PANDINHARE KUNNANCHERY ACHUTHAN v. MEKKONA UNNIKRISHNA KURUP

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934 RCRev..No. 541 of 2005 ( ) -------------------------RCA.14/2004 of ADDL.DISTRICT COURT, KOZHIKODE RCP.67/2002 of MUNSIFF COURT, QUILANDY REVISION PETITIONER/REV.PETITIONER/APPELLANT/RESPONDENT: ---------------------------------------------------------- PANDINHARE KUNNANCHERY ACHUTHAN, S/O.SANKARANKUTTY RESIDING AT THIRUVANGOOR AMSOM DESOM KOYILANDI TALUK. BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT/PETITIONER: ------------------------- MEKKONA UNNIKRISHNA KURUP, S/O.KUNHIRAMKURUP, POST THUVAKODE, CHEMANCHERI AMSOM THUVAKODE DESOM, KOILANDI TALUK. BY ADV. SRI.P.T.MOHANKUMAR BY ADV. SMT.ARLISS TRENCY ANTONY BY ADV. SMT.K.A.ANGEL TREENA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-02-2012, THE COURT ON 22-8-2012 PASSED THE FOLLOWING: ORDER ON I.A.3186 OF 2005 IN R.C.R NO: 541 OF 2005 DISMISSED 22-8-2012 JJ /TRUE COPY/ SD/- PIUS C.KURIAKOSE, JUDGE SD/- K.SURENDRA MOHAN, JUDGE P.S.TO JUDGE ## **PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ.** ## **-----------------------------------------------------R.C.R.NO: 541 OF 2005 -----------------------------------------------------Dated this the 22[nd] August, 2012.** ## **O R D E R** ## Surendra Mohan, J. This is a tenant's revision against concurrent orders of eviction granted by the Rent Control Court as well as the Appellate Authority. Eviction has been ordered under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the 'Act' for short). 2. The short facts of the case are summarized as follows. The revision petitioner-tenant had taken the petition schedule shop rooms on rent as per a registered kychit dated 5-2-1981. In the year 1997, the respondent-landlord had filed RCP 28/1997 before the Rent Control Court, Koyilandy, for eviction of the revision petitioner-tenant on the grounds under Section 11(2)(b) and 11(3) of the Act. Later on, a joint statement was filed between the parties on 9-3-1998 to the effect that the matter was settled between the parties and praying for a dismissal of the Rent Control Petition recording the joint statement. Accordingly, the joint statement was recorded and the Rent RCR 541/2005 2 Control Petition was dismissed by order dated 10-3-1998. As per the settlement, the revision petitioner had agreed to pay rent at the rate of `180/- per month from 10-3-1998 onwards. Though it is contended by the respondent-landlord that the tenant had also agreed to enhance the rent by 15%, the said statement is disputed by the tenant. According to the landlord, the rent was paid only up to October 2001. Thereafter, the rent is remaining in default. Therefore, the landlord demanded the defaulted rent and, by issuing a registered notice through his Lawyer demanded surrender of vacant possession of the building. Since the building was not surrendered the Rent Control Petition was filed. In the Rent Control Petition, the landlord also pleaded that he had no income other than the income derived from the petition schedule shop room. Therefore, he bonafide needed the building for starting a stationery business of his own. He had no other building of his own which is reasonably sufficient to satisfy his need. According to him, the tenant was not depending solely on the income derived from the business carried on in the petition schedule shop room for his livelihood. He has other RCR 541/2005 3 sources of income for his sustenance. Other buildings are also available in the locality for the tenant to shift his business. Therefore, he sought an order of eviction against the tenant. 3. The Rent Control Petition was contested by the revision petitioner-tenant. According to him, as per the joint statement dated 9-3-1998 in RCP 28/1997, the rent was increased to `180/per month. There was no agreement to give a 15% enhancement as alleged. He had paid rent up to October 2001. The rent for the subsequent period was paid during the pendency of the Rent Control Petition. For the above reason, it was contended that the landlord was not entitled to an order of eviction under Section 11(2)(b) of the Act. The revision petitioner also contested the genuineness of the need that was put forth by the landlord. According to the tenant, the landlord had earlier filed RCP 28/1997 on the very some ground. However, on the intervention of mediators, the same was compromised and a joint statement was also filed. It was pointed out by the tenant that no such need was mentioned in the Lawyer's notice that was issued prior to the filing of the present Rent Control Petition. RCR 541/2005 4 According to the tenant, he was depending mainly on the income derived from the business carried on in the petition schedule shop room for his livelihood. No other suitable building was also available in the locality to carry on his business. The tenant has a further case that he had issued a registered notice through his lawyer to the landlord on 6-8-2001 calling upon him to repair the tenanted shop room. When the landlord failed to conduct the repairs, the tenant had filed a petition before the Accommodation Controller. The present Rent Control Petition was filed immediately thereafter, as a counter blast. For the above reasons, the tenant contended that the Rent Control Petition was liable to be dismissed. The Rent Control Petition was tried on the above pleadings. 4. The evidence in the case consists of the oral testimonies P.Ws 1 and 2 and R.Ws 1 and 2. Exts.A1 to A5 documents were marked on the side of the landlord. 5. The Rent Control Court, on a consideration of the evidence on record as well as the rival contentions of the parties, found that the landlord was entitled to an order of eviction under RCR 541/2005 5 Section 11(2)(b) as well as 11(3) of the Act. Therefore, the Rent Control Petition was allowed. Though the tenant challenged the order of eviction passed against him in RCA 14/2004 before the Rent Control Appellate Authority, Kozhikode, on a reappraisal of the evidence on record and on a consideration of the contentions of both the landlord and the tenant, the Appellate Authority found that the order of eviction granted by the Rent Control Court was fully justified. Therefore, the appeal was dismissed with costs. This revision is filed by the tenant against the said judgment. 6. We have heard Adv.P.A.Harish who appears for the revision petitioner and Adv.P.K.Mohan Kumar who appears for the landlord at length. We have been taken through the records of the case. We have perused the records of the case and considered the contentions of the rival parties advanced before us, anxiously. 7. According to the counsel for the revision petitioner, the present Rent Control Petition filed by the landlord is barred in view of Section 15 of the Act. It is also contended that the need RCR 541/2005 6 put forth by the landlord did not find a place in the initial notice issued through the landlord's lawyer and therefore, the need cannot be considered to be genuine or bonafide. It is also contended that the revision petitioner ought to have been given the benefit of the second proviso to Section 11(3) of the Act. The authorities below have erred in not giving the benefit of the said provision to the tenant. For the above reasons, he prays for setting aside the orders of eviction passed by the authorities below. 8. The respondent-landlord had sought eviction of the tenant both on the grounds of arrears of rent as well as bonafide need of the building for his own occupation. Both the authorities below have found against the tenant on both the grounds. It has been held by both the authorities below that the rent in respect of the building is in arrears and have therefore ordered eviction under Section 11(2)(b) of the Act. No serious attack was made by the counsel for the revision petitioner against the findings of the authorities below under Section 11(2)(b) of the Act. We also do not find any infirmity in the said findings, justifying an RCR 541/2005 7 interference with the same in exercise of our powers of revision. Therefore we confirm the order of eviction under Section 11(2) (b) of the Act. 9. According to Adv.P.A.Harish who appears for the revision petitioner, the order of eviction granted under Section 11(3) of the Act is absolutely without any justification and has been granted, without taking note of many material aspects of the case. In the first place, it is contended by the counsel that the Rent Control Petition, RCP 67/2002 filed by the landlord itself was not maintainable in view of the bar under Section 15 of the Act. It is contended that the earlier RCP 28/97 filed by the landlord had been compromised by enhancing the rent in respect of the tenanted premises from `90/- to `180/- per month with effect from 1-4-1998. Therefore, it is contended that there was a final determination of the rights of the parties in the order of the Rent Control Court thereby attracting Section 15 of the Act. It is also pointed out that the earlier Rent Control Petition had also been filed putting forward the present need, viz., to start a stationery business. For the above reason, it is contended that RCR 541/2005 8 the present Rent Control Petition should have been summarily rejected. 10. Adv.P.K.Mohan Kumar who appears for the respondent-landlord on the other hand contends that the earlier Rent Control Petition had been compromised and therefore, there was no determination of any of the issues by the Rent Control Court. It is contended that as per Ext.A1 order, there has been no finding by the Rent Control Court on the merits. It is also contended that the tenant had no contention on the basis of Section 15 of the Act either before the Rent Control Court or the Appellate Authority. The contention of the tenant before the authorities below was only that the need projected in the earlier Rent Control Petition as well as in the present petition being one and the same, there was no bonafides in the said need. For the above reason, it is contended that it is not open to the tenant to raise a new contention on the basis of Section 15 of the Act, for the first time in revision. The counsel also relies on the decision reported in **Mavelikara Ex-Servicemen's Co-Op.Society v. Rajamma (1986 KLT 513)** and **Vasu v.Varghese {2007(4)** RCR 541/2005 9 **KLT 1013}** to contend that the plea of the tenant is not sustainable even on the merits. On the question of bonafides of the landlord's need, the tenant has a further contention that the need had not been mentioned in the Lawyer's Notice that was issued and that the same was put forward only in the Rent Control Petition for the first time. Tenant has also claimed protection of the second proviso to Section 11(3) of the Act. 11. We shall first consider the question as to whether the Rent Control Petition of the landlord is barred in view of Section 15 of the Act. Section 15 of the Act reads as follows:- ## “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 raises 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 RCR 541/2005 10 Act or the corresponding provisions of any law repealed or superseded by such law.” It is clear from a reading of the above provision that the ingredients necessary to be satisfied for attracting the above provision are:- i) It should be an application under sub-section (2), (3), (4), (5), (7) or (8) of Section 11; ii) It should be between the same parties or between parties under whom they or any of them claim; iii) It should raise substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this Act. The words 'finally decided or purports to have been finally decided' in a former proceeding under this Act clearly indicate that a final decision in respect of the issues between the parties should have resulted in a previous proceeding. In the present case, the earlier Rent Control Petition RCP 28/1997 was compromised between the parties and the Rent Control Petition was dismissed recording the joint statement. The above is clear RCR 541/2005 11 from Ext.A1, certified copy of the joint petition as well as the order passed thereon. Ext.A1 does not contain any decision of the Rent Control Court. It is true that the rent in respect of the tenanted premises has been enhanced. But, the said enhancement was made by agreement of parties and not by a decision of the court. For the above reason, Ext.A1 does not contain any final decision of the Rent Control Court. Therefore, the crucial ingredient that is necessary to attract Section 15 of the Act is significantly absent in the present case. 12. The ancillary question is whether the words 'purports to have been finally decided' would include a situation where a compromise is recorded by the court and an order passed in terms thereof. The scope and meaning of the expression 'purports to have been finally decided' was considered by a Division Bench of this Court in **Vasu v. Varghese {2007(4) KLT 1013).** After referring to the dictionary meaning of the word 'purport', the Bench has held in paragraph 9 of the said decision as follows:- RCR 541/2005 12 “The meaning of the word 'purport' in The American Heritage Dictionary of the English Language, is given as follows: 1. To contain the claim or profession (to be or do something), 2. Rare. To have or give the appearance, often falsey, of being, professing, or intending - See synonyms at mean.---n(purport - port) The apparent meaning or purpose; import; significance. See Synonyms at meaning. It indicates that the decision should convey a meaning, substance, gist etc. When it is thus construed, the meaning of the term “purports to have been finally decided” indicates that the decision in a former proceeding should reflect a final decision on the issues raised and not a dismissal on technical grounds like “not pressed”, etc. As the word 'purports' also indicates a proper decision as having been arrived at by the court, the contention that it would take dismissals like the one in question, cannot be accepted. S.15 clearly bars reopening of decisions which have become final and if a petition is dismissed as not pressed, it cannot be taken that there was a final decision on the issues arising in the matter, as the court had no occasion to go into the contentions RCR 541/2005 13 of the parties and render a decision on such issues.” 13. The dismissal of a case by recording the terms of a compromise, as done by the Rent Control Court in Ext.A2 is similar to a dismissal as “not pressed” for the reason that there is no final decision by the court on the issues that arise for determination. When a compromise is entered into by the parties, there is no determination of any of the issues on the merits. In fact, the parties by entering into a compromise are actually avoiding a decision on the points at issue by a court. The bar enacted by Section 15 is confined to reopening of decisions which have become final. Since there is no decision that has become final in a compromise that is entered into between the parties, the bar under Section 15 is not attracted. For the above reason, it has to be held that the contention of the revision petitioner on the basis of Section 15 has to fail. 14. It is well settled that the question of bonafide need is not a question of law but one of fact. Both the authorities below have concurrently found that the need put forth by the landlord RCR 541/2005 14 is bonafide. Though the counsel for the revision petitioner has been at pains to attack the findings of the authorities below as unsustainable, we are not satisfied that the said findings require any interference as sought for. 15. The counsel for the revision petitioner-tenant has a further contention that the tenant should have been granted the protection of the second proviso to Section 11(3) of the Act. In view of the decision of the Full Bench in **Francis v. Sreedevi Varassiar {2003(2) KLT 230(FB)** , the burden is heavy upon the tenant to establish both the limbs of the proviso before he can claim protection thereof. In the present case, as rightly found by both the authorities below, the tenant has failed in discharging his burden. The tenant has not produced the accounts in respect of his business to prove that he was mainly depending upon the income derived from the business conducted in the tenanted premises for his livelihood. He has also not adduced any positive evidence of the non-availability of other suitable buildings in the locality. The Appellate Authority has considered the various aspects of the case in the proper RCR 541/2005 15 perspective. We are not satisfied that the said findings require any interference. For the above reasons the rent control revision fails and is accordingly dismissed. Sd/PIUS C. KURIAKOSE Judge Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge RCR 541/2005 16