K. V. Muhammed Raize v. Nalia Haris, Noorie Haris, Rafia Haris and N.V. Haris

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THEHONOURABLEMR.JUSTICEP.B.SURESHKUMAR & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS ``` ``` MONDAY,THE10[TH]DAYOFAPRIL2023/20THCHAITHRA,1945 ``` ``` OP(RC)NO.86OF2023 ``` ``` AGAINSTTHEORDER/JUDGMENTINRCP150/2019OFRENTCONTROL COURT,(ADDITIONALMUNSIFFCOURT),KANNURDATED22.02.2023 JUDGMENTINOP(RC)3/2023OFHIGHCOURTOFKERALADATED 06.01.2023 ``` ## **`PETITIONER/PETITIONER/RESPONDENT:`** ``` K.VMUHAMMEDRAIZE, AGED53YEARS S/OMUHAMMEDRASHID,STEELEMPORIUM, - SOUTHBAZARKANNUR,PIN670002. ``` ``` BYADVV.RAMKUMARNAMBIAR ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONERS:`** - `1 NALIA HARIS` - `AGED 34 YEARS` - `D/O.N.V.HARIS, PERMANENT RESIDING AT -` - `"RAFEEGHAR", P.O.CHORODE, VADAKARA 673 106, NOW RESIDING AT FLAT NO. 16172, PRESTIGE LAKE SIDE, HABITAT, 28/2 SH 35, DEVASTHANAGALU, GUNAJUR VILLAGE, BANGALORE.` - `2 NOORIE HARIS` ``` AGED26YEARS ``` ``` D/O.N.V.HARIS,PERMANENTRESIDINGAT - "RAFEEGHAR",P.0.CHORODE,VADAKARA 673106,NOWRESIDINGAT'KETHANA RESIDENCY',APARTMENTNO.401,1STA MAOINROAD,1495.16THCROSSROAD, ``` OP (RC) No.86 of 2023 2 ``` MUNISWAMPPALAYOUT,PRESTIGELAKE SIDEHABITAT,28/2SH35, DEVASTHANAGALU,GUNAJURVILLAGE. BANGALORE. ``` ``` (PETITIONERS1AND2REPRESENTEDBY THEIRPOWEROFATTORNEYHOLDERAND MOTHERRAFIAHARIS,W/O.N.VHARIS, AGED56YEARS,HOUSEWIFE,RESIDINGAT - VADAKARA672106. ``` ``` 3RAFIAHARIS AGED58YEARS W/O.N.V.HARIS,HOUSEWIFE,RESIDING AT"RAFEEQHAR"P.O,CHOROODE, - VADAKARA673106. ``` ``` 4N.V.HARIS AGED65YEARS S/O.IBRAHIMHAJI,RESIDINGAT “RAFEEQHAR"P.OCHOROODE,VADAKARA, - PIN673106. ``` ``` THISOP(RENTCONTROL)HAVINGCOMEUPFORADMISSIONON 10.04.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` OP (RC) No.86 of 2023 3 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ------------------------------------------- O.P (R.C) No.86 of 2023 ------------------------------------------Dated this the 10[th] day of April, 2023 ## **J U D G M E N T** ## **Sophy Thomas, J.** The petitioner herein is the tenant in RCP No.150 of 2019 on the file of Rent Control Court, Kannur. He is impugning Ext.P5 order of the Rent Control Court in I.A No.2 of 2023. The respondents herein are the landlords. 2. The landlords filed RCP No.150 of 2019, for evicting the tenant on the ground of arrears of rent and bonafide need. The tenant filed counter statement opposing the Rent Control Petition. Thereafter he preferred Ext.P3 petition to amend his counter statement. That was opposed by the landlords. The Rent Control Court dismissed the amendment application vide Ext.P5 order. The tenant mistakenly challenged that order before the Rent Control Appellate Authority which culminated in Ext.P7 order of dismissal, as it was not maintainable. Ext.P6 is the copy of order of this Court, by which OP (RC) No.86 of 2023 4 dismissal of his prayer by the Rent Control Court, to raise a preliminary issue as to the title of landlords 1 and 2, was confirmed. The tenant is challenging Ext.P5 order contending that it is unjust and illegal. 3. The amendment application was opposed by the landlords, as the tenant has no locus standi to challenge the settlement deed No.2872 of 2012, by which landlords 1 and 2 obtained the petition schedule building. The tenant had admitted the landlord-tenant relationship in the counter statement filed by him, and now he cannot withdraw that contention, by way of an amendment. The Rent Control Court dismissed the I.A finding that, the attempt of the tenant is to withdraw the admissions he had set forth in the counter statement. By allowing the amendment, the tenant may change his case completely, and substitute an entirely new case. 4. Heard learned counsel appearing for the petitioner/tenant and learned counsel appearing for the respondents/landlords. 5. According to the petitioner/tenant, the landlords obtained petition schedule building as per settlement deed No.2872 of 2012. For effecting a gift under Mohammedan Shariat Law, one of the essential ingredients is delivery of possession of the property gifted. OP (RC) No.86 of 2023 5 When a property is in possession of the tenant, and the same is gifted, the donor cannot reserve the right to receive rent. In that case, the gift is incomplete and invalid. So, the tenant is contending that, since the original landlords reserved the right to receive the rent from the tenant, the gift is incomplete and invalid, and so the respondents will not get any right over the petition schedule building on the basis of that gift deed. If so, the respondents cannot be the owner of the petition schedule building and hence he is disputing their title. In order to incorporate those pleadings in the counter statement, he filed I.A No.2 of 2023. 6. The respondents pointed out that, the tenant had earlier filed I.A No.3 of 2022, to raise a preliminary issue as to whether respondents 1 and 2 are the landlords of the petition schedule building. That application was dismissed, against which the tenant preferred OP(RC) No.3 of 2023 before this Court. As per Ext.P6 judgment dated 06.01.2023, a Division Bench of this Court dismissed that petition finding that, the tenant preferred such a petition only after listing the RCP for trial. Moreover, in the order in I.A No.3 of 2022, the Rent Control Court had stated that the said issue can be OP (RC) No.86 of 2023 6 decided after taking evidence. After dismissal of OP(RC) No.3 of 2023, the tenant preferred I.A No.2 of 2023, for amending his counter statement for incorporating pleadings, challenging the ownership of respondents 1 and 2 over the petition schedule building. 7. On going through the order impugned, it could be seen that the tenant had admitted the landlord-tenant relationship in the counter statement filed by him, before the Rent Control Court. Now his attempt is to withdraw that statement by way of amendment. Moreover, the tenant being a third party, he has no right to challenge the gift deed by which respondents 1 and 2 obtained ownership and possession over the petition schedule building. 8. The learned Rent Control Court rightly relied on the decision of the Apex Court in _**Life Insurance Corporation of India**_ vs. _**Sanjeev Builders Private Limited and another**_ (2022 KHC 6882) to find that, amendment shall not be allowed if the parties seeking amendment want to withdraw any clear admission made by the party which confers a right on the other side. So, the amendment intending to take away a clear admission made in the pleading, is prohibited. Moreover, the prayer of the tenant to frame preliminary issue as to the OP (RC) No.86 of 2023 7 ownership of respondents 1 and 2 over the petition schedule building, was rejected by the Rent Control Court and it was confirmed by this Court as per Ext.P6 judgment. So, he is trying the other way around to overcome Ext.P6 judgment by way of an amendment application, which will have the effect of withdrawing a clear admission made by him, in his counter statement, admitting the landlord-tenant relationship. So, this original petition is without any bonafides and hence liable to be dismissed. Since the RCP is of the year 2019, the learned Rent Control Court is directed to dispose the case within one month from the date of reopening of the court after summer recess. With this direction, the OP(RC) stands dismissed. Sd/- ## **P.B.SURESH KUMAR JUDGE** Sd/- ## **SOPHY THOMAS JUDGE** smp OP (RC) No.86 of 2023 8 ## **`APPENDIX OF OP (RC) 86/2023`** ``` PETITIONER’SEXHIBITS ``` ``` ExhibitATRUECOPYOFTHERENTCONTROLPETITIONNO.150/2019 P1FILEDBYTHERESPONDENTSHEREINISHEREWITH PRODUCEDANDMARKEDASEXHIBIT ``` ``` ExhibitATRUECOPYOFTHECOUNTERSTATEMENTFILEDBYTHE P2PETITIONERHEREINDATED12.12.2019 ``` ``` ExhibitATRUECOPYOFTHEAFFIDAVITANDPETITIONIN P3IA.NO.2/2023INR.C.P,.NO.150/2019DATED7.1.2023 ``` ``` ExhibitTRUECOPYOFTHECOUNTERSTATEMENTFILEDBYTHE P4RESPONDENTSHEREININIANO.2/2023DATED12.1.2023 ``` ``` ExhibitATRUECOPYOFTHEORDERINI.A.NO.2/2023IN P5R.C.P.NO.150/2019DATED22.2.2023 ``` ``` ExhibitATRUECOPYOFTHEJUDGMENTOFTHISHON'BLECOURTIN P60.P(RC)NO.3.2023DATED6.1.2023 ``` ``` ExhibitATRUECOPYOFTHEJUDGMENTOFTHERENTCONTROL - P7APPELLATEAUTHORITY(ADDITIONALDISTRICTJUDGEII) THALASSERYINR.C.A.NO.35/2023DATED17.3.2023 ``` ``` TrueCopy ``` ``` P.StoJudge ``` ``` smp ```