Mandoli Baby Muraleedharan v. KattaDeemmal Devi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939** **RCRev..No. 88 of 2015 (E) -------------------------** **AGAINST THE JUDGMENT IN RCA 2/2011 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 26-02-2014** **AGAINST THE ORDER IN RCP 16/2009 of MUNSIFF COURT/RENT CONTROL COURT, VATAKARA DATED 27-11-2010** **REVISION PETITIONER(S)/RESPONDENT/PETITIONER:** **--------------------------------------------** **MANDOLI BABY MURALEEDHARAN, AGED 44 YEARS, D/O.GOPALAN PANICKER, KUNNUMMAKKARA AMSOM, THATTOLIKKARA DESOM, VATAKARA TALUK.** **BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS** **RESPONDENT(S)/APPELLANT/RESPONDENT:** **-----------------------------------** **KATTADEEMMAL DEVI, AGED 61 YEARS, D/O.KRISHNAN NAIR, HOUSE WIFE, KUNNUMMAKKARA AMSOM, NELLIACHERI DESOM, ONCHIYAM POST, VATAKARA TALUK, KOZHIKODE.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** CR ## K.HARILAL & P. SOMARAJAN, JJ. --------------------------R.C.R. No.88 of 2015 --------------------------Dated this the 20[th] day of July, 2017 ## O R D E R ## **Somarajan, J.** Aggrieved by the judgment rendered by the Rent Control Appellate Authority/Additional District Judge, Vatakara in R.C.A.No.2/2011 dated 26.2.2014, the landlord came up with this Revision. 2. The appeal was filed before the Rent Control Appellate Authority challenging the orders passed by the Rent Control Court under Section 11(2)(b) and the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”) and it was disposed of by the Appellate Authority, against which this revision is filed. 3. Before going into the merits of the case, it appears to us that it is necessary to resolve the question RCR.88/15-E :2: whether the Rent Control Appellate Authority has jurisdiction in maintaining an appeal against orders passed under the second proviso to Sections 11(1) and 11(2)(b) of the Act, simultaneously. 4. Section 11(1) of the Act with its second proviso is extracted below for reference: “ **Eviction of tenants** .- (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent RCR.88/15-E :3: Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.” (emphasis supplied) Going by sub-section (1) of Section 11, it is clear that certain matters, which would ordinarily come within the jurisdiction of a Civil Court, have been taken up and brought under Section 11 of the Act; ie., in the matter of eviction of a tenant from the tenanted premises. Otherwise, the same would be governed by Sections 106 and 111 of the Transfer of Property Act and the jurisdiction to deal with the matter would lie with the Civil Court. It is by virtue of the non-obstante clause in sub-section (1) of Section 11, the above said matters were brought under the purview of the RCR.88/15-E :4: Act insofar as the area wherein the Act was made applicable. There are two provisos attached to Section 11(1) of the Act, which are really exceptions. The first proviso excludes the tenant whose landlord is the State Government or the Central Government or other public authority notified under the Act. The exception under the second proviso would come into play only when the Rent Control Court records a finding that the denial of title of the landlord or claim of permanent tenancy by the tenant is a bona fide one. When the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall record a finding, whether it is bona fide or not. The second part of the second proviso to Section 11(1) further says that if the Rent Control Court records a finding that the denial of title to landlord, or claim of permanent tenancy is bona fide, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such court may pass a decree for eviction on any of the grounds mentioned RCR.88/15-E :5: in the section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. When it was found by the Rent Control Court, that the denial of title of the landlord or claim of right of permanent tenancy is bona fide, it has no other option but to refer the parties to a Civil Court to sue for eviction of the tenant and, in such a situation, the Civil Court can pass eviction of the tenant on any of the grounds mentioned under Section 11 of the Act, notwithstanding the finding that the denial does not involve forfeiture of lease or that the claim is unfounded. This would mean that an adjudication, whether the denial of title of the landlord or claim of right of permanent tenancy, can be done only by a Civil Court, notwithstanding the finding recorded by the Rent Control Court. When there is a finding by the Rent Control Court that the denial is bona fide, or the claim is bona fide, it ceases to have jurisdiction to proceed further with the Rent Control Petition as it is an exception carved RCR.88/15-E :6: out of the non-obstante clause engrafted under Section 11(1) of the Act. In short, when the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court will get jurisdiction to proceed further with the Rent Control Petition, only when it records a finding to the effect that the claim is, or the denial is, not bona fide. 5. This would show and settle the legal position that the exception under 2[nd] proviso to section 11(1) of the Act would not operate unless a finding is recorded by the Rent Control Court that such denial or claim is bona fide. So, in order to bring the matter within the exception under 2[nd] proviso to section 11(1) of the Act, there should be a finding recorded by the Rent Control Court that the denial or claim is bona fide. It is the said finding that really determines the jurisdiction and the forum in which the further proceedings could be taken, and, in the case of finding that the denial is not bona fide, the Rent Control Court can proceed further RCR.88/15-E :7: with the Rent Control Petition. If it is answered positively finding that the denial or the claim is bona fide, the Rent Control Court cease to have jurisdiction over the matter and the exception would operate, then it is up on the civil court to deal with the matter. Further, the exception under the 2[nd] proviso to Section 11(1) of the Act is only a partial exception, and does not take away the grounds under which an eviction can be ordered under Section 11 of the Act, and, to that extent, the “non-obstante clause” with the expression “except in accordance with the provisions of this Act” engrafted under Section 11 would operate, even though a different forum was substituted in the place of Rent Control Court, the statutory authority constituted under the Act, and it would take away the application of general law, viz. Sections 106 and 111 of the Transfer of Property Act. 6. When there is a finding by the Rent Control Court, that the denial or the claim is not bona fide, it determines RCR.88/15-E :8: the jurisdiction vested with the Rent Control Court, constituted under the Act, as the forum having jurisdiction over the matter under Section 11 of the Act, to order eviction of tenants. In other words, such a finding determines the jurisdiction of the Rent Control Court to proceed further with the matter, by virtue of the nonobstante clause in Section 11(1) of the Act; and the right of either the landlord or the tenant to usurp the jurisdiction of civil court would stand as fully and completely taken away, conferring jurisdiction only to the Rent Control Court. But, at the same time, the nature of finding is based on the factual matrix, though it determines the jurisdiction to further proceed with the matter. Then the question comes, whether it would operate as either res judicata or by virtue of application of principle analogous to res judicata under Section 15 of the Act on a later stage of the same proceedings. The Apex Court in **Isabella Johnson v. Susai [1990 KHC 509 : 1990 (2) KLT 968 : 1991 (1) SCC 494** RCR.88/15-E :9: **: AIR 1991 SC 993],** overruling the decision rendered in **Avtar Singh and others. v. Jagit Singh and Another** ## **[1979 (4) SCC 83]** , held that: “But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in S.11 of the Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede RCR.88/15-E :10: the law of the land.” The same view has been reiterated by a Bench comprising of three Judges of the Apex Court in **Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through his Lrs. [1990 (1) SCC 193].** Earlier, in **Madhura Prasad Bajoo Jaiswal and others v. Dossibai N.B. Jeejeebhoy [1970 (3) SCR 830 : AIR 1971 SC 2355],** a Bench comprising of three Judges of the Apex Court has taken the view that a decision on the question of jurisdiction of the court or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit and held that:- “A question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly by an erroneous decision if the Court RCR.88/15-E :11: assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise, because, if those decisions are considered as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature.” This Court in **Assainkutty Haji V. and others v. K.P.Rajalakshmiamma and Another** , reported in **[2012 (4) KLT 674]** , had taken the view that a finding entered into by the Rent Controller on the preliminary point regarding denial of title cannot be reagitated at a later stage. A finding recorded by the Rent Control Court under the second proviso to Section 11(1) would always be a finding relating to the right of parties to the proceedings, though it really determines the jurisdiction to further proceed with the matter and the forum in which it has to be RCR.88/15-E :12: further proceeded. The issue under the second proviso to Section 11(1) is really not connected or related to jurisdiction of the court. But the issue is purely depending on the right of the parties, whether there is any bona fide claim of permanent tenancy or denial of title of the landlord. 7. It is true that there is no adjudication of denial of title to the landlord or claim of permanent tenancy by the Rent Control Court and there cannot be such an adjudication by that Court and hence the principle of res judicata would not come into play regarding those issues; the denial of title or claim of permanent tenancy. But, when it has decided to proceed further in the matter by recording a finding that the claim is not bona fide, it would operate in a subsequent stage of the same proceeding, as the said finding determines, further scope of an enquiry/decision by a civil court on the issue and hence the principle analogous to res judicata as embodied under Section 15 of the Act would come into play. RCR.88/15-E :13: 8. Here in this case, a finding was recorded by the Rent Control Court under the second proviso to Section 11(1) of the Act that the denial of title of landlord is not bona fide and proceeded further in the matter under the Rent Control Petition and passed an order under Section 11 (2)(b) of the Act. Till that time, the finding recorded by the Rent Control Court under Section 11(2)(b) of the Act has not been challenged either by way of appeal or revision or otherwise and it has become final and conclusive. So, it is not permissible to reopen the said issue in an appeal which was filed against an order pertaining to any of the grounds for eviction under Section 11 of the Act. An appeal filed against an order under Section 11(2)(b) of the Act as well as the finding recorded under the second proviso to Section 11(1) of the Act hence barred to the extent of finding recorded under the second proviso to Section 11(1) of the Act. So, the appeal filed can only be taken as against the order under Section 11(2)(b) of the Act alone. The Rent RCR.88/15-E :14: Control Appellate Authority went wrong in exercising its jurisdiction, discussing the merits and demerits of the finding recorded under the second proviso to Section 11(1) of the Act by the Rent Control Court. It is not permissible to file an appeal challenging both the orders passed under the second proviso to Section 11(1) of the Act and an adjudication rendered under any of the grounds for eviction incorporated under Section 11 of the Act simultaneously. 9. Further, it is seemed to be very strange that the Appellate Court had given much relevance to Exhibits B1 to B6 documents, so as to enter into a finding that the denial of landlord-tenant relationship and the claim of the tenant for kudikidappu are bona fide. We are in darkness what actually prompted the Rent Control Appellate Authority to enter into such a finding based on Exhibits B2 to B4 Electricity Bills, Exhibit B5 certificate issued by the Panchayat President and Exhibits B6(a) to (i) information obtained under the Right to Information Act. These RCR.88/15-E :15: documents did not have much relevance in the question of title attached to the property either to the landlord or to somebody else. Even the basic principles were overlooked by the Rent Control Appellate Authority. 10. The observation made by the Rent Control Court, that in Kerala, there is a prevalent practice that electricity connection will be granted only to the landlord/original owners and not to the tenant, is seemed to be so strange. The passbook issued or the certificate issued by the Panchayat President or the document obtained under the Right to Information Act will not confer any right or interest in favour of the tenant. It is also brought to our notice that the very same tenant, while in the box, has admitted that more than Rs.1,000/- is required for annual maintenance of the roof of the said building. 11. No case of payment of rent or the rate of rent set up by the tenant. Hence there is no reason for any interference with the order passed by the Rent Control RCR.88/15-E :16: Court under Section 11(2)(b) of the Act. In the result, the Revision is allowed. The order of the Rent Control Appellate Authority is hereby set aside and restored the order passed by the Rent Control Court under Section 11(2)(b) of the Act. The order passed under Section 11(2)(b) will be subject to the application of Section 11(2)(c) of the Act. No order as to costs. Sd/K.HARILAL, Judge. Sd/P.SOMARAJAN, Judge. okb. //True copy//