Jayaprakash v. Jose Kuttanchery and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 RCRev..No. 188 of 2004(I) ------------------------RCA.79/2001 of RENT CONTROL COURT, THRISSUR RCP.98/1996 of RENT CONTROL COURT,THRISSUR .................... ## PETITIONER/APPELLANT/RESPONDENT: ---------------------------------------------------- JAYAPRAKASH, AGED 45, BUSINESS, S/O. VALIYIL KARUPPAKUTTY,THIRUNELLUR DESOM, MULLASSERY AMSOM, CHAVAKKAD TALUK, REP.BY HIS POWER OF ATTORNEY HOLDER, P.L.ANIL KUMAR, AGED 45,S/O.PANDARATHIL LAKSHMANAN,POOVATHUR DESOM ELAVALLI VILLAGE,POOVATHUR, CHAVAKKAD TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/RESPONDENTS/LEGAL HEIRS OF ORIGINAL PETITIONER: -------------------------------------------------------------- 1. JOSE KUTTANCHERY, AGED 44, KUTTANCHERY HOUSE, "NANDAVANAM", PULLAZHY VILLAGE, OLARY, THRISSUR TALUK. 2. FRANCIS, AGED 53, KUTTANCHERY HOUSE, "NANDAVANAM", PULLAZHY VILLAGE, OLARY, THRISSUR TALUK. 3. ELSY, AGED 51, D/O. LATE KUNJANNAM, KUTTANCHERY HOUSE, KURIACHIRA, CHIYYARAM VILLAGE, THRISSUR TALUK. 4. K.A.VARGHESE, AGED 48, S/O. LATE KUNJANNAM, KUTTANCHERY HOUSE, KURIACHIRA, CHIYYARAM VILLAGE, THRISSUR TALUK. 5. TESSY, AGED 44, D/O. LATE KUNNJANNAM, KUTTANCHERY HOUSE, KURIACHIRA, CHIYYARAM VILLAGE, THRISSUR TALUK. 6. DAVIS, AGED 34, S/O. LATE KUNNJANNAM, KUTTANCHERY HOUSE, KURIACHIRA, CHIYYARAM VILLAGE, THRISSUR TALUK. 7. DAISY BABY, AGED 39, D/O. LATE KUNNJANNAM, KADAVIL HOUSE, 1/69, PAZHAMUKU ANGADI, OLLUR, THRISSUR TALUK. - *8. K.B.MOHANDAS, S/O. KOOLIYATTU BALAKRISHNAN - RESIDING IN ARANATTUKARA VILLAGE AND DESOM CIVIL LINE ROAD, THRISSUR TALUK, THRISSUR -4. (ADDL. 8TH RESPONDENT IS IMPLEADED AS PER ORDER DT.16.7.2008 IN I.A. NO.1480/2008 ADV. SRI.P.VIJAYA BHANU FOR R1 TO R7 SRI.TONY MATHEW FOR R1 TO R7 SRI.N.SUKUMARAN FOR ADDL.R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR NO.188 OF 2004 ORDER ON I.A. NO.1596 OF 2008 IN RCR NO.188 OF 2004 DISMISSED SD/- PIUS C.KURIAKOSE, JUDGE 21.6.2010 SD/- PIUS C.KURIAKOSE, JUDGE SD/- C.K.ABDUL REHIM, JUDGE /TRUE COPY/ PA TO JUDGE ## **C.R.** ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. --------------------------R.C.R No. 188 OF 2004 -------------------------Dated this the 21[st] day of June, 2010** ## **O R D E R** ## _**Pius C.Kuriakose, J.**_ The tenant, against whom the Rent Control Court and the Appellate Authority has ordered eviction concurrently on the ground of arrears of rent under Section 11(2)(b) of the Rent Control Act, is the revision petitioner. The facts are unusual and we may have to dwell on them at some length. The building situated on the High Road within the area of Thrissur Municipal Corporation, is part of a larger commercial building which belonged to one Kunhannam the predecessor-in-interest of respondent Nos.1 to 7 in the RCR. On 25.10.1988, the above said Kunhannam (hereinafter referred to as 'the original land lady') and the revision petitioner entered into an agreement for sale and purchase of the petition scheduled building. On the terms of the above agreement, which is marked as Ext.B1, the revision petitioner is to pay a total consideration of Rs. 4 lakhs to the original land lady for purchase of the entirety of the original land lady's right in the building in question. The period till 30.12.1998 is fixed under Ext.B1 for performance of the mutual obligations. On RCR No.188/04 2 the date of Ext.B1, a sum of Rs.1,50,000/- is paid to the original land lady as advance towards the sale consideration. According to the revision petitioner, at the instance of the original land lady, the period for performance of the mutual obligations under Ext.B1 was extended till 25.1.1989. By 25.1.1989 also, Ext.B1 was not performed allegedly due to default on the part of the original land lady. Therefore, on 25.1.1989, the period of performance Ext.B1 was extended till 30.1.1989 on payment of Rs.5,000/- more by the revision petitioner to the original land lady towards consideration. Thereafter also, on 30.1.1989, 28.2.1989 and 31.3.1989, the period of Ext.B1 agreement was further extended up to 19.4.1989. In the meanwhile, on 15.4.1989, Ext.A1 rental agreement was executed between the revision petitioner and the original land lady. On the basis of Ext.A1, a relationship of landlord and tenant was created between the original land lady and the revision petitioner. Four days thereafter, i.e., on 19.4.1989 by making yet another endorsement on Ext.B1, the period of Ext.B1 was extended by six more months. At the time of this extension, a sum of Rs.45,000/- more was paid by the revision petitioner to the original land lady. RCR No.188/04 3 2. On the basis of Ext.B1 and the various endorsements on Ext.B1 including Ext.B1(c), which pertains to its last extension on 19.4.1989, the revision petitioner resisted the RCP instituted by the original land lady raising various contentions. Inter alia, it was contended that in Ext.A1 notwithstanding the jural status of the revision petitioner is not as that of a tenant, instead it is that of a prospective purchaser in possession on the basis of an agreement for purchase. Accordingly it was contended that the RCP instituted on the basis of Ext.A1 document earlier to Ext.B1 sale is not maintainable in law. The statutory authorities on appreciating the evidence recorded by the Rent Control Court consisting of Exts.A1 to A13, B1 to B27, C1, C1(a) and C2 and the oral evidence of PW1, Rws 1 and 2 and CW1 came to the conclusion that the jural statuts of the revision petitioner was that of a tenant governed by Act 2 of 1965. On the basis that rent was in arrears and the same was not discharged despite statutory notice under Section 11(2)(b) ordered eviction on the ground under Section 11(2)(b). The eviction order passed by the Rent Control Court was confirmed after a reappreciation of the evidence by the Appellate Authority. RCR No.188/04 4 3. In this revision filed by the tenant (the respondent in the RCP) various grounds are raised assailing the judgment of the Appellate Authority. Sri. G.Sreekumar, the learned counsel for the revision petitioner addressed extensive arguments based on the grounds. The submissions of Sri. G.Sreekumar were resisted before us by Sri. N.Sukumaran, the learned counsel for the additional 8[th] respondent assignee of the original land lady's right pending the present revision. Very strong reliance was placed by Sri. G.Sreekumar on the judgment of the Supreme Court in **R.Kanthimathi and Another v. Beatrice Xavier** (2009 (9) SCC 339). Referring to Ext.A1 rental agreement relied on by the original land lady for maintaining the original RCP, Sri. G.Sreekumar submitted that the revision petitioner acquired interest in the building by virtue of Ext.B1, which is about four months prior toExt.A1. Sri. G.Sreekumar submitted that even if it is assumed that the parties have agreed to have a change in their jural status over the building pursuant to Ext.A1, then also Ext.B1(c) will show that the parties have further agreed to restore their original status in respect of the building as Vendor and prospective Vendee. On the basis of the RCR No.188/04 5 observations of the Supreme Court in Para.6 of the judgment, Sri. G.Sreekumar would strongly argue that the intention of the party is, as clearly discernible from Ext.B1(c) is to bring forth a change in their relationship as one of Vendor and prospective Vendee from the relationship of landlord and tenant as per Ext.A1. Sri. G.Sreekumar would also refer to the proviso to Section 109 of the Transfer of Property Act and submit that at any rate, the additional 8[th] respondent in the RCR who purchased the building only on 28.2.2007 (during the pendency of the RCR in this Court) cannot raise any claim over the rent arrears which had accrued prior to his purchase of the building. 4. Sri. N.Sukumaran, the learned counsel appearing for the additional 8[th] respondent would remind us of the contours of the revisional jurisdiction of this Court under Section 20. He submitted that under the above jurisdiction, unless there are illegalities, irregularities or improprieties, taking the decisions of the statutory authorities this Court will not be justified in interfering with the findings entered by them. Focusing our attention to endorsements of Ext.B1, Sri. N.Sukumaran submitted that even in Ext.B1 sale RCR No.188/04 6 agreement, clear reference is made to Ext.A1 and it is stated therein that possession of the building in question is given to the revision petitioner on the basis of Ext.A1 and not on the basis of Ext.B1 or any agreement pursuant to Ext.B1. According to Sri. N.Sukumaran, the revision petitioner who is a tenant is estopped by provisions of the Indian Evidence Act from contending that the original land lady is not the land lady and that he is not her tenant. Answering the argument of Sri. G.Sreekumar based on the proviso to Section 109 of TP Act, Sri. N.Sukumaran drew out attention to the recitals in Sale Deed No.15/81 of 2007 on the basis of which the building in question was purchased by the additional 8[th] respondent and members of his family. He submitted that what is purchased is not only ownership over the building but also the right to recover the rent in arrears and also the right to execute the eviction order passed in favour of the original land lady. Therefore, according to Sri. N.Sukumaran, the argument based on the proviso to Section 109 of TP Act and for that matter the argument that the additional 8[th] respondent will not qualify as decree holder is not available to the revision petitioner. In this context, Sri. N.Sukumaran referred also to the statutory definition of RCR No.188/04 7 the term 'Landlord'. 5. We have very anxiously considered the rival submissions addressed at the Bar. We have carefully gone through the order of the Rent Control Court and the impugned judgment of the Rent Control Appellate Authority. We notice that the ground of arrears of rent was not the only eviction ground which was invoked by the original landlady. She had invoked the ground of cessation of occupation under Section 11(4)(v) also. The Rent Control Court and the Appellate Authority have concurrently declined the order of eviction on the ground of cessation of occupation. The original landlady does not challenge the judgment of the Rent Control Appellate Authority confirming the order declining eviction on the ground of cessation of occupation. We, in this Rent Control Revision need therefore be concerned only with the legality, regularity and propriety of the eviction order passed against the revision petitioner on the ground under Section 11(2)(b). 6. Ext.P1 is certainly an agreement for sale of the petition schedule building by the original landlady to the revision petitioner/tenant. It is trite that merely by executing an agreement for RCR No.188/04 8 sale even if it be by a registered instrument, the prospective vendee will not acquire any right or interest over the property covered by the agreement except perhaps a charge for the money advanced to purchase the property when the agreement fails not due to the vendee's default under Section 55(6)(b) of the T.P. Act. Section 53A of the T.P. Act creates an exemption to the Rule that a mere agreement for sale will not confer possession or title over the property. Section 53A can have application only in cases where possession is given or permission to continue possession is granted by virtue of the agreement for sale. The learned Appellate Authority has appreciated the evidence in this case particularly Ext.B1 and all the endorsements thereon correctly and found that in the instant case possession was given to the revision petitioner not in furtherance of or by virtue of Ext.B1 but clearly as per Ext.A1 lease agreement. It is true that the term of Ext.B1 sale agreement was extended several times. But then, all the endorsements in Ext.B1 including Ext.B1(c) will show that they refer to Ext.A1 and that the extension of the periods of Ext.B1 was done recognizing the revision petitioner's status to be that of a lessee by virtue of Ext.B1 only. We RCR No.188/04 9 are therefore, of the view that there is no warrant for interference with the finding of the Appellate Authority that the jural status of the revision petitioner at the time when the RCP was instituted till the original landlady conveyed ownership of the building to the additional eighth respondent during the pendency of this revision is as a tenant under the original landlady. 7. One fails to understand why the revision petitioner did not think it in terms of instituting appropriate proceedings for specifically enforcing Ext.B1 agreement as against the original landlady. The sale deed in favour of the additional eighth respondent it is seen is executed by the original landlady only after the period prescribed for instituting a suit for specific performance has expired. 8. This Court by order in I.A. Nos.1480/08 and 1596/08 allowed the additional eighth respondent to come on record as an assignee of the original landlady invoking Rule 10 of Order 22 CPC. Though this Court has observed that the question whether the assignment deed will create automatic landlord - tenant relationship can be considered in the RCR, Sri.G.Sreekumar was unable to convince us as to why the additional eighth respondent will not RCR No.188/04 10 qualify as an assignee decree holder. Reading of the recitals will show that the entirety of the original landlady's rights including the right to recover the rent in arrears and the right to execute the eviction order passed by the Appellate Authority in favour of the original landlady has been assigned. For establishing an eviction ground under Section 11(2)(b) it is not necessary that a landlord proves the bona fides of his claim. Once landlord-tenant relationship is established and it is shown that rent in arrears is not discharged within the period of the statutory intimation notice under Section 11 (2)(b) proviso which is to be mandatorily issued, eviction order under Section 11(2)(b) will follow. The fourth proviso to sub Section 3 of Section 11 deals specifically with situations where a landlord after obtaining an order of eviction transfers his right in respect of the building to another person. The said proviso expressly provides that a transferee will not be entitled to be put in possession on the strength of the eviction order passed in favour of the transferor unless the transferee proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family and dependents on him. There may be good reason for recognizing RCR No.188/04 11 the principles underlying the fourth proviso to sub Section 3 of Section 11 to cases where the landlord is bound to prove the bona fides of his need or claim for obtaining eviction. Nature of the ground under Section 11(2)(b) being what it is, it is clear to our mind that an eviction order obtained by the assignor landlord can be executed ordinarily by the assignee. 9. But in this particular case there arises other questions also. The original landlady collected a sum of Rs.2 lakhs from the revision petitioners as advance sale consideration. Whether the original landlady is entitled to appropriate that amount and the interest thereon and if not whether the revision petitioner is entitled to have adjustment of that amount and interest against the rent presently found to be in arrears are the questions. We are not inclined to decide those questions in this revision as it is seen that the statutory authorities have not addressed these questions. We are of the view that these questions can be considered by the Rent Control Court in a prospective petition to be filed by the revision petitioner under Section 11(2)(c) for getting the eviction order vacated. As decision on these questions will require an enquiry to be conducted by the Rent RCR No.188/04 12 Control Court we are inclined to grant to the revision petitioner four month's time from today for moving the Rent Control Court with appropriate petition under Section 11(2)(c). The result of the above discussion is as follows:- 1) The RCR is dismissed confirming the eviction order passed under Section 11(2)(b). The revision petitioner is granted four month's time from today to move under Section 11(2)(c) for getting the order vacated. The question whether the original landlady is entitled to appropriate the sum of Rs.2 lakhs received by her from the revision petitioner and the interest thereon and the further question whether the revision petitioner can claim adjustment of such amount against the rent and interest found to be due will be decided by the Rent Control Court in the proceedings under Section 11(2)(c). Parties are directed to suffer their respective costs in this revision. **PIUS C.KURIAKOSE** **C.K.ABDUL REHIM (JUDGE)** 13 RCR No.188/04 vps RCR No.188/04 14