M/S. POOMKUDY AUTO SERVICE (P) LTD. v. Parshanth Raghuvaran and R. Naveen Kumar

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.M.BABU ## MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938 RCRev..No. 337 of 2016 -------------------------RCA 78/2014 of I ADDL.DISTRICT COURT, ERNAKULAM RCP 113/2012 of III ADDL.MUNSIFF COURT, ERNAKULAM (RENT CONTROL) ## REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------- M/S. POOMKUDY AUTO SERVICE (P) LTD. XXXII/1134, PREETHI BUILDING, KOCHI 25, REPRESENTED BY ITS MANAGING DIRECTOR JOHN A POOMKUDY, AGED 66 YEARS, RESIDING AT XII/1, LINK HEIGHTS, PANAMPILLY NAGAR, KOCHI 36. BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA ## RESPONDENTS/RESPONDENTS/PETITIONERS: -------------------------------------- ## 1. PARSHANTH RAGHUVARAN, AGED 40 YEARS, S/O M.K. RAGHUVARAN, RESIDING AT PREETHI, PALARIVATTOM, KOCHI -25 ## 2. R. NAVEEN KUMAR, AGED 44 YEARS, S/O M.K. RAGHUVARAN, RESIDING AT PREETHI, PALARIVATTOM, KOCHI 25. R1 BY ADV. SRI.R.PADMARAJ ,CAVEATOR BY ADV. SRI.P.J.ANTONY JOSEPH MARIADAS BY ADV. SRI.R.AJITH KUMAR [V.K.EDOM] BY ADV. SMT.M.K.SAMYUKTHA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 7.11.2016, THE COURT ON 19-12-2016 PASSED THE FOLLOWING: ## **K.T.SANKARAN & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - ## R.C.R.337 of 2016 - - - - - - - - - - - - - - - - ## Dated 19[th] December, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** **“CR”** ## A.M.Babu,J - 1.Misjoinder of parties and causes of action. This is one of the matters involved in this revision. 2.Two landlords sought the eviction of their common tenant. Only one petition was filed. It was filed under Section 11(3), 4(iii) and (8) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). The ground under Section 11(8) was withdrawn by the landlords. The ground under Section 11(4)(iii) was rejected by the Rent Control Court. The ground under Section 11(3) was decided in favour of the landlords. The tenant was directed to vacate. The tenant appealed. The Appellate Authority dismissed the appeal. The tenant is in revision. **RCR.337/2016** 2 - 3.Parties are referred to in this order either as landlords and tenant or as they are shown in the rent control petition. - 4.The case of the landlords on their need for own occupation is stated below : The rooms shown in the 'A' and 'B' schedules to the petition are two adjacent rooms. The 1[st] petitioner owns the 'A' schedule room. The 'B' schedule room is the second petitioner's. Both the rooms are in the occupation of a common tenant. The landlords need vacant possession of both the rooms. They propose to do the business of manufacture and sale of furniture in the said two rooms and also in a vacant space of 825 square feet. They do not have any other building to do the proposed business. Their need is bona fide. - 5.The tenant, a company, contends as under : The two rooms are held by the company under two separate and **RCR.337/2016** 3 distinct leases. Therefore a single petition for eviction is not maintainable. The alleged need is not bona fide. The 'A' and 'B' schedule rooms are not suitable for the landlords to do business. They have other rooms in their possession. The tenant is entitled to be protected under the 2[nd] proviso to Section 11(3) of the Act. 6.Heard the learned counsel on both sides. 7.There are a few admitted facts. The petitioners are brothers. They, their sister and father own different portions of a shopping complex. It is a three storied building. A portion of the ground floor is owned by the first petitioner. The second petitioner owns the remaining portion of the ground floor. The other two floors are owned by the sister and the father of the petitioners. The 'A' schedule room belongs to the first petitioner. The second petitioner owns the 'B' schedule room. The 'A' and 'B' schedule rooms are adjacent **RCR.337/2016** 4 rooms. The respondent company is the tenant of both the rooms. The company holds the rooms under separate leases. A space measuring 825 square feet on the ground floor is owned and possessed by the first petitioner. The above are admitted facts. - 8.The tenant challenges the maintainability of the petition. There are two rooms, two landlords and two distinct leases. Therefore, according to the tenant, the landlords should file separate petitions. The tenant contends that a single petition by two landlords to evict one tenant holding under two separate leases is not maintainable. Misjoinder of parties and causes of action is the precise objection. - 9.Misjoinder of parties and causes of action is not a grey area in the rent control law. In an unreported decision (C.R.P.No.714/1992) a Division Bench of this Court has taken the view that the rent control legislation does not **RCR.337/2016** 5 contemplate a single application against separate tenants holding separate lease arrangements. Another Division Bench in **Sulthan v. Mohanan (2000 (3) KLT 338)** has held that there cannot be any objection to a single petition being maintained for eviction if the claim is for re-construction of the entire structure. Yet another Division Bench noticed the aforesaid conflicting views. That led to the pronouncement of the Full Bench in **Jamal v. Safia Beevi (2005 (2) KLT 359)** . Answers (ii) and (iii) given by the Full Bench to the reference read thus : (ii) Landlord can prefer an application under Section 11(4)(iv) against various tenants who are occupying distinct portions of the same structure since the tenants are jointly interested in the causes of action and the defence available to all the tenants would be by and large common and hence there will not be any misjoinder of causes of action or misjoinder of parties. (iii) Landlord cannot unite different causes of action in a single petition filed against various tenants whether they are in occupation of same building or different buildings. Such a petition would be bad for misjoinder of causes of action and misjoinder of parties. **RCR.337/2016** 6 10.The Apex Court in **Gopalakrishna chetty v. Ganeshan (AIR 1975 SC 1750)** has held that a single petition to evict tenants from different tenancies is maintainable. That was a case where the landlord sought the eviction of his tenants under Section 14(1)(b) of the Madras Buildings (Lease and Rent Control) Act contending that he bona fide required the entire building for demolition and re-construction. ## 11.In **Kunhamu v. Arunkumar (ILR 2010 (4) Kerala** **896)** a Division Bench of this Court has considered and interpreted the decision of the Full Bench in **Jamal's** case (supra). The Division Bench has referred to the Supreme Court in **Om Prakash Srivastava v. Union of India - (2006) 6 SCC 207** - to hold what is 'cause of action'. The Division Bench said: “On appreciating the judgment of the Supreme Court and the various authorities referred to by the Supreme Court in the said judgment it can be concluded that the cause of action for a petition for eviction under Section 11(3) is essentially the **RCR.337/2016** 7 conception of a genuine need in the mind of a given landlord to occupy the tenanted premises either by himself or by any of his dependent family members. As cause of action takes in the whole bundle of facts which a plaintiff or a petitioner will have to establish, if traversed, for obtaining relief, it can be stated that cause of action for a proceeding under Section 11(3) of Act 2 of 1965 will include the establishment of a landlord-tenant relationship between the parties, the unwillingness on the part of the tenant to vacate despite being informed of the landlord's need and the absence of statutory prohibitions/interdicts such as the third proviso to sub-section (3), the first proviso to sub-section (3) and sub-section (9) of S. 11”. (paragraph 7). “As for this case which is filed under S.11(3) we have already found that the cause of action is one and the same and that the same is a common or joint cause of action in respect of one and the same corpus, ie the entire building portions of which are occupied by the two tenants. The cause of action basically is the conception of a need in the mind of the landlord to occupy the entire building for the purpose of doing business.” (paragraph 9). It was concluded that one petition was sufficient notwithstanding the judgment of the Full Bench. To say so it was said that the cause of action of the landlord to evict his tenants under Section 11(3) of the Act was one and the same. 12.The trial court and the appellate authority have relied **RCR.337/2016** 8 on the reported decisions referred to above. The court and the authority found that the single petition of the landlords was not barred by any misjoinder. But the reported cases were cases where there were different tenants holding under different leases under the same landlord. The case on hand is quite different. 13.Here there is only one tenant. That tenant holds two rooms under two separate leases. Landlords are two. They are not co-owners of the two rooms. They are independent owners. The first petitioner exclusively owns the 'A' schedule room. The second petitioner is the sole owner of the 'B' schedule room. The first petitioner may have a cause of action under Section 11(3) of the Act to evict his tenant from the 'A' schedule room. The second petitioner may also have a cause of action under Section 11(3) to evict the same tenant from the 'B' schedule room. These two causes of action for two persons cannot be said to be one and the same. The **RCR.337/2016** 9 distinct causes of action of two landlords to evict their common tenant cannot be blended into one. Their causes of action are distinct and separate, and not one. Their causes of action may be identical, but not the same. Two landlords independently owning two rooms bringing one petition to evict their common tenant holding under two separate leases amounts to misjoinder of parties and causes of action. The contention of the tenant on misjoinder of parties and causes of action has been a valid contention. The contrary findings of the Rent Control Court and the Appellate Authority cannot be approved. 14.But the tenant was no way prejudiced by reason of the misjoinder of parties and causes of action. All contentions the tenant could take had been taken by the tenant. This Court solely on the ground of misjoinder of parties and causes of action cannot interfere with the order of eviction if the Code of Civil Procedure is **RCR.337/2016** 10 ## applicable. Section 99 of the CPC reads thus: “No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court.” Misjoinder of parties and causes of action is a ground to interfere with a decree only if such misjoinder affects the merits of the case or the jurisdiction of the court. Misjoinder of parties and causes of action did not affect the merits of the case or the jurisdiction of the court in the present case. Section 99 of the CPC is a provision applicable to appeals. But the principle and object behind the Section applies to revisions also as the scope of interference in a revision is far less than in an appeal. The result is that no interference is possible and warranted if Section 99 of the CPC is applicable. The applicability of the CPC to the rent control proceedings is the next question to be considered. Does Section 23 **RCR.337/2016** 11 of the Act stand in the way of the applicability of the Code of Civil Procedure is the precise question. 15.Section 23(1) of the Act provides that subject to such conditions and limitations as may be prescribed, the accommodation controller, the rent control court and the appellate authority shall have the powers which are vested in a court under the Code of Civil Procedure when trying a suit in respect of certain matters. Those matters are enumerated in clauses (a) to (k), namely, (a) discovery and inspection; (b) enforcing the attendance of witnesses and requiring the deposits of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; (g) issuing commission for the examination of witnesses and for local inspection; (h) setting aside ex parte orders; (i) enlargement of time originally fixed or granted; (j) power to amend any defect or error in **RCR.337/2016** 12 orders or proceedings; and (k) power to review its own orders. This Court has held to the effect that notwithstanding Section 23 of the Act, the rent control court has certain other jurisdictions. It is held in **Mohan v. Jayaprakash (2013 (2) KLJ 528)** that the rent control court does have the jurisdiction of a civil court under Rule 10(2) of Order 1 of the CPC to add or strike out parties. The decision in **Krishna Iyer v. Abdul Rasheed (2015 (1) KHC 375)** holds that Section 23 does not stand in the way of two rent control petitions being tried jointly. There are decisions of this Court holding that the rent control court has the power to allow amendment of the petition and counterstatement. Thus, it is incorrect to think that the rent control courts have no powers of a civil court other than those mentioned in Section 23 of the Act. In fact, in the case on hand, even Section 23 is irrelevant. 16.What Section 23 is all about is as to the powers of the **RCR.337/2016** 13 accommodation controller, rent control court and the appellate authority. Those authorities shall have certain powers which are vested in a civil court under the Code of Civil Procedure in trying a suit. Section 99 of the CPC has nothing to do with the powers of a civil court. That is a provision which just instructs the court not to interfere with a decree on account of any misjoinder or non-joinder of parties or causes of action not affecting the merits of the case or the jurisdiction of the court. Section 23 of the Act does not, and cannot, bar or restrict the application of Section 99 of the CPC to rent control proceedings. Section 23 operates only in the field of the powers of the authorities under the Act. 17.The Act is silent about the joinder of parties and causes of action. The Act does not state the consequence of misjoinder of parties and causes of action. In such a situation, where the special statute is silent on such matters, the only other book you can open to find out a solution is the Code of Civil Procedure. We are of the **RCR.337/2016** 14 considered opinion that the provisions of Section 99 of the CPC do apply to rent control appeals and revisions. Section 23 of the Act does not, and cannot, stand in the way. In view of Section 99, and in the absence of any prejudice to the tenant on account of the misjoinder of parties and causes of action, there is no question of interference with the order of eviction passed by the Rent Control Court and confirmed by the Appellate Authority solely on account of the misjoinder. 18.Now on to the merits of the case. Concurrent findings are challenged. The jurisdiction under Section 20 of the Act is only to check the legality, regularity and propriety of the impugned judgment. The need alleged is to do business by the petitioners jointly. The business they propose to do is the manufacture and sale of furniture. For that, they say, they require the 'A' and 'B' schedule rooms and the vacant space of 825 square feet. Admittedly the 'A' and 'B' schedule rooms are adjacent **RCR.337/2016** 15 rooms on the ground floor of a three storied building. The vacant space of 825 square feet is also on the ground floor. The evidence to prove the need and the need to be bona fide was given by PW1. He is the 1[st] petitioner. His evidence was considered by the Rent Control Court and the Appellate Authority. - 19.The evidence of PW1 goes as under : Himself and his brother propose to do business in furniture. Their family runs a saw mill and does business in timber. The family members have decided to diversify the family businesses. As part of that decision the petitioners decided to start a furniture shop. For that purpose the 'A' and 'B' schedule rooms and the vacant space are required. - 20.The above evidence of PW1 could not be damaged in cross-examination. The ability and the financial capacity of the petitioners to start the proposed business are not **RCR.337/2016** 16 in dispute. The suitability of the 'A' and 'B' schedule rooms to house such a business is disputed. But no reason in support of the dispute is stated. The managing director of the respondent company gave evidence as RW1. He could not point out anything tangible to suspect the bona fides of the petitioners. Nonexamination of the 2[nd] petitioner was highlighted by the respondent. That aspect was also considered by the Court and the Authority below. The need alleged is the need of both the petitioners to do a business jointly. The need has been proved by PW1 to be bona fide. The 2[nd] petitioner has nothing to state more than what PW1 stated. Non-examination of the 2[nd] petitioner is therefore not fatal to the case of the petitioners. The need of the petitioners for own occupation has been proved to be bona fide as rightly concluded by the Rent Control Court and the Appellate Authority. 21.The tenant highlights the availability of a vacant space **RCR.337/2016** 17 of 825 square feet with the landlords to defeat the landlords under the first proviso to Section 11(3) of the Act. What the petitioners propose to do is not a small trade. As has been rightly stated by the Appellate Authority, the petitioners propose to start a business in a large scale utilizing not only that little space, but also the 'A' and 'B' schedule rooms. Indeed that is a special reason within the meaning of the first proviso. - 22.The tenant is a Private limited company. Therefore the second proviso to Section 11(3) does not afford protection to it. The decision in **AVM Ltd v. Dr.Sunil P. Shenoy (ILR 1995 (3) Kerala 444)** holds that a limited company is not entitled to the protection of the second proviso. - 23.The tenant has no go but to go out of the premises. The learned counsel for the tenant has requested us to grant sometime to vacate the premises. The request is **RCR.337/2016** 18 reasonable. The tenant may need a reasonable time to find out an alternative building to do its business. Therefore a reasonable time can be granted to the tenant to vacate the premises. We consider a period of five months to be reasonable. Such time is granted subject to the following conditions. An affidavit shall be filed by the managing director of the respondent company unconditionally undertaking to vacate both the premises within a period of five months from today. The affidavit shall be filed before the Rent Control Court within one month from today. The rent arrears, if any, shall be directly paid to the landlords or deposited in the Rent Control Court within one month from today. The rent in future shall be paid on or before the 10[th] day of every month. - 24.The revision fails. The same deserves dismissal. Dismissed. No costs. However, a period of five months from today is granted to the tenant to vacate the **RCR.337/2016** 19 premises. This benefit granted to the tenant will stand withdrawn without any further order if the tenant commits breach of any of the conditions imposed by us. Sd/- ## **K.T.SANKARAN Judge** **Sd/A.M.BABU Judge** Mrcs/5.12.2016 //True copy// P.S to Judge