K. V. Varghese v. Dr. T. K. Suresh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940 ## RCRev..No. 295 of 2018 AGAINST THE JUDGMENT DATED 28.03.2018 IN RCA 28/2016 of RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM AGAINST THE ORDER DATED 29.01.2016 IN RCP 162/2014 of RENT CONTROL COURT, ERNAKULAM ## REVISION PETITIONER/APPELLANT/RESPONDENT: K.V. VARGHESE, AGED 63 YEARS, S/O LATE K.O VARGHESE, CC 65/ 38, 1ST FLOOR, COLLIN TRAVELS, KANNAN BUILDING, LISSIE JUNCTION, KOCHI- 18. BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA ## RESPONDENT/RESPONDENT/PETITIONER: DR. T.K SURESH, AGED 75 YEARS, S/O T.S KANNAPPAN, DEEPA, KURUPATHU LANE, VELIYANNOOR, THRISSUR- 680 001 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR No. 295/2018 -2- ## **ORDER** ## K. Harilal,J. The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently under Sections 11(3) and 11(4) (iv) of the Kerala Buildings(Lease and Rent Control) Act, 1965 _(hereinafter referred to as 'the Act')_ . The parties are referred to as in the Rent Control Petition. 2. The petitioner filed R.C.P. No. 162 of 2014 against the respondent before the Rent Control Court, Ernakulam, seeking an order of eviction under Sections 11(3) and 11(4)(iv) of the Act. According to the petitioner, the building in which the petition schedule shop room forms a part is an old building, which was constructed 60 years ago. Now, the building stands in a dilapidated condition and the same is not suitable to the locality, when comparing with the other buildings in the said locality. So, he _bona fide_ intends to reconstruct the entire building in which the petition schedule shop room also forms a part. His son is a M.C.A. graduate and he is at present working in Abu Dhabi. He wants to return and settle down in Kochi and thereafter, he intends to start a business of computer utilising the entire ground floor of the proposed reconstructed building. Thus, the RCR No. 295/2018 -3- building is in such a condition, as it needs reconstruction and the petitioner requires _bona fide_ to reconstruct the same. That apart, he is in _bona fide_ need of the petition schedule shop room, after reconstruction, for starting the said business for his son. 3. The respondent resisted the claim for eviction under both grounds, contending that the requirement for construction and the need for the petition schedule shop room for starting a business for his son are not _bona fide_ and they are ruse for eviction only. According to him, the present petition is barred by Section 15 of the Act, as the petitioner had earlier filed R.C.P. No.95 of 2008 for similar reliefs against the tenants, including the revision petitioner in respect of the same building. Further, it is contended that he is entitled to get protection under the second proviso to Section 11(3) of the Act. 4. The petitioner had filed altogether five Rent Control Petitions with respect to the same building in which the petition schedule shop room forms a part. Therefore, all the Rent Control Petitions were tried jointly and allowed, as prayed for. In appeal, the Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality, propriety and regularity of the concurrent findings, whereby the courts below have granted an order of eviction under Sections 11(3) and 114)iv) of the RCR No. 295/2018 -4- Act, are assailed in this revision. 5. Heard the learned counsel for the revision petitioner. 6. Though these revision petition is filed on various grounds, the learned counsel for the revision petitioner/tenant focused the sole point that the Rent Control Petitions is barred by Section 15 of the Act. But, the courts below failed to evaluate the legal position in its correct perspective. The learned counsel contends that earlier the petitioner had filed R.C.P. No.95 of 2008 for similar reliefs against the same respondents in respect of the same building and got it dismissed summarily. Since the parties, subject matter and the reliefs sought for are same, the present Rent Control Petitions is barred by Section 15 of the Act. No other point has been raised before us in this revision. 7. At the outset, we must remind ourselves that the scope and extent of interference envisaged under Section 20 of the Act are very limited and confined to legality, propriety and regularity of the findings only. It follows that this Court sitting in revision is not inclined to re-appreciate the factual findings, unless it is perverse or vitiated by non-consideration of material evidence or misreading of evidence. Therefore, we are inclined to consider the question, whether there is any illegality or impropriety in the concurrent findings of the courts below that the present Rent Control Petitions is not barred by Section RCR No. 295/2018 -5- 15 of the Act. 8. It is the case of the respondent that earlier the petitioner had filed R.C.P. No.95 of 2008 for similar reliefs against the same respondent in respect of the same building; but got it dismissed summarily. Therefore, the present Rent Control Petition, which was filed with respect to the same subject matter against the same respondent with the same reliefs would be barred by Section 15 of the Act. It is true that the parties, subject matter and the reliefs sought for are same. Let us examine the statutory mandate under Section 15 of the Act in this context. Section 15 of the Act reads as follows: _“ Section 15 -Res judicata_ _15. Decisions which have become final not to be reopened.- The Rent Control Court shall summarily reject any application under sub-section (2), (3), (4), (5), (7) or sub-section (8) of section 11 which arises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded by such law.”_ 9. On an analysis of the aforesaid Section, we find that the RCR No. 295/2018 -6- principle of _res judicata_ alone are adopted i.e., when the cause of action for the second suit being merged in the judgment of the first one, it does not survive any more and _res judicata_ ousts the jurisdiction of the court. But, on a closure examination, we further find that the Rent Control Act is a self contained Act and C.P.C. is not applicable, except as provided under Section 23 of the Act. Hence, Section 11 of the C.P.C. and constructive _res judicata_ are extraneous to Rent Control Act. In other words, the principle alone is adopted in Section 15 of the Act. The principles of constructive _res judicata_ or provisions contained in Order II Rule 2 cannot be applied to subsequent proceedings. ( _Radha Lekshmy v. Indian Saree House_ [2014(2) KLT 770]). The statutory requirement constitute _res judicata_ under Section 15 of the Act are: (1)the parties must be same (2)issues must be substantially same and as have been finally decided or purports to have been finally decided in a former proceedings under the Act. 10. Going by the impugned judgment, it could be seen that though the earlier Rent Control Petition was filed by the petitioner himself against the same respondent with respect to the same subject matter with similar reliefs, that Rent Control Petition was dismissed RCR No. 295/2018 -7- summarily for default. That apart, it is discernible from the impugned judgment that R.C.P. No.95 of 2008 was filed under Section 114)iv) of the Act only and in that petition, there was no claim for eviction under Section 11(3) of the Act. Therefore, it cannot be said that the reliefs sought for in the present Rent Control Petitions and R.C.P. No.95 of 2008 were same. 11. According to the petitioner, subsequent to the filing of R.C.P. No.95 of 2008, there was a proposal to acquire the petition schedule property for the Metro Rail Project and hence the respondent could not obtain licence and permit for the purpose of reconstruction and accordingly R.C.P. No.95 of 2008 was happened to be dismissed for want of prosecution. But, subsequently, Metro Rail Corporation dropped the acquisition of the petition schedule property and hence the respondents were able to acquire new permit and plan for the purpose construction of the petition schedule shop room. He abandoned the earlier R.C.P. No.95 of 2008, when he realised the fact that the property is under acquisition and he will not get building permit and plan for reconstruction. Subsequently, he got the building plan and permit when the Metro Rail Corporation dropped their plan of acquisition and thereafter the petitioner has filed the present Rent Control Petition with fresh building plan and permit. RCR No. 295/2018 -8- 12. As rightly observed by the courts below, there is no reason to disbelieve the above reasoning. Obviously, there is a change of circumstance, after the dismissal of R.C.P. No.95 of 2008. It is not disputed that the earlier R.C.P. No.95 of 2008 was dismissed for default only and no issue was decided substantially and finally in the earlier R.C.P. No.95 of 2008. In other words, the entitlement of an order of eviction under Sections 11(3) or 114)iv) of the Act was not considered or decided finally and substantially in the earlier R.C.P. No.95 of 2008. Therefore, it can be safely concluded that the present R.C.P is not barred by _res judicata._ The above view is supported by the decision of this Court in _Pius v. Albina Rozario_ [1990(1) KLT 104]. In the said decision it was held as follows: _'The only provision in the Act is S.15 which requires the Rent Control Court to summarily reject any application made under the specified sub-section of S.11, which raises between the same parties or parties under whom they claim, substantially the same issues as have been finally decided or purported to have been finally decided in a former proceeding under the Act. Evidently this provision will not apply as there is no final decision when an application is dismissed for default. Even the dismissal on merits of a petition for eviction on the ground of bona fide need, does not bar a second petition. The position must a fortiori be so when the earlier dismissal was one for default, without a decision on merits.'_ RCR No. 295/2018 -9- The above view is further supported by the earlier decision of this Court in _Govindan v. Subaida Beevi_ [1997(1) KLT 910]. In the said decision it was held as follows: _“the section refers to only issues finally decided or purports to have been finally decided in a former proceeding under the Act. It was held that going by the wording of S.15, application filed under various sub-sections of S.11 of the Act are directed to be summarily rejected only if substantially same issues arising for consideration in such applications are shown to have been either expressly or purported to have been decided already in a proceeding under the Act. Thus, the import is on a final decision on the issues, and not a summary rejection on technical grounds”._ 13. There is no illegality or impropriety in any of the findings whereby the appellate authority dismissed the appeal. Hence, this revision petition fails and is dismissed accordingly. However, the learned counsel for the revision petitioner seeks one year's time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given six months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, RCR No. 295/2018 -10- within a period of one month from today. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of six months from today. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ RCR No. 295/2018 -11-