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Kerala High Court

Ahammadul Kabeer vs K G Sunilkumar on 12 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.
             WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
                                RCREV. NO. 68 OF 2024

AGAINST    THE   JUDGMENT   DATED   14.11.2023   IN   RCA   NO.21   OF   2023   OF   ADDITIONAL

DISTRICT COURT (ADHOC)-II, ALAPPUZHA

REVISION PETITIONER(S)/APPELLANT/PETITIONER:

                 AHAMMADUL KABEER
                 AGED 57 YEARS
                 S/O MUHAMMEDKUTTY, KABEER MANZIL, ERAMALLOOR MURI, EZHUPUNNA
                 VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688537

                 BY ADV K.G.BALASUBRAMANIAN



RESPONDENT(S)/RESPONDENTS 1, 2, 4, 5/RESPONDENTS 1,2, ADDITIONAL RESPONDENTS

4,5:

       1         K G SUNILKUMAR
                 AGED 53 YEARS
                 KEEZHETHU NIKARTHIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE, CHERTHALA
                 TALUK, ALAPPUZHA DISTRICT, PIN - 688537

       2         MONU PADANNAYIL
                 AGED 41 YEARS
                 S/O RAVI (LATE RAVEENDRAN), ERAMALLOOR MURI, EZHUPUNNA VILLAGE,
                 CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688537

       3         SOBHA R (SOBHANA R)
                 AGED 66 YEARS
                 W/O RAVEENDRAN, PADANNAYIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE,
                 CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688537

       4         SONU
                 AGED 38 YEARS
                 S/O RAVEENDRAN, PADANNAYIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE,
                 CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688537

                 BY ADVS.
                 T.JAYAKRISHNAN
                 R.KRISHNAKUMAR (CHERTHALA)(K/1680/2000)


       THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12.06.2024, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RCREV. NO. 68 OF 2024
                                        2


                                 ORDER

Amit Rawal, J.

In the present petition, we have been confronted with the findings of fact and law arrived at by the learned Rent Controller and the Appellate authority whereby the rent petition filed by the petitioner-landlord has been dismissed in toto, deciding only one issue.

2. The rent petition was filed seeking eviction on the ground of arrears of rent specified under Section 11(2)(b) and bonafide needs under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act.

3. There is a checkered history of litigation between the petitioner and the erstwhile tenant. In an earlier round of litigation, petitioner/landlord had instituted RCP No.18 of 2012 by arraying K.G Sunil Kumar as tenant and Monu Padannayil as the sub tenant. The aforementioned RCP was dismissed vide judgment dated 30.11.2015. RCA No.3 of 2016, preferred against the said judgment also stood dismissed as per judgment dated 13.4.2018.

4. It is pertinent to mention here that when the appellate authority was seized of the matter RCA No.3 of 2016, petitioner/landlord, realizing that would not succeed, instituted a RCREV. NO. 68 OF 2024 3 fresh RCP bearing No.24 of 2017 by arraying K.G Sunil Kumar, Monu Padannayil and G. Raveendran as respondents. In para 4 of the petition, it was averred that, K.G Sunil Kumar was the tenant earlier, who inducted Monu Padannayil and now the 3 rd respondent, G.Raveendran is the tenant. Eviction was sought by alleging that the Monu Padannayil has sublet the premises to G. Raveendran. But on minute perusal of the pleadings, eviction on the ground of arrears of rent and personal necessity as per the provisions, supra was also taken.

5. Respondent No.3 arrayed in the RCP No.24 of 2017, in para 6 of the written statement/objection stated as under:

6. Averments and allegations in paragraph 3 are denied. All the rents have been duly paid to the petitioner by this respondent from 24.12.2008 onwards. This respondent is in possession and carrying on business in the room as a lawful tenant, and not illegally as alleged.

6. On perusal of the same, it is evident that respondent No.3 admitted the petitioner as landlord and alleged that rent have been paid from 24.12.2008 onwards. But the plea of bonafide necessity was denied. Without any submission of application on behalf of the respondent/tenant for treating the issue of relationship of landlord-tenant as a preliminary issue, learned Rent controller straight away adjudicated the controversy and disposed of the rent petition summarily.

RCREV. NO. 68 OF 2024 4

7. The appellate authority, though was under an obligation, being the last court of fact and law, to deal with the points raised by the respective parties in entirety, also committed the same mistake.

8. Learned counsel for the petitioner/landlord submitted that the judgments under challenge are cryptic, opaque, vague, preposterous and assiduously submitted that the obligation required to be discharged by the courts below is to decide the controversy in entirety. Without looking at the findings in earlier round of litigation much less the pleadings and admission, decided the issue in a slip shod/summarily manner, thus there is a complete abdication.

9. On the other hand, learned counsel for the respondent/tenant submitted that the landlord has again committed the similar mistake as was done in the previous round of litigation and the petition is liable to be dismissed on the ground of misjoinder of the parties. Already when there has been an adjudication that, K.G Sunil Kumar, the 1 st respondent was not the tenant, there was no occasion for impleading his name.

10. As per the pleadings in paragraph 6 of the objection, landlord ought to have amended the petition. Respondent No.3 never denied the relationship, therefore, the ground of subletting by respondent No.2 in favour of the respondent 3 as set up in the ejectment petition is a figment of imagination based on baseless RCREV. NO. 68 OF 2024 5 averments and prayed for upholding the order under challenge.

11. We have heard the learned counsel for the parties and appraised the paper book. Before adverting to the rival contentions and legal position much less the averments brought to the court during the course of the hearing, it would be appropriate to extract the relevant portion of the findings rendered in the previous round of litigation arising out of RCP No.18 of 2012, further decided by the appellate authority in RCA No.3 of 2016 vide judgment dated 13.4.2018.

There is no allegation that the 1 st respondent has sublet the building to anybody. The absence of any signature of the petitioner in Ext. A3 probabilises the defence version regarding the execution of Exts. B2 and B3 agreements between the petitioner and the 2nd respondent and his father. The defence version is that the original of Ext. B2 and Ext. B3 are in the hands of the petitioner. The petitioner could not establish that the 1st respondent had been the tenant of the scheduled shop room during the relevant period. The curt below was therefore right in dismissing the petition. These points are therefore answered in the negative.

12. The respondent No.1 noticed in the aforementioned extracted portion was none else, but K.G Sunil Kumar. However, in the instant petition on looking at the memo of parties, an inadvertent mistake has again crept by arraying K.G Sunil Kumar as a party. At this stage, learned counsel appearing on behalf of the petitioner submitted that in case this court deems it appropriate to remand the matter for the rent controller to adjudicate afresh, liberty may be granted for moving an appropriate application for RCREV. NO. 68 OF 2024 6 deletion of the name of 1st respondent.

13. The factum that the rent controller and the appellate authority have adjudicated the controversy only with regard to the relationship of landlord and tenant, which has not been denied by the counsel representing the respondent viz-a-viz the pleadings set up in the rent petition filed during the pendency of the previous appeal seeking ejectment on the ground of personal necessity and arrears of rent. Learned Rent Controller by looking at the pleadings in paragraph 6 of the objection filed by the respondent No.3, cited (supra), decided the controversy in its entirety by framing the following issues:

1. Is the petition barred by section 15 of the BRC Act?

2. Is the claim of the petitioner for eviction under section 11(4)of the BRC Act allowable?

3. Whether the petitioner is entitled to vacant possession of the Petition schedule shop room under section 11(3) of the Act?

4. Is the petitioner entitled to get an order to put him in vacant possession of the shop room under section 11(2) of the Act?

5. What shall be the order as to costs?

14. Without commenting further on the merits and demerits of the matter, for it may take away the valuable right of the parties, pending lis, we thus set aside the judgment under challenge and remit the matter to the learned Rent Controller by exploring the RCP 24 of 2017 and direct the Rent Controller to decide the controversy afresh on all issue since the parties to the lis have already lead the evidence on all issues except for the submission of the application, RCREV. NO. 68 OF 2024 7 as expeditiously as possible within a period of four months from the date of receipt of a certified copy of this judgment. Parties through their counsels are directed to appear before the learned Rent Controller on 30.7.2024.

SD/-

AMIT RAWAL JUDGE SD/-

sab                                           EASWARAN S.
                                                JUDGE