Ibrahim v. Cherupillatt C.J. Chacko

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935 OP (RC).No. 1955 of 2013 (O) ----------------------------- AGAINST THE ORDER IN RCP 15/2009 of RENT CONTROL COURT, PERAMBARA DATED 20/3/2013 PETITIONER(S)/ PETITIONER/PETITIONER IN IA 122/2013/PETITIONER IN RCP 15/2009RENT CONTROL COURT, PERAMBRA/LANDLORD: ----------------------------------------------- IBRAHIM AGED 54 YEARS S/O KALANDAR HAJI, EDAVANAKKUNNUMMAL HOUSE MENHANNIAM AMSOM, MARUTHERI DESOM, KOYILANDY TALUK KOZHIKODE DISTRICT, KERALA STATE BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S)/ RESPONDENT/RESPONDENT IN IA 122/2013/RESPONDENT IN RCP 15/2009RENT CONTROL COURT, PERAMBRA/TENANT: ------------------------------------ CHERUPILLATT C.J. CHACKO, AGED 58 YEARS S/O JOSEPH, BUSINESS, PERAMBRA AMSOM DESOM KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE R BY ADV. SRI.P.R.SREEJITH R BY ADV. SRI.M.PROMODH KUMAR THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 04-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 1955 of 2013 (O) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------ EXHIBIT P1: TRUE COPY OF THE PETITION IA 122/2013 ON THE FILE OF RENT CONTROL COURT, PERAMBRA. EXHIBIT P2: TRUE COPY OF THE COUNTER STATEMENT BY THE RESPONDENT IN IA 122/2013 ON THE FILE OF RENT CONTROL COURT, PERAMBRA. EXHIBIT P3: TRUE COPY OF THE RENT CONTROL PETITION RCP 15/2009 ON THE FILE OF RENT CONTROL COURT, PERAMBRA. EXHIBIT P4: TRUE COPY OF THE ORDER IN THE RENT CONTROL PETITION RCP 15/2009 ON THE FILE OF RENT CONTROL COURT, PERAMBRA. RESPONDENT(S)' EXHIBITS : NIL ----------------------- ms \\True copy// P.A to Judge **T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P.(RC).No.1955/2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4[th] day of October, 2013** ## **J U D G M E N T** ## **Ramachandran Nair, J.** The landlord in a petition for eviction, aggrieved by the order passed by the Rent Control Court refusing to grant leave to withdraw the petition, is the petitioner herein. The Rent Control Petition No.15/2009 was filed by the landlord claiming eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short, the 'Act') and Ext.P3 is the copy of the petition. It is averred in para.3 of the O.P.(RC) that the landlord actually failed to disclose in the pleadings the availability of vacant space on the first floor of the building. Therefore, the petitioner wanted to withdraw from the proceedings and leave was sought to initiate fresh proceedings. 2. In Ext.P4 order, the Rent Control Court was of the view that Order XXIII of the Code of Civil Procedure does not govern rent control proceedings and there are no grounds to permit the petitioner to withdraw from the proceedings. ## **O.P.(RC).No.1955/2013** ## **-:2:-** 3. While attacking the said order, Shri B.Krishnan learned counsel for the petitioner submitted that any defect in the pleadings will enable the petitioner to withdraw with leave and the view taken by the Rent Control Court that Section 23 of the Act does not incorporate the provisions of Order XXIII of the Code of Civil Procedure cannot hold good. 4. It is also submitted by relying upon the decision of the Apex Court in Baniram and others vs. Gaind and others [AIR 1982 SC 789] that as far as a formal defect is concerned, leave can be granted by the court. 5. Another decision of the Apex Court in N.R.Narayan Swamy vs. B.Francis Jagan [(2001) 6 SCC 473] has been brought to our notice by the learned counsel for the respondent to contend that there is no necessity for seeking leave since as far as the plea for eviction under Section 11(3) of the Act is concerned, it is a recurring cause of action. 6. On the first question, namely, Order XXIII of the Code of Civil Procedure should have been really incorporated in Section 23 of the Act, we are of the view that the finding by the Rent Control Court is not legally ## **O.P.(RC).No.1955/2013** ## **-:3:-** sustainable. The provision under Section 23 actually confers additional powers to the court and various specified items under Sub Section (a) to (lc) have been provided there. It does not mean that the court does not have powers other than those enumerated. Going by the decision of this Court in Sukumaran v. Susy Isaac [1985 KLT 1128] actually there is no prohibition to exercise these powers. In the said decision, a learned Single Judge of this Court examined the question whether the absence of provision for filing a Memorandum of Cross Objections or Cross Appeal in the Act will disable a party from filing the same. It was held that “there is no statutory provision enabling any party to a rent control proceedings to file a Memorandum of Cross Objections or Cross Appeal in an appeal filed by the opposite party. The provisions of Order XLI Rule 22 CPC are not inconsistent with any of the provisions of the Rent Control Act. Therefore Order XLI Rule 22 CPC, or in any case the principles contained in that rule, are applicable to the proceedings before the Appellate Authority under the Rent Control Act also”. ## **O.P.(RC).No.1955/2013** ## **-:4:-** 7. The question whether in the absence of enumerated powers or provisions conferring specified powers a Tribunal can act especially for accepting the application for withdrawal was considered in Jacob Varkey vs. Idukki District Co-operative Bank Ltd. [2001 (2) KLT 77] wherein a Division Bench of this Court has taken the view that enumeration of such powers are not necessary. The parties are entitled to withdraw the application filed and the authority has power to grant permission to the party to do so with liberty to file a fresh case after impleading proper parties. The Division Bench after examining various authorities on the point held so interpreting Section 98 of the Co-operative Societies Act, 1969 (Kerala). In the light of the above, we are of the view that the finding by the Rent Control Court that Section 23 of the Act does not permit an application for withdrawal is not correct. 8. The next question is whether the leave sought for by the petitioner could be allowed. Regarding the same, in Baniram's case [AIR 1982 SC 789] a similar issue was considered. Therein a suit was sought ## **O.P.(RC).No.1955/2013** ## **-:5:-** to be withdrawn with liberty to file a fresh suit on same or different cause of action. There the defect was non impleading of a party. The Apex Court has taken the following view in a similar issue: “........... Having considered the fact that non-pleading may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated, we consider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit as stated hereinabove. We accordingly grant the permission subject to the condition that the appellant shall pay 1,000/- by way of₹ costs in this Court within two months from today in addition to any costs paid already under the orders of the High Court.” The reliance placed by Shri B.Krishnan on the said decision is well justified. 9. As far as the question whether the plea under Section 11(3) of the Act will be a recurring cause of action, the Apex Court in a similar matter arising under the Karnataka Act after considering Order XXIII Rule 1 ## **O.P.(RC).No.1955/2013** ## **-:6:-** Sub Rule (4) C.P.C in N.R.Narayan Swamy's case [(2001) 6 SCC 473] has held in para.10 as follows: “10. The aforesaid rule would have no application in a proceeding initiated for recovering the suit premises on the ground of bona fide requirement which is a recurring cause. Order XXIII, Rule 1(4)(b) precludes the plaintiff from instituting any fresh suit in respect of such subject matter or such part of the claim which the plaintiff has withdrawn. In a suit for eviction of a tenant under the Rent Act on the ground of bona fide requirement even though the premises remains the same, the subject matter which is cause of action may be different. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property. .......” The Hon'ble Supreme Court relied on the following paragraph from Vallabh Das vs. Dr. Madan Lal [(1970) 1 SCC 761]: "“The expression 'subject-matter' is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. ## **O.P.(RC).No.1955/2013** ## **-:7:-** Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.” 11. The Court further observed that the mere identity of some of the issues in two suits would not bring about identity of the subject-matter in two suits." 10. In the light of the above, it can be seen that there will not be any bar for filing a fresh eviction petition on the same ground under Section 11(3) of the Act since it is a recurring cause of action after withdrawing the present petition. 11. It is submitted by the learned counsel for the respondent that in this particular case, the respondent has already adduced evidence and therefore he will be prejudiced if the petitioner is allowed to withdraw the same. 12. We are of the view that as far as the permission for grant of withdrawal is concerned, by granting the same, a finality will not be achieved for enabling the respondent to raise a plea under Section 15 of ## **O.P.(RC).No.1955/2013** ## **-:8:-** the Act. The learned counsel for the respondent submitted that since the Apex Court in N.R.Narayan Swamy's case (supra) has held that it will be a recurring cause of action when a party appears for seeking eviction, namely, on the bona fide need pleaded, leave need not be granted by this Court. We are of the view that to avoid any future controversies as far as the two parties are concerned, there will not be any harm in granting leave also. 13. In the light of the above, the petitioner is entitled to succeed. The O.P.(RC) is allowed. We set aside the order passed by the Rent Control Court in I.A.No.122/2013 in R.C.P.No.15/2009 and allow the said application filed by landlord. The petitioner is granted leave to withdraw the said Rent Control Petition with liberty to file a fresh R.C.P. No costs. Sd/- ## **(T.R. Ramachandran Nair, Judge)** Sd/- **(B.Kemal Pasha, Judge)** ms