Kolyankandy Thoduvayal Fatimabi v. K.K. Sheeba and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944** **REVIEW PETITION NO. 209 OF 2021** **AGAINST THE ORDER DATED 02.02.2021 IN R.C.Rev.NO.297 OF 2016 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/RESPONDENT:** **KOLYANKANDY THODUVAYAL FATHIMABI AGED 44 YEARS, D/O.LATE MAZMMOOTTY HAJI, KEEZHUR AMSOM DESOM,THALASSERY TALUK,KANNUR-670703.** **BY ADV CIBI THOMAS** ## **RESPONDENTS/REVISION PETITIONERS:** - **1 K.K.SHEEBA D/O.KARUNAKARAN,CHIRAN FOOTWEAR AND STATIONARY, IRITTY (PO), KANNUR-670703.** - **2 MEETHALE VEETTIL KALLIYANI, MEETHALE HOUSE,KALLUMUTTY, PAYAM AMSOM DESOM,IRITTY(PO), KANNUR-670703.** - **3 K.SONITHA, D/O.SASIDHARANKYPRATH VALAPPIL HOUSE, NEAR MUZHAPPILANGAD HIGH SCHOOL, MUZHAPPILANGAD(PO), KANNUR-670662.** - **4 SHARON KUMAR, S/O.SADIDHARAN, S/O.K.K.SHEEBA, CHIRAG FOOTWEAR AND STATIONARY,IRITTY, KANNUR-670703.** **BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI RAJ CAROLIN V. M.K.SUMOD** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON** **18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 ## **O R D E R** ## Ajithkumar, J. The respondent in the Rent Control Revision is the review petitioner. It is inter alia contended that the judgment in O.S.No.165 of 2007 of the Munsiff’s Court, Kuthuparamba, and also the judgment in A.S.No.160 of 2010 of the Additional District CourtII, Thalassery, upholding the genuineness of the gift deed which is Ext.A1 in R.C.P.No.14 of 2007 of the Rent Control Court (Munsifff), Kuthuparamba, upon which this Rent Control Revision has arisen, was not brought to the notice of this Court while rendering the Order dated 02.02.2021 in this Rent Control Revision. Therefore, the said Order is said to have gone wrong and this petition happened to be filed to review the same invoking Section 114 and Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. 2. Brief facts, which require mention for the disposal of this Review Petition, are the following: R.C.P.No.14 of 2007 was filed before the Rent Control Court, Kuthuparamba, by the petitioner along with her father, Meradan Mammu Haji seeking eviction of the respondents-tenants. Arrears of rent and bona fide of the review petitioner-landlady for her own 3 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 occupation were the grounds. As per the order dated 21.08.2009 eviction was ordered on the ground of bona fide need. The respondents-tenants preferred an appeal under Section 18(1)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, which ended in dismissal as per judgment dated 15.07.2015. The respondents thereupon filed R.C.Rev.No.297 of 2016 before this Court under Section 20 of the Act. 3. On 08.04.2021, when this matter came up for admission, notice was ordered to the respondents by speed post. On 27.07.2021, after hearing both sides, an order of interim stay of the proceedings in R.C.P.No.14 of 2007 was granted for a period of three months. The order of stay has been extended from time to time and is still in force. 4. Heard the learned counsel appearing for the review petitioner and also the learned counsel appearing for the respondents. 5. Only question to be considered is whether there is sufficient ground for the review of Order dated 02.02.2021, as envisaged in Order XLVII, Rule 1 of the Code. 6. On 01.02.2021, this Court dictated Order in the Revision 4 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 Petition, however, on the request of the learned counsel for the petitioner herein, by stating that a vital aspect was omitted to be brought to the notice of the Court, the matter was re-heard. On 02.02.2021, this Court allowed the Rent Control Revision and remanded the case to the Rent Control Court with a direction to afford the parties an opportunity to amend the pleadings or to adduce fresh evidence, if parties so choose. 7. One of the findings in the Order dated 02.02.2021, in the light of the contention of the respondents herein that Ext. A1 is a gift deed not acted upon and hence not valid, is that the courts below did not get an opportunity to bestow attention to the question regarding the validity of Ext.A1. That had sinuated this Court to find further that the order of the Rent Control Court and the judgment of the Appellate Authority were not rendered after considering the necessary and relevant facts, which resulted in entering a wrong finding regarding the bona fides of the need put forth by the review petitioner-landlady. 8. The petitioner-landlady claimed that she obtained the petition schedule shop room as per Ext.A1 gift deed. In that capacity, she along with her father, who executed Ext.A1 gift deed, 5 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 had sought eviction. The respondents resisted the Rent Control Petition by setting forth a contention that the said gift deed was a sham document. Although no specific point regarding genuineness of Ext.A1 was raised, the Rent Control Court entered a finding that the contention of the respondents that Ext.A1 deed was not a valid gift deed could not be accepted. The Appellate Authority concurred with the said finding while confirming the order of eviction under Section 11(3) of the Act. 9. The learned counsel appearing for the petitioner would submit that in the light of the aforesaid findings, it was quite incorrect to submit before this Court while considering the Rent Control Revision that the genuineness of Ext.A1 was yet to be decided and therefore the bona fides of the landlady would have to be considered in the light of such contentions. The learned counsel further would submit that without bringing the judgments in O.S.No.165 of 2007 and also in A.S.No.160 of 2010, raising such a contention was quite inappropriate. Suppression or rather not disclosing about the said judgments resulted in this Court passing a wrong order and therefore that Order is liable to be reviewed. 10. The learned counsel appearing for the respondents, on 6 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 the other hand, would submit that the Order of remand was not merely on the point, whether or not Ext.A1 is genuine, but also by directing the Rent Control Court to reconsider whether the need urged by the landlady is bona fide or not. The learned counsel for the respondents would also submit that it was more the duty of the learned counsel of the review petitioner to bring to the notice of this Court the judgments in O.S.No.165 of 2007 and A.S.No.160 of 2010. 11. In **Kamlesh Verma v. Mayawati and others [(2013) 8 SCC 320]** , the Apex Court while considering the scope of the review jurisdiction has held: "20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" have been interpreted in **Chhajju Ram v. Neki [AIR 1922 PC 112]** and approved by this Court in **Moran Mar Basselios Catholicos v. Most Rev Mar Poulose Athanasius [AIR 1954 SC 526]** to mean "a reason sufficient on grounds at least analogous to those specified in the rule.” 7 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 12. R.C.P.No.14 of 2007 was disposed of on 21.08.2009. R.C.A No. 105 of 2009 was disposed of on 15.07.2015. O.S.No.165 of 2007 was decided on 22.06.2010 and A.S.No.160 of 2010 was decided on 15.07.2015, copies of which are now produced by the review petitioner. When the judgments in the suit and the appeal came into existence much before this Court considering R.C.Rev.No.297 of 2016, it was the duty of the learned counsel on either side to bring those judgments to the notice of this Court. Instead, it is seen that it was categorically contended by the learned counsel for the respondents before this Court that the claim of title to the petition schedule shop room by the landlady was based on a sham document, Ext.A1 gift deed, and the same could not be countenanced. It was in the wake of that contention, this Court happened to observe as follows: “8. In this background, it is contended by the learned counsel for the revision petitioners/tenants that Ext.A1 gift deed was not acted upon. We have reservations about the sustainability of such a plea in a proceeding for eviction under the Act. In our view, it is in the realm of a Civil Court to pronounce on the genuineness and legality of Ext.A1 gift deed. It is trite, in order to complete a gift under the Muhammadian Law, three things are essential; 8 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 (i) there should be a declaration of gift (ii) there should be an acceptance of gift and (iii) there should be delivery of possession to complete the gift. Learned counsel for the revision petitioners pointed out a statement made by the first petitioner as PW1 on oath that she did not get possession of the building pursuant to Ext.A1. Even if we give a margin to this version of PW1 that the building was outstanding in the possession of the tenants at the time of Ext.A1, the contention raised by the tenants has some force in the factual background established by documentary evidence in this case. Without expressing any opinion on the genuineness of Ext.A1, we find that totality of the facts now put forward before this Court in this revision were not considered by the authorities below.” 13. It may be noted that the Munsiff's Court, Kuthuparamba, specifically had considered the genuineness of Ext.A1 in its judgment. The findings of the learned Munsiff in that regard are as follows:- “14. Plaintiffs cannot be heard to contend that gift is not accepted. It is to be noted that what is required is the acceptance of the gift during the life time of the donor. Here in this case there is evidence to prove that the defendant had accepted the gift during her life time of the donor. In this context it is pertinent to note that in R.C.P.14/07 Meradan Mammootty Haji is the second petitioner. A perusal of Ext.B2 shows that Meradan 9 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 Mammootty Haji getting himself impleaded in R.C.P.14/07 as second petitioner unequivocally declared that the defendant is the landlord of the premises and she got the premises by virtue of the gift deed. So the contention that gift is not accepted could not be appreciated. It cannot be said that impugned gift is not acted upon. It is to be noted that during the life time of the donor the defendant along with the donor filed a Rent Control Petition declaring that the defendant is the landlord and she obtained the property by virtue of the impugned gift deed. So it cannot be said that the gift deed is not acted upon. Further impugned document contains a clear and unambiguous declaration of total divestment of property. Undisputedly the deed of gift is a registered one. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.” 14. Additional District Court, Thalassery, while deciding A.S.No.160 of 2010 re-appreciated the evidence and rendered the finding with respect to the genuineness of Ext.A1 in the following words: “11. xx xx Here the suit is filed questioning the validity of the document. The defendant filed R.C.P.14/07 before the Munsiff Court and in the said RCP Meradan Mammootty Haji, the father of the defendant was impleaded as 2nd petitioner and he admitted the execution of the gift deed 10 ## R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 and also the acceptance of the same. The execution and acceptance of the gift deed is a concern of the father and daughter and third parties never got any right to challenge the same. The executant of the gift deed admitted that the same was accepted by the donee, that ends the matter. Nobody can challenge the same when there is an admission from the donor that the gift deed was accepted. This shows that there is no cause of action to the appellants/plaintiffs to challenge the gift deed.” 15. When the competent civil court rendered the said findings in a suit between the same parties and the same has become final, it was their duty to bring the said decisions to the notice of this Court, instead of canvassing for a fresh finding about the genuineness or not of Ext.A1. However, this Court was kept in dark insofar as the said judgments were concerned. Curiously enough it was submitted that genuineness of Ext.A1 was yet to be decided. That lapse resulted in this Court entering a finding that the genuineness of Ext.A1 has to be decided by a competent civil court. We express our anguish on the said lapse on the part of the counsel appearing for not only the respondents-tenants but also the review petitioner-landlady. That omission on account of non-furnishing of the essential materials before this Court is a sufficient reason compelling this Court to review the Order dated 02.02.2021, in the 11 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 light of the law laid down by the Apex Court mentioned hereinbefore at paragraph No. 11. 16. R.C.Rev.No.297 of 2016 could not have been allowed by remanding the matter to the Rent Control Court, had the judgments in O.S.No.165 of 2007 dated 22.06.2010 and in A.S.No.160 of 2010 dated 15.07.2015 been produced before this Court. The question regarding the genuineness of Ext.A1 being a concluded matter, a further consideration of that issue is, in fact, barred by the principle of res judicata contained in Section 11 of the Code of Civil Procedure, 1908. Therefore, it is incorrect to say that the bona fides of the need urged by the review petitioner needs a reconsideration after deciding the genuineness of Ext.A1. The Order of remand is thus based on wrong premises and, we are of the view that the Order in question is liable to be reviewed and recalled. 17. As regards the bona fides of the need urged by the review petitioner-landlady, the findings rendered by the authorities below have not been assailed on the basis of any other tenable contentions. Also, regarding the application of the first and second provisos to Section 11(3) of the Act, there is no serious contention for the respondents. In the said circumstances, we are of the view 12 R.P.No.209 of 2021 in R.C.Rev.No.297 of 2016 that the concurrent finding of the authorities below that the respondents are liable to surrender vacant possession of the petition schedule premises to the review petitioner-landlady under Section 11(3) of the Act, does not require interference for the reason of impropriety, irregularity or illegality. The result of allowing the Review Petition, therefore is that the Rent Control Revision should have to be dismissed. ## Accordingly, - i) The Review Petition is allowed, - ii) The order dated 02.02.2021 in R.C.Rev.No.297 of 2016 is recalled, and - iii) R.C.Rev.No.297 of 2016 is dismissed. Sd/- ## **ANIL K.NARENDRAN JUDGE** ## **Sd/-** **P.G. AJITHKUMAR JUDGE** dkr