K.P. Sreejayan v. Dr. K.P. Subramanian (R.C.R. No. 54 of 2008)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 RCRev..No. 54 of 2008 ------------------------------------RCA.120/2007 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT), KOZHIKODE & I.A.NO. 2635/07 IN RCP.194/2004 ON THE FILE OF THE RENT CONTROL COURT ( ADDL.MUNSIFF COURT-II) KOZHIKODE .............................. ## PETITIONER/APPELLANT/PETITIONER(RESPONDENT)1: K.P.SREEJAYAN, S/O.LATE GOVINDAN, AGED 60 YEARS, RESIDING AT KANIYATHPOOTHAKANDIYIL HOUSE, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANAKANNAN ## RESPONDENT/ RESPONDENT/RESPONDENT(PETITIONER): DR.K.P.SUBRAMANIAN, S/O.LATE CHERIYAKKAN, AGED 66 YEARS, RESIDING AT NAYANAM, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADV. SRI.K.JAYAKUMAR FOR CAVEATOR & ADV. SHRI P.B. KRISHNAN. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON 11/12/2008 PASSED THE FOLLOWING: ## **H.L. DATTU, CJ. & K. M. JOSEPH, J.** ## **--------------------------------------------------** ## R.C.R. NO. 54 OF 2008 **--------------------------------------------------Dated this the 11th December, 2008** ## **ORDER** ## **K. M. JOSEPH, J:** The revision petitioner is the tenant. He has filed this Revision feeling aggrieved by the order dated 16/2/2008 passed by the Rent Control Appellate Authority under Section 18 of the Act, dismissing the Appeal preferred by him against the order in I.A. No.2635/07 in R.C.P. 194/04 filed by the respondent. The Application was filed by the petitioner stating essentially as follows: He disputes title of the respondent over the petition schedule building. He learns that the building does not stand in the name of the respondent. He prayed that the question of title may be decided as a preliminary point. 2. The respondent filed a Counter Affidavit denying the statements. He pointed out that deceased Cheriyakkan, the original landlord, had executed a Will in his favour and there was an oral partition. He has also produced Affidavits of all other natural heirs of the admitted landlord, late Cheriyakkan and he contended that there is no bona fides. 3. The Rent Control Court dismissed the Application. He noted that the questions relating to the Will and the partition are matters which require only formal proof and the other matters are to be considered in a dispute between the legal heirs. He also noted that the matter has been protracted till the date of filing the petition and appeals and it was found that there is no bona fides in the petition, and that there was no necessity to decide the question of bona fide dispute of title in this matter. 4. The appellate authority in the Appeal, after referring to Section 18 of the Act and referring to the decision of this Court in Sumathi v. Devasan and others (AIR _**RCR 54/08**_ _**2**_ 1991 KLT 295), dismissed the Appeal, finding it to be not maintainable. In the course of the same, no doubt, the Appellate Authority noted that each case will depend upon the facts and proceeded to further hold that the landlord derived title as per the Will executed by his father along with his brother in the partition and also reference is made to the partition deed, and that it could be seen that the right of the landlord on the basis of the Will and oral partition in no way affects the rights of the parties to the litigation, and that originally the tenant was a tenant of the landlord's father. It is observed by the Appellate Authority that on going through the records and considering the nature of the contentions raised by the tenant, he did not find any reason to conclude that there is any bona fide denial of the title of the landlord so as to infer that the civil court is the competent court to try the case and the Appellate Authority did not find from the pleadings that there is any ground to decide the question of title as a condition precedent for deciding the question of eviction. It is stated that there is no bona fide denial of the title and the refusal of the Rent Controller to decide the point as a preliminary issue, is not appealable. It is also noted that the order is not one finally disposing of the proceedings or is one which affects the rights and liabilities of the parties. 5. We heard the learned Senior Counsel Shri P.N. K. Achan appearing for the petitioner and Shri P.B. Krishnan, learned counsel appearing on behalf of the respondent, Caveator. 6. Shri P.N.K. Achan would point out that this is a case where the Court below has not correctly noticed the Judgment of the Full Bench in Parthakumar v. Ajith Viswanathan (2006 (2) KLT 250). It is pointed out that the Rent Control Petition had been resisted by the petitioner, contending that there was no proof that the respondent, one of the sons of late K.P. Cheriyakkan, is only the landlord of the building, and that he bona fide needs the building. It is also stated that a person of _**RCR 54/08**_ _**3**_ the respondent's status cannot be permitted to trade in optical goods business, as he is a consulting Opthalmologist in several private hospitals in the city of Kozhikode. Shri P.B. Krishnan pointed out that there is no error. He also referred us to the decisions of this Court in Sidharthan v. Hassankutty Haji (1994 (2) KLT 419 besides Sumathi v. Devasan (1991 (1) KLT 453) and Charulatha v. Manju (1994 (1) KLT 133). 7. The application filed by the revision petitioner was one seeking a decision on the question of title of the respondent as a preliminary issue. The Appellate Authority has dismissed the Appeal as not maintainable and found no ground to interfere with the findings of the Rent Control Court. In Sumathi v. Devasan (1991 (1) KLT 453) a learned Single Judge of this Court has held as follows: _"Any order of whatever nature made by the Rent Control Court is not made appealable under S.18 merely because it is an order passed by the Rent Control Court. The expression "an order" cannot be construed as making each and every order, interlocutory or otherwise, appealable. S.18 comprehends only such orders as affect the rights or liabilities of parties. Orders pertaining to matters merely of procedure or evidence or are steps in the proceedings are not appealable. An interlocutory order to be appealable, must vitally affect the right to relief, or defence of a party, if the matter were to proceed to trial on that basis. Though S.18(1)(b) is wide in its terms, an appeal does not lie unless the order in question is finally disposing of the proceedings or is one which affects the rights or liabilities of the parties. It will depend on the nature of the order in a given case, as to whether it is appealable or not. Each case will depend on its own facts. It is true that every order does affect the rights of parties in one sense or other. But that will not make it an order subject to appeal. Apart from the final orders, only those orders which virtually put an end to the proceedings or make it practically impossible for the affected party to get effective relief or to set up or substantiate a_ _**RCR 54/08**_ _**4**_ _defence are rendered appealable. Refusal to try and decide a particular point as a preliminary issue is not such an order affecting the rights of any party. Such an order is not therefore appealable. As stated earlier, everything depends on the nature of the particular order and its impact on the rights or liabilities in issue in the proceedings."_ In the course of the Judgment, the learned Single Judge referred to the decision of the Madras High Court in Maria Goundan v. Ramaswami Goundan (1962 (1) MLJ 106), wherein the Madras High Court took the view that interlocutory orders, such as, the determination of a preliminary point by the Rent Control Court cannot be appealable under Section 9(2) of the Madras Fair Rent Act, 1955. 8. In Charulatha v. Manju (1994 (1) KLT 133), this Court was concerned with the question whether an appeal would lie under Section 18 against the recording in the deposition of witness (no cross). The Court took the view that Section 18 of the Act provides for an appeal against the orders which would affect the rights and liabilities of the parties. Matters relating to procedure for evidence of steps in the proceedings are not appealable. In Sidharthan v. Hassankutty Haji (1994 (2) KLT 419), a Division Bench of this Court was concerned with an order passed by the Rent Control Court directing the tenant to pay the arrears of rent or to show cause why further proceedings should not be stopped and the landlord put in possession. The Court took the view that an appeal under Section 18 is not maintainable. It further held that it did not affect any right or liability of any party. 9. In Parthakumar v. Ajith Viswanathan (2006 (2) KLT 250) a Full Bench of this Court held as follows: _"The Tribunal's jurisdiction is only to decide whether the denial of title or claim for permanent tenancy is bonafide. It is not expected to and does not have jurisdictional competence to enter a finding whether the denial of title is valid or not. It has only jurisdiction to decide whether the denial of title is bonafide or not._ _**RCR 54/08**_ _**5**_ _If it is bonafide, the landlord can sue for eviction before the Civil Court. If it is not bonafide, the Special Tribunal can proceed to exercise its jurisdiction after recording a finding that the denial is not bonafide. A jurisdictional question if raised must normally be decided by the Tribunal before assuming jurisdiction."_ 10. The essential question which arose in the case was whether a person who denies title invoking the second proviso, must admit that he is a tenant. In this case, it may be correct that the Appellate Authority erred in holding that the Appeal was not maintainable. An Appeal may not lie against an order refusing to decide the matter as a preliminary issue. But, an Appeal does lie against an order of the Rent Control Court holding that there is no bonafide denial of title within the meaning of second proviso. If it is found that there is bonafide denial of title, the landlord would have to approach the civil court for eviction. Thus, the lis would terminate in the Rent Control Court. Therefore, it cannot be said that an Appeal would not be maintainable. 11. But, even having found that Appeal is maintainable, learned counsel for the respondent Shri P.B. Krishnan would pose the question whether in the facts of this case, it is necessary or just to remit the matter back for further consideration. He would submit that in the facts and on the findings entered by the Rent Control Court and also the Appellate Authority, it is a clear case where the Authorities are justified in holding that there is no bonafide denial of title. He points out that while it is true that the respondent has relied on a Will executed by his father as also a Partition Deed, it may not be overlooked, that even if one ignores the Will and the Partition Deed, he is still a legal heir of the original landlord and is entitled to sue as landlord under the Rent Control Act. It is pointed out that the proprietory title of the person claiming eviction is irrelevant to decide jurisdiction. It is also pointed out that this is a case where the other legal heirs have sworn to Affidavits acknowledging the _**6**_ _**RCR 54/08**_ right of the respondent. He, no doubt, admits that if ultimately on an evaluation of the merits of the matter, it becomes necessary for him to rely on the Will and Partition Deed, it will render resort to the civil court inevitable and as things stand, there is no need for the matter to be referred to the civil court. He further submits that at this stage it does not necessitate the stoppage of the proceedings before the Rent Control Court. He points out that the Rent Control Petition was filed in the year 2004 and it is at a last stage and only with an eye to further delay the matter that the petitioner has filed the application in question. He also points out that in the Counter Statement of the Revision Petitioner, it is stated as follows: _“5) Now the ownership of the property having vested with the legal heirs of late Cheriyakkan, the landlord who entrusted the building and in the absence of authorization or the consent from remaining coowners the petition filed by one among the several co-owners without the juncture of remaining co-owners is liable to be dismissed due to that sole reason as stated above. The respondent herein specifically deny the ownership of the buildings and hence the same has to be considered as the preliminary issue as per the provisions of law.”_ Learned senior counsel would reiterate his contentions. A perusal of paragraph 5 as aforesaid would appear to show that the petitioner had apparently prayed that the issue regarding denial may be treated as a preliminary issue, even in the Counter. 12. Having considered the facts of the case and heard the submissions of the counsel appearing for the parties, while we agree with the learned senior counsel that the Appellate Authority erred in holding that the Appeal was not maintainable, we are of the view that we need not interfere with the order passed. Both the Authorities have entered into findings that _**RCR 54/08**_ _**7**_ there is no bonafide denial of title. It is not as if when there is a denial, the jurisdiction of the Rent Control Court is ipso facto barred. As held by the Full Bench of this Court in Parthakumar v. Ajith Viswanathan (2006 (2) KLT 250), the only question to be considered is the bonafides of the plea. The question of bonafides is to be decided on evaluation of the facts of the case. It is not in dispute that the respondent is one of the children of the original landlord. Even ignoring the Will and the Partition Deed, it may not be incorrect to hold that the respondent would also be a co-owner and entitled to sue for eviction. In paragraph 5 of the Counter Statement of the petitioner, as already noted, it is specifically contended that the property has been vested in the legal heirs of Cheriyakkan and the absence of authorisation or consent from the remaining co-owners, the petition filed by one among the several co-owners is liable to be dismissed as there is no juncture of the other co-owners. This would necessarily mean that the petitioner admits that the respondent is one of the co-owners of the premises, if the original landlord is treated as having died intestate. Dehors the Will and ignoring the Partition Deed, it could not be said that the respondent is not a co-owner and consequently landlord as defined in the Rent Control Act. It is also to be noted that in this case, it is the case of the respondent that the other co-owners had also signed and delivered affidavits in his favour acknowledging his right. In such circumstances, as things stand, we are of the view that it is not necessary for us to entertain this challenge to the concurrent findings of the Authorities _**RCR 54/08**_ _**8**_ below that there is no bonafide denial of title. In this view of the matter, we find that there is no merit in the Revision Petition and it is accordingly dismissed. Consequently I.A.No.511 of 2008 is also rejected. **kbk.** **Sd/= H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE** **Sd/=** _**// True Copy //**_ _**PS to Judge**_