K. Moideenkutty v. Manipparambil Viswanadhan Nair

**IN THE HIGH COURT OF KERALA AT ERNAKULAM 'CR' PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944** **RCREV. NO. 219 OF 2019** **[AGAINST THE JUDGMENT DATED 15.03.2019 IN RCA NO.43 OF 2018 OF ADDITIONAL DISTRICT COURT, TIRUR AND THE ORDER DATED 08.02.2018 IN RCP NO.7 OF 2015 OF RENT CONTROL COURT, TIRUR]** ## **REVISION PETITIONER:** K.MOIDEENKUTTY AGED 62 YEARS S/O KUNHEEN,KUTTIPARAMBIL HOUSE, SEEB EMPORIUM,KALYANI BUILDING,KUTTIPPURAM,TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV SMT.DEEPA NARAYANAN ## **RESPONDENT:** MANIPARAMBIL VISWANADHAN NAIR, AGED 79 YEARS, S/O KALYANI AMMA,MANIPPURATH HOUSE, KUTTIPPURAM,TIRUR TALUK,MALAPPURAM DISTRICT679571. BY ADVS. MEENA.A ,CAVEATOR SMT.MEENA.A. SRI.VINOD RAVINDRANATH SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## R.C.Rev.No. 219 of 2019 :-2-: **O R D E R 'CR'** ## Shoba Annamma Eapen, J. The respondent-tenant in R.C.P.No.7 of 2015 on the file of the Rent Control Court (Munsiff), Tirur, is the petitioner. The landlord has filed the rent control petition seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It was allowed. The appeal filed by the petitioner herein as R.C.A.No.43 of 2018 under Section 18(1) (b) of the Act was dismissed by the Rent Control Appellate Authority (Additional District Judge), Tirur. Feeling aggrieved thereof, the petitioner has filed this revision petition under Section 20 of the Act. For convenience, the parties are referred to as stated in the Rent Control Petition. 2. The rent control petition was filed by the landlord claiming eviction on the ground of _bona fide_ need. The need urged was that the landlord wanted to start hotel business in the petition schedule shop rooms. It was further contended that the petition scheduled shop rooms are the most suitable ## R.C.Rev.No. 219 of 2019 :-3-: rooms since it has direct access from Kuttipuram bus stand. The claim of the landlord was resisted by the tenant by contending that the petition is hit by Section 15 of the Act since very same need was urged by the landlord in another petition which was dismissed and that the landlord has another building on the immediate east of the petition schedule building wherein a book stall was being conducted by the landlord and it was let out to another person after sending notice to the tenant and the _bona fide_ need now put forth is not genuine. It was further contended that the tenant is depending upon the income derived from the petition schedule shop rooms and is entitled to get protection under the second proviso to Section 11(3) of the Act. 3. Evidence in the case consists of oral testimonies of PW1 and RWs.1 and 2, Exts.A1 to A11, B1 series and X1 to X5. The Rent Control Court, after deliberating upon the said evidence and on hearing both sides, found that the need urged by the respondent-landlord was _bona fide_ and that the ## R.C.Rev.No. 219 of 2019 :-4-: petitioner is liable to be evicted. Challenge made by the petitioner to the order of eviction by filing appeal before the Appellate Authority was not successful. Hence, filed this revision. 4. Heard the learned Senior Counsel Sri.Sethumadhavan instructed by Advocate Smt.N.Deepa appearing for the petitioner and Sri.Vinod Ravindranath, learned counsel appearing for the respondent. 5. The issues that arise for consideration in this Rent Control Revision are, whether the petition is hit by section 15 of the Act, whether the need of the landlord is _bona fide,_ whether the tenant is entitled to protection under first proviso to Section 11(3) of the Act and whether any interference is warranted on the judgment in R.C.A.No.43 of 2018 whereby the order of eviction granted by the Rent Control Court in R.C.P No.7 of 2015 stands confirmed. 6. The petition schedule shop rooms are on the ground floor of a three storeyed building belonging to the landlord. ## R.C.Rev.No. 219 of 2019 :-5-: The tenant took the petition schedule shop rooms for conducting a textile business. The landlord intends to start a hotel business. The petition schedule shop rooms are facing the Kuttipuram bus stand which is in a prime commercial area. 7. Challenging the order of eviction, the learned Senior Counsel submitted that earlier the landlord had filed a rent control petition urging the very same relief, need and purpose and the said petition was dismissed by the rent control court finding that there is no _bona fide_ need. Therefore, the eviction sought for the same relief, which was canvassed by the landlord in the earlier rent control petition, is hit by Section 15 of the Act. It is also submitted that, PW1 himself admitted that there is no change of circumstances for filing a second petition and unless and until the landlord proves that there is a change of circumstance, the petition is hit by Section 15 of the Act. The learned counsel also relied on the decisions reported in **Lakshmi v. Labbah Kunju** ## R.C.Rev.No. 219 of 2019 :-6-: ## **Ameer Hamsa** (2005 KHC 1017) **and Ayanikkattu** **Unniraja and others v. K.P.Gurudas** (2014(1) KHC 473). It is further submitted that change of residence from Chennai to Kuttipuram has got nothing to do with the present petition since the landlord is a permanent resident of Chennai. It is also submitted that the landlord earlier started a book stall near the petition schedule room and later it was rented out to various tenants. It is the argument of the learned senior Counsel that more spacious and more attractive rooms are in the possession of the landlord for starting hotel business and there is no special reason to start a hotel in the petition schedule shop rooms. 8. Per contra, the learned counsel appearing for the landlord submitted that the circumstances necessitated by the present rent control petition is due to the change of permanent residence from Chennai to Kuttipuram, by purchasing land at Kuttipuram in 2012 and constructing a house therein. The learned counsel submitted that, the ## R.C.Rev.No. 219 of 2019 :-7-: landlord has no avocation and having experience in conducting hotel business, in order to augment his income he wants to start a hotel in the petition schedule shop rooms. It is also submitted that there are many rooms available in the locality and the tenant being a wealthy person has many other source of income. According to the learned counsel, changed circumstances give fresh cause of action to the landlord for seeking eviction. 9. We have considered the rival contentions. We perused the records and orders. 10. The subject matter of this revision is the shop rooms bearing door Nos.KTPM XVI/556 & 557 on the ground floor of a three storeyed building belonging to the landlord. Admittedly, the landlord had filed RCP No.6 of 2007 wherein _bona fide_ need for conducting hotel business was also averred in the petition. The present rent control petition is in respect of the same rooms which were the subject matter of the earlier rent control petition. It is relevant to note that when ## R.C.Rev.No. 219 of 2019 :-8-: the earlier rent control petition was filed, the landlord was mainly concentrating his hotel business in Chennai. On a perusal of Ext.X1, it is seen that the earlier RCP was filed under Sections 11(2)(b), 11(4)(i) and 11(4)(ii) of the Act and in the pleadings in the Rent Control Petition, the landlord expressed his willingness to start a hotel business in the petition schedule building. He was not very serious about starting a hotel business at Kuttipuram, since he was having the very same business at Chennai. Thereafter, in the year 2012, the landlord purchased a property at Kuttipuram Village and he has settled at Kuttipuram by constructing a house. It is thereafter, he has filed the present rent control petition. Hence, the circumstances have changed considerably. In order to augment his income he wants to start hotel business for which he is having expertise. Now his daughter-in-law is conducting the hotel business in Chennai. In the decision reported in **Korin v. Indian Cables Co.Ltd** (AIR 1978 SC 312) it was held by the Apex Court that there is no _res_ ## R.C.Rev.No. 219 of 2019 :-9-: _judicata_ when circumstances have changed. 11. It is a universally accepted principle that an issue which has attained finality by a judicial decision cannot be reagitated. This principle has found place in the administration of justice through the legislation and also by the judicial practice based on the public policy. These principles are often modified by the statute in its purport and application. Section 11 of Civil Procedure Code contains comprehensive principles relating to finality of litigation and it lays down the principles of _res judicata_ , which rests on the famous legal maxims (1) _Interest reipublicae ut sit finis litium_ (means that it is in the interest of the State that there be a limit to litigation) (2) _Nemo debet bis vexari pro una et eadem causa_ (means that no one should be vexed twice on the same cause of action) . In law, there are differences between _res judicata_ and _issue estoppel_ . The principle of issue estoppel would arise in subsequent litigation when 'fact in issue' is decided in previous litigation. ## R.C.Rev.No. 219 of 2019 :-10-: 12. The difference between _res judicata_ and _issue estoppel_ has been elaborately considered by this court in **Janakiamma and others v. Bhaskaran Nambiar** (2014 (4) KLT 931) wherein the judgment was rendered by one among us (Muhammed Mustaque.J). It was held as follows:- _“10.Rent Control Court is a court of limited jurisdiction. The scope of enquiry for ordering eviction is based on the enumerated grounds. The grounds of eviction are decided based on the determination of 'fact in issue'. The grounds envisaged for eviction are capable of determining substantiative rights of the parties vis-a-vis determination of landlord-tenant relationship. What is referred in Section 15 of the Act is only on reagitating issues. Therefore, what is contemplated under Section 15 of the Act is reagitating issues in grounds of eviction between parties which are substantially decided in the previous litigation. On the other hand, res judicata is a part of principles of procedure which determines rights and liabilities itself and it bars reagitating the matter between the same parties. On the other hand, “issue estoppel” being rule of evidence, it allows parties to reagitate rights and liabilities on grounds other than on issues which are not previously litigated. One of the difference between Section 11 of the Code of Civil Procedure and Section 15 of Act is, former refers to “matter directly and substantially in issue” and in the latter, the word “matter” is conspicuously absent, and it denotes only “facts in issue”. This is obvious because grounds of eviction in the Rent Control Act are based on personal action relatable to the landlord or tenant ,which by very nature is recurring. The “matter substantially in issue” referred in Section 11 of the Code of Civil Procedure, is words of wider import to relate a cause of action available at the time of action relating to the “matter”. The expression “substantially” used in Section 15 of the Act would only indicate that issue must have been decided on merits. Section 15 of the Act only denotes reagitating a “fact in issue”, which is not same as res judicata as_ ## R.C.Rev.No. 219 of 2019 :-11-: - _understood under Section 11 of the Code of Civil Procedure. Thus we are of the view, the principles contained in Section 15 of the Rent Control Act are only “issue estoppel” and not of “res judicata._ - _11. As has been noted what is embodied under Section 15 of the Act is “facts in issue” and not the “matter in issue” and, thus, subsequent petition is maintainable on new facts. A landlord may have causes of action to file eviction petition under Section 11(3) based on present need or future need. If the claim of the landlord based on present need is rejected, that does not bar him to file fresh eviction petition under Section 11(3) of the Act, that was available to him as a future need, at the time of seeking eviction previously. In this case, though it would have been possible to the landlord to claim eviction, based on the future need as well, however, that was not projected in the earlier rent control petitions. But that does not bar the landlord from filing a second petition based on the subsequent events that arose after the earlier rent control petitions, as we have noted, the principles of res judicata, as comprehended under Section 11 of the Code of Civil Procedure, would not apply. “_ ## 13. Further, in the decision reported in **Mavelikkara - ' - Ex servicemen s Co operative Society v. Rajamma** (1986 KHC 120), this Court has held that the adverse finding regarding the _bona fide_ need on petition filed in 1970 cannot operate as _res judicata_ in a subsequent petition filed in 1982. Though the ground urged in 1982 and in 1970 is for _bona fide_ need for own occupation of the building by the landlord, the facts and circumstances contributing to the need may not be the same. In the present case, there is a change of ## R.C.Rev.No. 219 of 2019 :-12-: circumstance, since he has purchased property in 2012 at Kuttipuram and is residing therein permanently by constructing a house and hence, it is not difficult to hold that the issues are not substantially the same in the two petitions and it is held so. Hence, the need projected in the second petition under Section 11(3) on different facts that the landlord has purchased a property and constructed a house therein and is permanently residing in the house, is perfectly maintainable and is not hit by Section 15 of the Act. 14. Regarding the availability of other rooms in the building the tenant admitted in the cross-examination that the vacant rooms are on the first floor of the building but has not adduced any evidence to show that those rooms are suitable for conducting hotel business. The tenant cannot decide the suitability of the rooms for the proposed business of the landlord and the tenant has no right to dictate the landlord where to start business. The landlord, on the other hand, has clearly proved and deposed that the rooms on the ground ## R.C.Rev.No. 219 of 2019 :-13-: floor have road frontage and direct access from Kuttipuram bus stand and it is suitable for hotel business. In the decision reported in **Antony P.V.** v. **M/s.Swastik Sweet House and others** (2017 (2) KHC 951), this Court held that the tenant cannot dictate to the landlord that he should squeeze himself into unsuitable premises so as to enable him to occupy the tenanted premises. The landlord has pleaded and proved the special reason for claiming the petition schedule shop rooms and the first proviso to Section 11(3) is not applicable against the landlord. As regards the second proviso, the tenant could not adduce evidence to prove any of the elements under the said proviso and no specific ground was raised by the tenant in the revision petition as well. 15. In **Gireeshbabu T. P.** v. **Jameela and others** [2021 (5) KHC SN 30], this Court held that in order to satisfy the requirement of Section 11(3) of the Act, a _bona fide_ need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of ## R.C.Rev.No. 219 of 2019 :-14-: the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. 16. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 17. The courts below after proper appreciation of the evidence adduced, have come to the conclusion that the present petition is not hit by Section 15 of the Act, since there is change in the circumstances and the need projected by the landlord for conducting business in the petition schedule shoprooms is _bona fide_ . We, in exercise of the powers under Section 20 of the Act, do not find any reason to hold that the said finding is illegal, irregular or perverse. ## R.C.Rev.No. 219 of 2019 :-15-: ## 18. In the decision reported in **Rukmini Amma Saradamma** v. **Kallyani Sulochana and others** [(1993) 1 SCC 499], the Apex Court has elaborately considered the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and it was held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 19. In the light of the said legal principles and in view of the discussions as above, we are of the definite view that the requirement projected by the landlord is _bona fide_ and ## R.C.Rev.No. 219 of 2019 :-16-: the landlord has established the same. There is no reason to interfere with the order of the Rent Control Court or the judgment of the Appellate Authority, which are not suffering from any illegality, irregularity or impropriety. Hence this Revision Petition fails. 20. We accordingly dismiss this Rent Control Revision. However, considering the request made by the learned senior counsel to afford six months' time for vacating the premises, we grant time upto 30.04.2023 to the tenant to vacate the tenanted premises on the following terms:- - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, undertaking to vacate the tenanted premises within the time granted by this Court. - (ii) Arrears of rent, if any, will be paid to the landlord within two months from today. - (iii) The tenant will continue to pay the monthly rent till the vacant possession is handed over to the ## R.C.Rev.No. 219 of 2019 :-17-: landlord. - (iv) Needless to say, in the event of the tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the tenant will not be entitled for the benefit of this order. - (v) No costs. sd/- **A.MUHAMED MUSTAQUE, JUDGE** sd/- **SHOBA ANNAMMA EAPEN,** **JUDGE** MBS/