Kerala High Court
The Manager vs Dileep Ganesh on 27 January, 2022
Author: Anil K.Narendran
Bench: Anil K.Narendran
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943
R.C.REV.NO.105 OF 2021
AGAINST THE JUDGMENT DATED 27.02.2021 IN R.C.A.NO.11 OF
2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED
31.01.2018 IN R.C.P.NO.19 OF 2016 OF THE RENT CONTROL
COURT (MUNSIFF), KODUNGALLUR
REVISION PETITIONERS:
1 THE MANAGER,
SAI SERVICE STATION LTD.,
KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK,
THRISSUR DISTRICT, PIN-680681.
2 M/S SAI SERVICE STATION LTD.,
REPRESENTED BY ITS GENERAL MANAGER,
PHUGUWADI P.O, BOMBAY-PUNE ROAD, MAHARASHTRA,
PIN-411012.
BY ADVS.
P.B.KRISHNAN
ANTO THOMAS
SABU GEORGE
P.B.SUBRAMANYAN
MEERA P.
2
R.C.Rev.No.105 of 2021
RESPONDENT:
DILEEP GANESH
AGED 45 YEARS, S/O GANESH,
THARAYIL HOUSE, KAIPAMANGALAM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT-680681.
BY ADV P.K.RAVI SANKAR
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 04.01.2022, THE COURT ON 27.01.2022 DELIVERED
THE FOLLOWING:
3
R.C.Rev.No.105 of 2021
"C.R."
ORDER
The respondent-landlord filed R.C.P.No.19 of 2016 before the Rent Control Court (Munsiff), Kodungallur for eviction of the revision petitioners-tenants under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The R.C.P. was allowed. An appeal was filed by the petitioners as R.C.A.No.11 of 2018 before the Rent Control Appellate Authority (Additional District Judge), Irinajalakuda under Section 18(1)(b) of the Act and that ended in dismissal. The petitioners challenge the said judgment as well as the order of the Rent Control Court in this revision petition filed under Section 20 of the Act.
2. The respondent and his brother Deepak Ganesh are the owners of the petition schedule building. They let out it to the petitioners on a monthly rent of Rs.45,000/- on 01.12.2009. The respondent, who was working abroad, has come back and he wants to start an automobile business in the petition schedule building. His brother 4 R.C.Rev.No.105 of 2021 Deepak Ganesh has consented for the same. Hence, he demanded vacant possession of the building on the ground of bonafide need.
3. The petitioners resisted the petition contending as follows; The respondent as well as his brother are working abroad at Abudhabi. They have no intention to start an automobile business as claimed. The petitioners put up constructions of substantial nature and installed machinery and related amenities with the knowledge of the landlords spending more than one crore rupees, since the lease was for a period of 15 years. The attempt of the respondent now to evict the petitioners is with the object of helping someone else and also to garner the benefits on account of the proposed acquisition of a part of the property. Even he tried to forcibly evict the petitioners, constraining the petitioners to file O.S.No.1585 of 2016 seeking an injunction. The petitioners are conducting a show room and authorised service centre of Maruti Suzuki India Ltd. and in the event of eviction now, they would be put to much loss and 5 R.C.Rev.No.105 of 2021 inconvenience. Without junction of the other co owner, the respondent has no right to claim eviction.
4. The Rent Control Court after considering the evidence on either side ordered eviction. The Appellate Authority by judgment dated 27.02.2021 confirmed the order of eviction. In this revision petition, the petitioners would contend that both the authorities below totally erred in ordering eviction inasmuch as the other co-owner did not join as a petitioner, the need urged was not bonafide for more than one reason and the plea for eviction was barred owing to the provisions of Section 11(9) of the Act.
5. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondent.
6. The learned counsel for the petitioners questions maintainability of the petition for eviction on two grounds;
(i) the petitioners have protection from eviction for a period of 15 years from the date of creation of tenancy, which was on 09.09.2009, under the provisions of Section 11(9) 6 R.C.Rev.No.105 of 2021 of the Act and, (ii) the ground under Section 11(3) of the Act cannot be availed by a co-owner without junction of other co-owners, as he cannot exclude the other co-owners from possession.
7. The petitioners contended that the lease was for a period of 15 years and therefore the action for eviction on the ground of bonafide need was premature and not maintainable. They produced the rent agreement before the Rent Control Court to prove the term of the tenancy. It was not admitted in evidence since it was unregistered and insufficiently stamped. The Rent Control Court as well as the Appellate Authority did not accept the contention of the petitioners that they are entitled to get protection of Section 11(9) of the Act.
8. The learned Counsel for the petitioners conceded that the period of lease having been mentioned as 15 years, registration of the document is mandatory in view of the provisions of Section 107 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908. In Paul v. Saleena [2004 (1) KLT 924] after referring to the principle 7 R.C.Rev.No.105 of 2021 laid down by the Apex Court in Satish Chand Makhan and others v. Govardhan Das Byas and others [(1984) 1 SCC 369], Anthony v. K.C. Ittoop & Sons [(2000) 6 SCC 394] and in Samir Mukherjee v. Davinder K. Bajaj and others [(2001) 5 SCC 259] it was held that in the absence of a registered instrument no valid lease from year to year or a term exceeding one year or reserving yearly rent can be created.
9. Having said so, the question is what shall be the nature of the relationship between the parties? Section 11 of the Act enables a landlord to get the tenant evicted on specified grounds. Section 11(9) however is a rider to that right. The tenant would not be evicted for a specified period if parties agreed that the lease shall be for a specific period. That gives an assurance to the tenant so that he can modulate his future course of action accordingly. A plea for eviction on the ground of bona fide need for own occupation or his dependent, who is a member of his family or requirement for additional accommodation etc.,is not available to be raised by the landlord during that specific period. 8 R.C.Rev.No.105 of 2021
10. In Paul v. Saleena (supra) this Court also considered the question as to, even if the document is an unregistered one, whether the period mentioned therein would be binding on the parties and consequently a petition filed before the period mentioned in the document would be hit by Section 11(9) of the Act? The Court took into consideration the following decisions of the Apex Court for answering the question. Satish Chand Mukhan and others v. Goverdhandas Byas and others [AIR 1984 SC 143], in which it was held that where a lessee remained in possession under an unregistered deed of renewal of lease, such deed of renewal was inadmissible in evidence under S.49 except for the collateral purpose of proving the nature and character of his possession. In A.N. Parkas v. N.H. Nagvi [AIR 1989 Delhi 277] it was held that an unregistered document of lease can be looked into to know the purpose of letting whether residential or commercial, because the said term can be deemed to be collateral matter. Rai Chand Jain v. Miss Chandra Kanta Khosla [AIR 1991 SC 744], which also 9 R.C.Rev.No.105 of 2021 postulated that an unregistered lease can be looked into for collateral purposes like for ascertaining whether the purpose of the lease was residential or not. After taking into consideration those principles this Court in Paul v. Saleena (supra) held that the period of lease is an integral part of the agreement and not a collateral one. Hence, unregistered lease deeds cannot be pressed into service to create, declare, assign, limit or extinguish any right, title or interest in or to the property comprised in the document and that such a lease deed creates only month to month tenancy. If the lease is registered under the Registration Act alone, it would create transfer of right to enjoy the immovable property for a specific term exceeding one year. This proposition has been reiterated by this Court in Chandrakala v. Soman [2004 (3) KLT 432] and Basheer M. v. Remani Gopalan and another [2014 (1) KHC 436]. We agree with the said view.
11. In view of the above, the Rent Control Court and the Appellate Authority were right in refusing to admit the unregistered lease deed in evidence. In the said 10 R.C.Rev.No.105 of 2021 circumstances, it can only be said that the relationship between the parties is month to month tenancy and the contention that the plea for eviction of the petitioners is barred under provisions of Section 11(9) of the Act is untenable.
12. The learned counsel appearing for the petitioners next contended that the petition is not maintainable since the other co-owner has not joined with the respondent in filing the petition for eviction. The learned counsel placed strong reliance on Ibrahim v. Zeena Robert [2021 (5) KHC 759] in order to fortify his contention that unless all co-owners join hands with the petitioners in filing a petition for eviction on the ground, bonafide need of the building for his own occupation, no eviction can be ordered.
13. In Ibrahim (supra) the petition was laid seeking eviction on the ground that the tenanted building was needed for the occupation of the petitioner, who is having only fractional interest. There was no pleading to the effect that the other co-owners have consented or agreed for the need 11 R.C.Rev.No.105 of 2021 advanced by the petitioner that he required the petition scheduled building for his own occupation. The Court in the above context held, '3. xx xx In order to test the bona fides of the need, it is within the jurisdiction of both the Rent Control Court as well as the Rent Control Appellate Authority to look into the question whether the need advanced is capable of being put in execution. If it is found that it is not capable of being put in execution without the consent of the other co-owners, it is not permissible to grant an order of eviction under Section 11(3) of the Act. In other words, the consent of all the co-owners, who are having fractional interest over the property, is required for the alleged occupation of the petitioner. For that purpose, all co-owners should join hands with the petitioner in filing the application and they should be in the party array of such petition. Even a pleading to the effect that the other co-owners have consented to give the petition schedule shop room for the user of one of the co - owners, is not at all sufficient, as it can be withdrawn at any time by any of the co-owners. So, it is a mandatory requirement that all co-owners should join hands with the petitioner in filing the petition for eviction under Section 11(3) of the Act, if it really requires for the occupation of one of the co-owners.' 12 R.C.Rev.No.105 of 2021
14. The learned Counsel for the petitioners would contend that the said dictum having been rendered in a fact situation quite at par with the facts of this case, the same has to be followed in this case. Although the preponderance of the judicial opinion is that one of the co-owners without junction of other co-owners can maintain an action for eviction of the tenant, the learned Counsel submits, that rule is of general application only and in an action for eviction on the ground of bonafide need, the decision in Ibrahim (supra) is applicable.
15. The learned Counsel for the respondent, on the other hand, would submit that decision in Ibrahim is against the principle of law laid down by the Apex Court and this Court in a long line of decisions on the point and therefore it is per incuriam. Sri Ram Pasricha v. Jagannath [AIR 1976 SC 2335]; Kanta Goel v. B. P. Pathak [AIR 1977 SC 1599]; India Umbrella Mfg. Co. v. Bhagabandei Agarwalla [(2004) 3 SCC 178]; Mohinder Prasad Jain v. Manohar Lal Jain [(2006) 2 SCC 724]; FGP Ltd. v. Saleh Hooseini Doctor and another [(2009) 10 SCC 223]; 13 R.C.Rev.No.105 of 2021 Raphael v. Sudhodhanan [2013 (2) KLT 500] and Kumaran A. v. Madambillath Subaida and another [2019 (3) KLJ 866] are the decisions, according to the learned counsel, which took the view that one co-owner can file a petition for eviction of a tenant without the junction of other co-owners as long as other co-owners have no objection regarding the rights of the suing co-owner.
16. In Sri Ram Pasricha (supra), the Apex Court held as under:
'Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place.
17. In Kanta Goel (supra) the question was whether one co-lessor can on his own sue for eviction even if the other co-lessors have no objection. The question was considered in the context of Delhi Rent Control Act, 1958. Definition of the 'landlord' in Section 2(e) of the said Act reads, '2(e) 'Landlord' means a person who, for the time being 14 R.C.Rev.No.105 of 2021 is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.'
18. The Apex Court considered the right of one of the co-owners to sue for eviction in the capacity of 'landlord' and held that a co-owner is as much an owner of the entire property as any sole owner of the property is. Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. Accordingly the Apex Court upheld the right of a co- owner to sue for eviction for and on behalf of other co-owners also.
19. India Umbrella Mfg. Co. which in turn relies on Sri.Ram Pasricha (supra). The principles which have been affirmed in Mohinder Prasad Jain (supra) are that one co- owner filing a suit for eviction against the tenant does so on 15 R.C.Rev.No.105 of 2021 his own behalf in his own right and as an agent of the other co-owners. In this matter, the consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.
20. The definition of 'landlord' in Delhi Rent Control Act, 1958 is pari materia the definition of 'landlord' in Section 2(3) in the Kerala Act which reads, '2(3) "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.'
21. Therefore, the principle laid down by the Apex Court in aforesaid decisions is very much binding as far as similar cases under the Kerala Act are concerned.
22. In Raphael v. Sudhodhanan (supra) the application for eviction under sub-sections (2)(b), (3), (4)(i) and (4)(ii) of Section 11 of the Act by a co-owner. One of the 16 R.C.Rev.No.105 of 2021 grounds for eviction was bonafide need of the building for own occupation. This Court confronted with a contention that the application was not maintainable for want of joining of the other co-owner as applicant, had held, '3. Admittedly, even going by the case of the respondent therein, the rent control petition is instituted by a co- owner. That apart, the building was, admittedly, taken on rent, either by Devassy or his son, who is the respondent in the rent control petition. The specific plea of the respondent in the rent control petition is that after the demise of Ananthakrishnan, there was no demand or payment of rent. With the aforesaid undisputed facts, the fact of the matter is that the person in occupation, who is the respondent in the rent control petition, falls within the definition of 'tenant' under the Act. The person, who has filed the application for eviction, is admittedly, a co - owner of the property. He, therefore, falls within the definition of 'landlord' under the Act. Exclusive or absolute title to property is not necessary to institute a rent control petition.'
23. Kumaran A. v. Madambillath Subaida and another (supra) again is a case where the right of a co- owner to claim eviction of the tenant without junction of other co-owners has been considered. There the petition was for 17 R.C.Rev.No.105 of 2021 eviction under Sections 11(2)(b) and 11(3) of the Act. Here also, one of the grounds for eviction was bonafide need of the building for own occupation. It was held, '8. xx xx It is trite law that every co-owner is an owner of each and every parcel of co-ownership property insofar as a third party is concerned. Catena of decisions are available for the proposition that one co-owner can file a petition for eviction of a tenant without the junction of other co-owners as long as other co-owners have no objection regarding the rights of the suing co-owner.'
24. The law on the point was thus settled. Even if the eviction is sought for own occupation of the suing co-owner and the petition is filed by him without junction of the other co-owner/s, it is maintainable as long as it is not objected by the non-suing co-owner/s. The ratio in Ibrahim (supra) that all co-owners should join as petitioners in an application for eviction under Section 11(3) of the Act is against the principle laid down by the Apex Court and this Court in the abovesaid decisions.
25. A Constitution Bench of the Apex Court in Bengal 18 R.C.Rev.No.105 of 2021 Immunity Co.Ltd. v. State of Bibar [AIR 1955 SC 661], followed the principle laid down in Young v. Bristol Aeroplane Co.Ltd. [1944 KB 718 CA)] which explained as to when a decision is said to be per incuriam. The principle is as follows:
'Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, but right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam.'
26. This principle has consistently been followed by the Apex Court henceforth. In Government of Andra Pradesh and another v. B.Satyanarayana Rao [(2000) 4 SCC 262] the Apex Court observed that the rule of per incuriam 19 R.C.Rev.No.105 of 2021 can be applied when a court omits to consider a binding precedent of the same court rendered as the same issue or where a court omits to consider any statute while deciding that issue.
27. In Madhya Pradesh Rural Road Development Authority v. L.G.Chaudhary Engieners and Contractors [(2012) 3 SCC 495], the Apex Court explained in detail when a decision is said to be per incuriam. It was observed that 'as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned.' This case was referred to a larger Bench and the larger Bench affirmed it. The decision of the larger Bench is reported in Madhya Pradesh Rural Road Development Authority & another v. L.G.Choudhary Engineers and Contractors [(2018) 10 SCC 826].
28. The Apex Court in Jagannath Temple Managing Committee v. Siddha Math and others [(2015) 16 SCC 20 R.C.Rev.No.105 of 2021 542] reiterated the above principle. The Apex Court further held, '16. xx xx While the doctrine of stare decisis is crucial to maintain judicial discipline, what cannot be lost sight of the fact is that decisions which are rendered in ignorance of existing statutes and law laid down by this Court cannot bind subsequent Benches of this Court.'
29. We found above that the judgment rendered in Ibrahim v. Zeena Robert (supra) is against the law laid down by the Apex Court in Sri Ram Pasricha v. Jagannath; Kanta Goel v. B. P. Pathak; India Umbrella Mfg. Co. v. Bhagabandei Agarwalla; Mohinder Prasad Jain v. Manohar Lal Jain; FGP Ltd. v. Saleh Hooseini Doctor and another and the decision of this Court in Raphael v. Sudhodhanan and Kumaran A. v. Madambillath Subaida. In that view of the matter, this Court is constrained to hold that the decision in Ibrahim (supra) is per incuriam.
30. Notice to quit, Ext.A1 was issued on 30.06.2016 by the respondent's counsel on the instructions of the respondent and his brother, the other co-owner. But the brother did not 21 R.C.Rev.No.105 of 2021 join in the petition, nor it is averred in the petition that the brother had given consent to the respondent to start a business in the petition schedule building. When the Counsel has been instructed by the brother also to issue such a notice, his consent can certainly be inferred. There is nothing on record to show that he ever had withdrawn the consent. On that score also, it has to be said that there is no vice to the petition for eviction.
31. The petitioners raised several contentions to challenge bona fides of the need urged by the respondents. One is that since the parties agreed to have the rental arrangement for a period of 15 years by virtue of the covenants in the rent agreement entered into between them, the need now urged cannot be termed bonafide. It is contended that acting upon the assurance, the petitioners invested a huge amount of more than one crore rupees for making constructions in the land appurtenant to the tenanted building in order to suit their business. Insofar as the structures put up by them, the petitioners contend that there 22 R.C.Rev.No.105 of 2021 is no landlord-tenant relationship. It is alleged that the respondent without reckoning such aspects, filed the petition for eviction.
32. The Rent Control Court as well as the Appellate Authority considered the contention that the petitioners have put up structures annexing to the existing building. The concurrent finding is that the petitioners had put up certain temporary structures in order to suit their service station business. A two-storied RCC building having an area of 2400 sq.ft. along with a few other structures, which originally had been used as an automobile workshop, was let out to the petitioners. After analysing the entire evidence, the authorities below found that the structures put up by the petitioners were of temporary nature and the same could be dismantled and reconstructed at another place. It may be noted that there is nothing on record to show that the petitioners on the basis of any agreement, either written or oral, such structures were put up. In such circumstances, the petitioners, who are admittedly the tenants, cannot claim any 23 R.C.Rev.No.105 of 2021 right, except that of a tenant, with respect to the premises which are in their possession on the basis of the tenancy arrangement. Even if any structure of temporary nature as pointed out above, has been put up, that does not clothe the petitioners with any exemption or protection from eviction as per the provisions of Section 11 of the Act.
33. The rent agreement, Ext. B1, has not been admitted in evidence. Therefore, the terms of such an agreement cannot be taken into account. What then governs the parties is the admission made by either side as regards the tenancy arrangement. In view of that matter, the contention of the petitioners that the respondent came with the plea of eviction prematurely and that tells upon their bona fides, cannot be reckoned with.
34. Admittedly, the tenancy began on 9.9.2009. Petition for eviction was filed in 2016. According to the respondent, the need of his starting a business emerged, since he lost his job abroad. The need so arisen on account of unforeseen reasons cannot be said, in any way, to be a false 24 R.C.Rev.No.105 of 2021 assertion. It is in evidence that the landlords were conducting an automobile workshop in the tenanted premises. Father of the respondent died. The respondent and his brother, who were assisting his father in the business, got employment abroad. Since the respondent is compelled to come back home, he decided to start the same business. Being a qualified and experienced person, PW1 desires to resume the business in which he inferrably has a passion and interest. There is absolutely no reason to find that the same is not a bonafide need.
35. Proceedings for acquisition of a part of the property in dispute is on the anvil. Both PW1 and RW1 deposed in Court about its details. The learned Counsel for the petitioners would contend that the respondent clamoured for eviction now with the sole object of denying the respondents their due on account of the acquisition. They claim that being tenants who installed structures in the demised premises by spending a huge sum, they are entitled to get a share in the compensation amount. The learned Counsel on either side 25 R.C.Rev.No.105 of 2021 would agree that the Land Acquisition Officer already assessed compensation. If so, compensation entitled, if any, by each party should have already been assessed. That apart, compensation is assessed as on the date of notification for the acquisition, which was obviously issued much earlier. Therefore the contention that the projected need is a ruse and it was triggered with a malafide objective of garnering the entire compensation consequent to the land acquisition is untenable.
36. The learned Counsel for the petitioners lastly contended that after acquisition a portion of the land and building alone will be left and the purpose for which eviction sought will be eclipsed by such an event. The petitioners' request to ascertain those aspects by deputing a commission was declined by the Appellate Authority and for those reasons also the impugned judgment and order directing eviction are liable to be set aside, the learned Counsel contends. The need urged is to start an automobile workshop and spare parts business. There is no case for the petitioners that there is any rule prescribing a minimum area of land or building for an 26 R.C.Rev.No.105 of 2021 automobile workshop and even if there is, it is not contended that such minimum area would not be left after acquisition. It is for the landlord to plan and shape his business depending upon the facilities available. The tenant cannot have a say or right to insist on the nature of the business the landlord planning to materialise. This Court is of the view that the said contention is also not of avail to the petitioners.
37. In view of what is stated above, we see no reason to doubt the bona fides of the need urged by the respondent that he wants the petition schedule building for starting an automobile workshop and spare parts business. The learned Counsel for the petitioners do not have a case that either the first or the second proviso to Section 11(3) of the Act has application in this case.
38. In the circumstances, we find no reason to interfere with the findings in the judgment of the Appellate Authority dated 27.02.2021 or the order of the Rent Control Court dated 31.03.2018, in exercise of the powers under Section 20 of the Act. The findings therein are not suffering 27 R.C.Rev.No.105 of 2021 from any illegality, irregularity or impropriety. Therefore, we hold that the Rent Control Revision can only fail. It is accordingly dismissed. The petitioners-tenants shall hand over vacant possession of the petition schedule building to the respondent-landlord within a period of three months from today.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr