Kerala High Court
P.Kunhamu vs Arun Kumar K on 23 July, 2010
Bench: Pius C.Kuriakose, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 189 of 2008()
1. P.KUNHAMU, S/O ANDRU, RESIDING AT
... Petitioner
Vs
1. ARUN KUMAR K.,
... Respondent
2. G.A. MOHAMMED MUSTAFA,
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.BECHU KURIAN THOMAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :23/07/2010
O R D E R
CR
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. Nos.189 and 202 of 2008
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Dated this the 23rd day of July, 2010
O R D E R
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Pius C.Kuriakose,J.
The one and perhaps the only important issue which arises for decision in this revision under Section 20 of Act 2 of 1965 is, whether the single Rent Control Petition instituted by the respondents for evicting the revision petitioners two tenants occupying two rooms in a larger building, on the ground under Section 11(3) of the Act, is maintainable? The revision petitioner in RCR.189/2008 at the earliest opportunity itself raised the contention that the Rent Control Petition is not maintainable in law as the landlord has instituted a single Rent Control Petition for evicting himself and another tenant, who were governed by two different tenancies. The above contention did not find favour with either the Rent Control Court or the Appellate Authority. The Rent Control Court and the Appellate Authority after appreciating the evidence adduced by the parties, came to the conclusion that the need RCR.189& 202 of 2008 2 which was projected by the landlord in the context of the ground under sub-section 3 of Section 11 was a bonafide one and that both the tenants, who were arrayed as co-respondents in the RCP were unsuccessful in establishing that they were eligible for the protection of the second proviso to Section 11 (3). Accordingly order of eviction was passed against both of them.
2. Sri.K.G.Gowri Shankar Rai, learned counsel for the revision petitioner in RCR.No.189/08 would place strong reliance on the order of the Full Bench in Jamal Vs. Safia Beevi (2005 (2) KLT 359 (FB)) and submit that in view of the above decision of the Full Bench it has to be held that the Rent Control Petition is bad for misjoinder of causes of action and misjoinder of parties and hence not maintainable in law. Mr. Gowri Shankar Rai was supported in all his submissions by Sri. Jayesh Mohankumar, who appeared for revision petitioner in RCR.No.202/08.
3. In fact the order of the Full Bench in Jamal Vs. Safia Beevi (cited supra) was cited before the Appellate Authority also. But the said authority, after discussing the Full Bench order, would take the view that the Full Bench decision did not RCR.189& 202 of 2008 3 apply to the facts which obtained in the case.
4. All the submissions of Mr.Gowri Shankar Rai and Mr. Jayesh Mohankumar were resisted by Mr.Paul Jacob, learned counsel for the 1st respondent landlord. According to us, in view of the concurrent nature of the factual findings entered by the statutory authorities regarding the merits of the eviction ground and the obvious situation that such findings are entered on appreciating legal evidence which is available on record, the only issue which arises for determination in this revision is, whether in the light of the order of the Full Bench in Jamal Vs. Safia Beevi it can be held that the single Rent Control Petition filed by the respondent against the revision petitioners was maintainable in law ?
5. The order of the Full Bench was delivered pursuant to a reference made by a Division Bench for a decision on the question as to whether a single Rent Control Petition can be maintained for evicting two tenants governed by two different tenancies on the same or several grounds of eviction. It is in paragraph 12 of the order that the learned Full Bench answers the reference and we quote the answers given by the Full Bench as follows:
RCR.189& 202 of 2008 4 " (i). Landlord can unite several causes of action against single tenant if he is occupying the same building in the event of which there will not be misjoinder of causes of actions and misjoinder of parties since tenant is single tenant occupying the same structure.
(ii). Landlord can prefer an application under S.11 (4)(iv) against various tenants who are occupying distinct portions of the same structure since the tenants are jointly interested in the causes of action and the defence available to all the tenants would be by and large common and hence there will not be any misjoinder of causes of actions or misjoinder of parties.
(iii). Landlord cannot unite different causes of action in a single petition filed against various tenants whether they are in occupation of same building or different buildings. Such a petition would be bad for misjoinder of causes of actions and misjoinder of parties.
(iv). Objection as to the misjoinder of causes of actions and misjoinder of parties should be taken at the earliest opportunity, failing which Court would not interfere unless it is shown that serious prejudice has been caused to the parties.
(v). Rent Control Court can consolidate the applications for eviction if there are similarity or identity of the matters in issue in the petitions RCR.189& 202 of 2008 5 which is to be left to the discretion of the Rent Control Court, depending upon the facts and circumstances of each case."
According to Mr. Gowri Shankar Rai and Mr. Jayesh Mohankumar, answer No.3 quoted above applies to the present case and hence it will have to be held inevitably that the Rent Control Petition is not maintainable. The learned counsel would refer to paragraphs 8, 9 and 10 and submit that the cause of action which the landlord has for evicting the two revision petitioners though similar are two different causes of action. That being so, the consolidation of these two different causes of action by the landlord in one single Rent Control Petition is not permissible. The learned counsel submitted, referring to the examples cited by the learned Full Bench in paragraph 10, that it is quite possible that in the present case itself the revision petitioner in RCR.189/08 may succeed in establishing that he is eligible for the benefit of the second proviso to Section 11(3) while the revision petitioner in RCR.202/08 may not so succeed. This will give rise to difficulties for the landlord as order of eviction will have to be declined against both the tenants. Both the learned counsel agreed that in view of answer No.4 given by the Full Bench RCR.189& 202 of 2008 6 (quoted above) the contention that the Rent Control Petition is not maintainable in law may not be available to the revision petitioner in RCR.202/08 who had not taken such a specific contention in the statement of objection which he filed before the Rent Control Court. Sri.Gowri Shankar Rai referred also to paragraph 11 of the order of the Full Bench where the words of Peacock, C.J. in Raja Ram Thewari Vs. Luchman ((1867) 8 W.R. 15) are quoted. Mr.Rai would submit that allowing a plaintiff or a petitioner to unite different causes of action in a single Rent Control Petition is likely to render matters exceedingly difficult for the Judge, and is likely to be vexatious and harassing to the different defendants. Mr. Rai drew our attention to an unreported judgment of a Division Bench of this court in C.R.P.No.1864/2001 and submitted that in an identical fact situation the said Division Bench following the order of the Full Bench in Jamal Vs. Safia Beevi has unhesitatingly held that one single Rent Control Petition is not maintainable for evicting two tenants. Mr.Rai submitted that if for any reason this court doubts the correctness of the order of the Division Bench or the Full Bench a reference may be made to a larger bench.
RCR.189& 202 of 2008 7
6. Per contra, Sri.Paul Jacob, learned counsel for the 1st respondent landlord would draw our attention to the pleadings in the Rent Control Petition and submit that the essential facts constituting the cause of action for the Rent Control Petition are stated in paragraph Nos.5, 6, 7 and 8 of the Rent Control Petition. The counsel submitted that the cause of action on the basis of which the Rent Control Petition was instituted was one and the same, viz., the genuine need of the landlord to occupy the entire building, different portions of which are presently occupied by the revision petitioners. According to Mr.Paul Jacob, it is not answer No.3 given by the Full Bench that applies; on the contrary it is answer No.2 that applies to the present case though the Full Bench in that answer has quoted only Section 11(4)(iv). According to the learned counsel, it is clear from the above answer given by the Full Bench that the Full Bench construed the cause of action which a landlord has for evicting several tenants governed by different tenancies occupying different portions of a larger building on the ground under Section 11(4)(iv) as virtually one and the same cause of action and not as separate causes of action. Referring to paragraph 3 of the order of the Full RCR.189& 202 of 2008 8 Bench, Mr.Paul submitted that the case before the Full Bench had nothing to do with the ground under Section 11(3) and according to the learned counsel the observations in paragraphs 8 and 10 to the extent they pertain to Section 11(3) are obiter as it was absolutely unnecessary for the Full Bench to have referred to the ground under Section 11(3) for "deciding the case before the Full Bench". Mr. Paul referred to Sections 20 and 141 of the Code of Civil Procedure as well as to Order I Rule 3, Order II Rule 2, Order II Rule 3 and Order II Rule 6 of the same Code. The learned counsel argued that the order of the Full Bench has been rendered per incuriam as it was without referring to the relevant provisions of the CPC relating to cause of action that the learned Full Bench came to the conclusion that there is misjoinder of cause of action when a landlord seeks eviction of two tenants governed by two tenancies on the ground under Section 11(3). Strong reliance was placed by Mr.Paul Jacob on the judgment of the Hon'ble Supreme Court in Om Prakash Srivastava Vs. Union of India & Another (2007 (2) SCJ 263) to expatiate the concept of cause of action in a suit or other legal proceeding.
7. We have very anxiously considered the rival RCR.189& 202 of 2008 9 submissions addressed at the bar. We have gone through the pleadings raised by the parties particularly the Rent Control Petition. The order of the Full Bench in Jamal Vs. Safia Beevi was passed answering a reference made to the Full Bench on questions elsewhere indicated herein before, and hence the ratio of that order are the answers given, which we have already quoted. Answer No.2 given by the Full Bench clearly shows that the Full Bench was of the opinion that in a situation where a landlord seeks to evict his various tenants occupying different portions of the same structure on the ground of re- construction under Section 11(4)(iv), the landlord is suing for establishing a cause of action in which the tenants are jointly interested and not different causes of action which the landlord is having against the different tenants. The Hon'ble Supreme Court in Om Prakash Srivastava Vs. Union of India & Another (2007 (2) SCJ 263) made an almost exhaustive survey of the statutory provisions and judicial precedents dealing with the concept of cause of action requisite for maintaining actions before courts and Tribunals. Arijith Pasayat (J) and Altamas Kabir (J) in the above judgment have inter alia referred to the judgment of the Hon'ble RCR.189& 202 of 2008 10 Supreme Court in Bloom Dekor Ltd. Vs. Subhash Himatlal Desai and others (1994 (6) SCC 322), Sadanandan Bhadran Vs. Madhavan Sunil Kumar (1998 (6) SCC 514), South East Asia Shipping Co. Ltd. Vs. Nav Bharat Enterprises Pvt. Ltd and others (1996 (3) SCC 443), Rajasthan High Court Advocates' Association Vs. Union of India and others (2001 (2) SCC 294), Gurdit Singh Vs. Munsha Singh (1977 (1) SCC 791), Navinchandra N. Majithia Vs. State of Maharashtra and others (2000 (7) SCC 640), apart from quoting the definition given in Black's Law Dictionary and Halsbury's Laws of England (Fourth Edition) for cause of action. On appreciating the judgment of the Supreme Court and the various authorities referred to by the Supreme Court in the said judgment it can be concluded that the cause of action for a petition for eviction under Section 11(3) is essentially the conception of a genuine need in the mind of a given landlord to occupy the tenanted premises either by himself or by any of his dependent family members. As cause of action takes in the whole bundle of facts which a plaintiff or a petitioner will have to establish, if traversed, for obtaining relief, it can be stated that cause of action for a RCR.189& 202 of 2008 11 proceeding under Section 11(3) of Act 2 of 1965 will include the establishment of a landlord - tenant relationship between the parties; the unwillingness on the part of the tenant to vacate despite being informed of the landlord's need and the absence of statutory prohibitions/interdicts such as the third proviso to sub-section (3), the first proviso to sub-section (3) and sub-section (9) of Section 11.
8. The cause of action of a given suit or other proceedings can have no relation to the defence contentions taken up. In fact we are fortified the above view by the judgment of the Supreme Court in Om Prakash Srivastava v. Union of India & another itself wherein their Lordships have stated clearly as follows:
"The cause of action has no relation whether to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
Understanding the concept of cause of action as above, it can be easily found that the cause of action on the basis of which the present Rent Control Petition was instituted by the landlord was one cause of action, which he was jointly having against both the tenants in respect of the whole building, two RCR.189& 202 of 2008 12 portions of which were in their possession. on the above view that we have taken regarding the cause of action for the Rent Control Petition, it has to be noticed that answer No.3 given by the Full Bench to the reference made in Jamal v. Safia Beevi cannot have application. Perhaps it is the reasoning behind answer No.2 which applies more to this case. Answer No.2 dealing specifically with Section 11(4) (iv) is to the effect that as tenants are jointly interested in the cause of action and as the defences available to them are by and large common there will not be any misjoinder of causes of action or misjoinder of parties, if a single Rent Control Petition is instituted for evicting various tenants occupying different portions of one and the same building governed by different tenancies on the ground under Section 11(4)(iv).
9. As for this case which is filed under Section 11(3) we have already found that the cause of action is one and the same and that the same is a common or joint cause of action in respect of one and the same corpus i.e. the entire building portions of which are occupied by the two tenants. The cause of action basically is the conception of a need in the mind of the landlord to occupy the entire building for the purpose of RCR.189& 202 of 2008 13 doing business. We also notice that it is substantially the same contentions that have been raised by the two tenants. Variation between the contentions raised by the two tenants is that one of them raised the contention that the Rent Control Petition is vitiated by misjoinder of causes of action and parties while such a contention is not taken by the other tenant.
10. There is an observation by the learned Appellate Authority in the impugned judgment that the tenant who raised this contention of misjoinder did not pursue the same. That observation came up for very severe criticism at the hands of Mr. Gowri Shankar Rai. Mr.Rai submitted that the judgment contains detailed discussion regarding the above contention and abruptly concludes the discussion saying that the contention is not pursued. We have surveyed the evidence. We find that the learned Appellate Authority was justified in its observation that the above contention was not pursued. The observation, we are sure, was made in the context of adduction of evidence for substantiating the contention and not in the context of addressing arguments at the Bar.
11. Nobody had a case before the appellate authority that any prejudice has been caused to either of the tenants RCR.189& 202 of 2008 14 on account of the statutory authorities considering the question whether the tenants are entitled to the protection of the second proviso in the same proceeding. We find from the evidence that adequate opportunity was given to both the tenants for substantiating the above plea, the burden to substantiate which is settled by various decisions including Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (FB)) to be on the tenant. Before us it was not argued either by Sri.Gowri Shankar Rai or by Mr. Jayesh Mohankumar that any legal prejudice has been occasioned to either of the tenants in any manner whatsoever by the authorities considering the eligibility of the two tenants to protection for the second proviso simultaneously. As a matter of fact, regarding the merits of the matter i.e. whether the judgment of the appellate authority is liable to be interfered within the contours of Section 20 of Act 2 of 1965 on merits, no serious arguments were addressed even, before us by either of the counsel. Arguments were addressed only on the basis of the Full Bench judgment that the Rent Control Petition was not maintainable and that the eviction order presently passed in such a Rent Control Petition is bad.
RCR.189& 202 of 2008 15
12. It is true that another Division Bench of this court has in CRP.1864/2010 interpreted the judgment of the Full Bench as ruling that a single rent control petition seeking eviction on the ground of sub section (3) of Section 11 of two tenants occupying different portions of the same structure is not maintainable. We notice that, the arguments which were addressed before us regarding the concept of cause of action were not addressed before the Bench which decided CRP No.1864/2001 and hence that Division Bench did not have the occasion to consider the arguments which we have considered. We also find that unlike in the present case the merits of the eviction ground was also seriously under dispute in that case though the Bench did not examine the merits.
13. The result of the forgoing discussion is that we are in a position to sustain the impugned judgment of the appellate Authority notwithstanding the judgment of the Full Bench. We hold that the cause of action for a Rent Control Petition instituted by a landlord seeking eviction of his several tenants occupying different portions of one and the same building on the only ground under sub section (3) of Section 11 that he needs to occupy the entire building, is a common or joint RCR.189& 202 of 2008 16 cause of action and not two different causes of action against the tenants. We also hold that cause of action for a suit or other proceedings cannot have relation to the defences taken. We also hold that no prejudice has been occasioned to either tenant in this case on account of the landlord instituting one rent control petition seeking eviction of both of them as sufficient opportunity has been afforded to both of them for substantiating all the contentions raised by them. We, therefore, dismiss both the Rent Control Revision Petitions.
14. After we pronounced this order, the learned counsel for the tenants revision petitioners requested that a reasonably long period be given to the tenants to vacate the premises. Even though the above request is stiffly opposed by the learned counsel for the landlord, we feel that having regard to the totality of the circumstances attending on this case time should be granted till 31/1/2011 subject to conditions.
15. Hence, the Execution Court is directed not to order and effect delivery of the buildings in question till 31/1/2011 provided both the tenants file affidavits before the Execution Court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the buildings in their RCR.189& 202 of 2008 17 respective possession to the respondents on or before 31/1/2011 and undertaking further that arrears of rent, if any, will be discharged within one month and occupational charges at the current rent rate will also be paid as and when the same falls due.
16. It is made clear that the revision petitioners will get benefit of time granted under this order only if the affidavits as directed above are filed within three weeks from today.
PIUS C.KURIAKOSE, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb