Paul S/o Thelekadanan Paily & Thressia v Nixon S/o Chirakkekkaran Antony & Chakkalakkal Lazar Baby

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 RCRev..No. 6 of 2007() ---------------------RCA.44/2006 of RENT CONTROL APPELLATE AUTHROITY, THRISSUR RCP.4/2003 of RENT CONTROL COURT, THRISSUR .................... REVISION PETITIONER/APPELLANT/RESPONDENTS 2 & 3 . -------------------------------------------------------------- 1. PAUL,S/O.THELEKKADAN PAILY, KALATHODU DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. 2. THRESSIA, W/O.PAUL, KALATHODU DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S)/RESPONDENT/ PETITIONER. & 1ST RESPONDENT I RCP -------------------------- 1. NIXON, S/O.CHIRAKKEKKARAN ANTONY, NELLANKARA DESOM, CHEMBOOKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. CHAKKALAKKAL LAZAR BABY, HOUSE NO. 15/739, SOUHRADA NAGAR, P.O.NELLIKKUNNU, THRISSUR 5. ADV. SRI.P.VIJAYA BHANU FOR R1 - SRI.M.GEORGE THOMAS FOR R1 - SRI.K.P.SURESH KUMAR FOR R2 SMT.DEEPA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.78/2007 IN R.C.R. NO.6/2007 ## DISMISSED 20/5/2010 SD/- PIUS C.KURIAKOSE, JUDGE, SD/- C.K.ABDUL REHIM, JUDGE. ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R.No.6 OF 2007 ------------------------** Dated this the 20[th] day of May, 2010 ## **O R D E R** Pius C.Kuriakose, J. Respondents 2 and 3 in the Rent Control Petition, who are arrayed as relatives of the first respondent, the alleged tenant, are in revision. In response to the notice issued by the Rent Control Court, the first respondent contended that the landlord/petitioner does not have title over the building and that Ext.A7 document relied on by the landlord for title was executed for the purpose of securing a loan which the second respondent had availed from the petitioner/landlord. He contended that he is not in possession of the building and that it is his parents in law, the present revision petitioners, who are all along in possession. It was invoking the grounds of arrears of rent and bona fide need for own occupation that the landlord filed the Rent Control Petition. The first respondent denied the existence of those grounds. The present revision petitioners also adopted practically the same contentions. According to them, Ext.A7 deed was executed not as a deed of sale but instead as security RCA.No.6/2007 2 for the real transaction which was one of mortgage. Before the Rent Control Court, the evidence consisted of Exts. A1 to A16, B1 to B6 , Ext.X2 & X2 and oral evidence of PWs 1 to 6 & RWs 1 to 3. Ext.A1 was the rent chit purportedly executed by the first respondent in the Rent Control Petition in favour of the landlord. Ext.A7, as already indicated, was the document on the basis of which the landlord claimed title over the property. One of the points formulated by the Rent Control Court was whether the denial of the landlord's title by the first respondent tenant is bona fide. The Rent Control Court on appreciating the evidence, which came on record, came to the conclusion that the respondents in the RCP were unsuccessful in proving that Ext.A7 was not a genuine document of sale, but was only a security document. It was noticed in that context that the contention was that Ext.A7 was vitiated by fraud and misrepresentation and that the respondents had not yet obtained any decree from a competent civil court canceling Ext.A7 on the above reason. Accordingly, it was found that the contention of denial of title is without bona fides. Practically on the basis of that finding it was found that the bona fides of the need is established by the oral evidence RCA.No.6/2007 3 adduced in the case and also that the rent was in arrears as alleged i.e. at the rate of Rs.3,000/- per month from 1/6/2002. 2. The alleged tenant did not prefer any appeal against the order of the Rent Control Court. Respondents 2 and 3, the present revision petitioners alone, preferred the appeal. In the appeal grounds were raised challenging the correctness of the finding of the Rent control Court regarding the existence of landlord-tenant relationship between the landlord and the first respondent in the Rent Control Petition and also the finding that Ext.A7 document is a valid document of sale . It was also urged in the appeal that the court below ought to have accepted the contention of all the three respondents in the Rent Control Petition that on the basis of Ext.A7, possession was never handed over to the landlord. The learned Appellate Authority did not go into the merits of the various grounds raised in the RCA. That Authority referred to the judgment of this Court in Varghese Ittoop v. M.Ibrahim and others (1991(2) KLJ 444) and also the judgment of the Supreme Court in Arjun Khiamal Makhijani v. Jamnadas Tuliani and others (AIR 1989 SC 1599) and held that the appeal preferred by the persons who are not tenants and are RCA.No.6/2007 4 only persons placed in occupation by the tenant is not maintainable. Accordingly, the appeal was rejected as maintainable. 3. In this revision under Section 20, various grounds have been raised by the petitioners challenging the judgment of the appellate authority and we have heard the submissions of Sri. T.K.Chinnan, learned counsel for the revision petitioners and also those of Smt.Deepa, learned counsel for the respondents. 4. Sri.T.K.Chinnan submitted that it is not even alleged that the revision petitioners are sub tenants. He referred to the statutory definition of the term ”tenant” contained in the Rent Control Act and submitted that unless there is an allegation that possession of the building has been handed over unauthorisedly by the tenant to the revision petitioner or that the tenant has unauthorisedly sub let the building to the revision petitioner, the jural status of the revision petitioner in the building will not become that of a sub tenant. He also pointed out that the ground under clause (i) of sub section (4) of Section 11 was not one of the grounds invoked. According to the learned counsel, even if the allegations in the Rent Control Petition are taken to be RCA.No.6/2007 5 correct, then also the remedy for evicting the revision petitioners is not a petition under the Rent Control Act, instead is a regular suit. The question of maintainability of a petition to evict the present revision petitioners has not been looked into even, by the Appellate Authority or for that matter by the Rent Control Court. 5. Smt.Deepa per contra, relying on the two decisions relied on by the learned Appellate Authority, submitted that the revision petitioners were impleaded as relatives of the tenant occupying the building along with the tenant only for the purpose of avoiding unnecessary obstructions at the time of execution. Their status can only be that of licensees under the tenant, who are liable to vacate once the tenant is evicted. In reply, Mr.Chinnan submitted that the suit filed by the revision petitioners for cancelation of Ext.A7 has not been finally disposed of. 6. We have very anxiously considered the rival submissions addressed at the Bar. We are in agreement with the learned counsel for the respondents when she submits that for evicting persons, who are in occupation of the building along with the tenant as members of the tenant's family or as licensees under RCA.No.6/2007 6 the tenant, a separate petition for eviction is not necessary. We notice that in this particular case, the revision petitioners as well as the first respondent in the Rent Control Petition had raised a specific contention that Ext.A1 rent chit had never taken effect since the possession of the building in question was never obtained by the respondent/landlord on the strength of Ext.A7. Of course, this contention was decided against the revision petitioners and in favour of the landlord by the Rent Control Court on the basis of evidence. In the appeal preferred by the revision petitioners, the correctness of that decision was under challenge. We are of the view that, being the statutory Appellate Authority under Section 18, the learned Appellate Authority was expected to examine the correctness of the finding as to whether Ext.A1 had become effective by possession being handed over by the landlord to the first respondent in the Rent Control Petition. The decisions relied on by the learned Appellate Authority are essentially based on Section 21 of Act 2 of 1965 which provides that any order passed by the court under the Act will be binding on the sub tenant and also on clause (6) of Section 2 which provides that person placed in occupation by tenant will not RCA.No.6/2007 7 acquire the status of tenant. We feel that in this particular case, where specific order of eviction was sought by the landlord against the revision petitioners and where it has become evident that the first respondent the alleged tenant is not in possession of the building presently, it was obligatory that the Appellate Authority examined the correctness of the finding as to whether possession of the building had been given on the basis of Ext.A1 to the first respondent in the RCP. For the above reason, we are inclined to interfere with the the judgment of the Appellate Authority. At the same time, Sri.Chinnan himself conceded before us that the monthly rent of Rs.3,000/- allegedly payable by the first respondent in respect of the building, which is situated in an important area of the Thrissur Municipal Corporation cannot be said to be exorbitant. Obviously from 1/6/2002 till date the revision petitioners have been occupying the building without paying any rent or damages for use and occupation. Therefore, we are of the view that relief need be given to the revision petitioners only upon condition that they deposit a total amount of Rs.2,88,000/- before the Rent Control Appellate Authority without prejudice to their contentions in the RCA.No.6/2007 8 case. 7. The result of the above discussion is, therefore, as follows; 8. The judgment of the Appellate Authority is set aside and the Rent Control Appeal is remanded to the Rent Control Appellate Authority, Thrissur for consideration of the appeal on merits subject to the following conditions; i). The revision petitioners shall deposit a sum of Rs.2,88,000/- before the Rent Control Appellate Authority on or before 15/7/2010. Deposit as above will be without prejudice to the revision petitioners' contentions in the Rent Control Petition. ii). This judgment will become operative only upon the learned Appellate Authority noticing payment of the above amount on time. Once the judgment becomes operative, the learned Appellate Authority will post the Rent Control Appeal for hearing, hear both sides on the merits of the RCA including the merits of the contention RCA.No.6/2007 9 that possession was never given to the first respondent on the strength of Ext.A1. iii). We also direct the Appellate Authority to explore the possibility of settlement of the issue between the parties by summoning both the parties to the court. iv) Once it is seen that the judgment has become operative and it is revealed that there is no possibility of the issue being settled between the parties, the learned Appellate Authority will expedite matters and ensure that the RCA is disposed of finally at the earliest. ## **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** dpk