not pressed the ground under Section 11(8), the High Court was not justified in resurrecting the same. That means, there was no consideration of the grounds under Section 11(8) on the merits, in view of the judgment of the Supreme Court.
11. There is another test to consider the question whether the ground under Section 11(8) was considered on the merits. In the former proceedings, even after finding that the R.C.R. No.160 of 2012 10 bonafides under Section 11(8) had been established by the landlord, the High Court remanded the case to the Appellate Authority to consider the case under the first proviso to Section 11(10) of the Act. The Supreme Court set aside the order of the High Court. Therefore, there was no occasion for any court to consider the question of comparative hardship under the first proviso to sub section (10) of Section 11. An order under Section 11(8) would not be complete without considering the comparative hardship between the parties as mentioned in the first proviso to Section 11(10) of the Act. This position is well settled in the decision in Davis v. Sebastian (1999(3) KLT 225 (SC) = (1999)6 SCC 604), wherein the Supreme Court held that relief under Section 11(8) cannot be granted to the landlord without recording a finding under the first proviso to sub section (10) of Section 11 of the Act in favour of the landlord. The same view was taken in AMMINI v. AMMU (1986 KLT
846) where it was held that as Section 11(8) is intertwined with Section 11(10) and the first proviso therein, there must be definite finding regarding the comparative hardship. There R.C.R. No.160 of 2012 11 may be a case where the landlord has established his bonafides with regard to his claim under Section 11(8). It was held that from that alone, the court cannot jump to the conclusion that the petition has to be allowed for additional accommodation.
12. For the aforesaid reasons, we hold that the ground under Section 11(8) of the Act was not finally decided in the former proceedings.
13. In Govindan v. Subaida Beevi (1997 (1) KLT
910), a Division Bench of this Court held that each of the sub sections of Section 11 would furnish separate causes of action for eviction and the landlord will be entitled to claim eviction on all or any of the grounds so available to him at any point of time. It was held thus :
"12. The earlier application in this case was one filed admittedly under S. 11(2) and 11(3) of the Act alone. There was no claim for eviction put forward under S. 1 l(4)(iii) of the Act or under any of the sub-clause of sub-s. (4) of S. 11 of the Act in the earlier application, though a claim under S. 11 (4)(iii) could have been included by the landlady in that application. As no claim for eviction on the ground mentioned in S. 11 (4)(iii) was made in the R.C.R. No.160 of 2012 12 earlier petition there was no occasion for the tenant also to controvert the same and invite a decision on that ground one way or other. In fact also no decision was rendered on the question whether eviction is liable to be ordered or not under S. 11 (4)(iii) of the Act also. A mere reading of the various provisions contained in S. 11 of the Act especially those contained in sub-ss. (2), (3), (4), (5), (7) & (8) mentioned specifically in S. 15 would,show that each of the grounds mentioned in those sub-sections would constitute separate causes of action for claiming eviction. Sub-s. (4) further deals with 5 separate grounds for eviction each of which may again furnish separate and independent cause of action to the landlord to claim eviction. It is important to note in this connection that though the landlord may be entitled to get eviction on the basis of all or any of the grounds mentioned in the various subsections the nature and content of the relief of eviction is not identical in all the cases. Orders of eviction on different grounds mentioned under different sub-clauses of S. 11 can be passed only subject to different conditions mentioned under various provisions of the Act itself. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
13. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x R.C.R. No.160 of 2012 13 x x xx If that be the correct legal position it may not be possible to hold that a landlord having different and independent causes of action to claim eviction of a building is bound to include all such causes of action in one application itself and that if he omits to include any one of such independent causes of action in any application filed on the basis of some other cause of action he will be precluded from claiming eviction by filing a fresh application based oh such omitted cause of action after an adverse finding is rendered in the earlier application. For, we find that the doctrine of constructive res judicata may not have application to such a case."
14. In Vasu v. Varghese (2007 (4) KLT 1013), a Division Bench of this Court considered the scope and ambit of the expression "purports to have been finally decided"
occurring in Section 15 of the Act. In Vasu v. Varghese(supra), the landlord filed a petition under Section 11(2)(b) and Section 11(3) of the Act. That petition was dismissed as not pressed. Later, he filed another Rent Control Petition under Sections 11 (2)(b) and 11(3). The tenant raised a contention that dismissal of the former petition on identical grounds is a bar to maintain the second petition. Relying on the decision of the Supreme Court in N.R. Narayan Swamy v. Francis Jagan (AIR 2001 R.C.R. No.160 of 2012 14 SC 2469), it was held that the bonafide requirement or non-
payment of rent is a recurring cause of action and therefore, the landlord is not precluded from instituting fresh proceedings. The Division Bench in Vasu v. Varghese (supra) held that the meaning of the expression "purports to have been decided" is that the decision in a former proceeding should reflect a final decision on the issues raised and it was not a dismissal on technical ground like "not pressed". As the word "purports" also indicates a proper decision as having been arrived at by the court, the contention that it would take dismissal as not pressed cannot be accepted. In Pius v. Albina Rozario (1990 (1) KLT 104), the former application was dismissed for default and it was held that the second application for eviction would be maintainable as there was no final decision when the application was dismissed for default.
15. In the former Rent Control Petition, the landlords put forward certain facts to found the claim under Section 11 (8). In the present Rent Control Petition, some more facts are stated to reinforce the claim under Section 11(8). The question R.C.R. No.160 of 2012 15 whether there is change of circumstances is a matter to be considered on evidence. However, the Appellate Authority erroneously thought, after referring to the former and the present Rent Control Petitions that there is no change of circumstances, which is quite unsustainable. In fact, the question of change of circumstances does not really arise in this case, if otherwise, Rent Control Petition is not hit by Section 15 of the Act. We are of the view that the present Rent Control Petition is not barred by Section 15 of the Act for the reasons mentioned above.
For the aforesaid reasons, we allow the Rent Control Revision, set aside the judgment of the Appellate Authority and restore that of the Rent Control Court.
Sd/-
K.T.SANKARAN, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs (true copy)