R.C.R. No.193 of 2009 (Revision under Section 20 of The Kerala Rent Control Act, 1965) Josephine v. Hridayaraj and Michel

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **&** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932** **RCRev..No. 193 of 2009()** **---------------------------------** **RCA.26/2008 of RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.72/2006 of MUNSIFF (ADDITIONAL) (RENT CONTROL COURT), PALAKKAD** **....................** ## **REVISION PETITIONER/RESPONDENT/PETITIONER :-** **-----------------------------------------------------------------------------** **JOSEPHINE ,W/O.SUNDARAJ, AGED 55 YEARS 18/316,CHETTI STREET, SULTANPET, PALAKKAD.** **BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA** ## **RESPONDENT(S)/APPELLANT/RESPONDENTS :-** **------------------------------------------------------------------** **1. HRIDAYARAJ, S/O.LATE AROGYASAMI,AGED 55 YEARS, 15/25 RC CHURCH ROAD, COURT ROAD, PALAKKAD.** **2. MICHEL, S/O.LATE AROGYASAMI,AGED 50 YEARS** - **15/25 RC CHURCH ROAD, COURT ROAD, PALAKKAD.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** **RCRev..No. 193 of 2009** ## **ORDER IN I.A.No.2590/2009 IN R.C.R.No.193/2009** Dismissed. **SD/- PIUS C. KURIAKOSE, JUDGE.** **SD/- N.K.BALAKRISHNAN, JUDGE.** 1.3.2011. //True Copy// P.A. to Judge ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------R.C.R. No.193 of 2009** **-----------------------------Dated this the 1[st] day of March 2011** ## **O R D E R** ## Pius C. Kuriakose, J. Under challenge in this revision under Section 20 of Act 2 of 1965 by the landlady is the judgment of the learned Appellate Authority setting aside the order of the learned Rent Control Court on I.A.No.1120/2008 and remanding that I.A. to the Rent Control Court for considering whether the denial made by the tenants to the landlady's title is bonafide or not. 2. The original tenant of the building was one Arogyasami. When he was sought to be evicted by the landlady on various grounds, he raised the contention that the landlady has not obtained title over the building under Ext.A1 document of title in favour of the landlady. He, on R.C.R. No.193 of 2009 -: 2 :- the contrary contended that title to the building stands vested with him. The issue was considered by this Court ultimately in C.M.A.No.251/1994. This Court ultimately upheld the finding that the landlady has obtained proprietory title to the building under Ext.A1. However, eviction order which had been given to the landlady was set aside for the reason that tenant Sri.Arogyasami was entitled to the benefit of Section 11(17) and the landlady was unsuccessful in showing that there was dire need as contemplated by Section 11(17). The C.M.A was allowed and judgment and decree of the District Court, Palakkad in A.S.No.81/1990 which had been impugned in the C.M.A was set aside. As matters went on like that, Sri.Arogyasami, the original tenant passed away. Upon the demise of Sri.Arogyasami, the landlady initiated fresh rent control petition (RCP No.72/2006) for evicting the present tenants who are the legal heirs of Sri.Arogyasami. In that RCP, the present tenants filed counter contending that they are ## R.C.R. No.193 of 2009 -: 3 :- denying the title of the landlady. Apart from, that they filed I.A. for raising the question of title as a preliminary issue and for taking decision on that issue even before merits of the eviction grounds were examined. The Rent Control Court dismissed the I.A. taking the view that the question of title had attained finality at the hands of even this Court in C.M.A and hence it is not open to the present tenants to take up the issue once again. According to the learned Rent Control Court, the judgment of this Court in C.M.A. would operate as res judicata against the question of title presently raised by the tenants. The Court further found that there was absolutely no bonafides in the application and the application was filed with the sole objective of dragging the litigation on to the maximum extent. In that view of the matter, the I.A. was dismissed. The learned Appellate Authority under the impugned judgment has taken the view that in a situation where the title of the landlady is denied by a tenant who is sought to be evicted, R.C.R. No.193 of 2009 -: 4 :- the learned Rent Control Court is obliged to enter a finding as to whether the denial by the tenant of the landlady's title is bonafide. What has been concluded is only the finding that the landlady has title. No finding whatsoever is entered at any stage that the denial of the landlady's title is not bonafide. It is for entering such a finding that the learned Appellate Authority has under the impugned judgment remanded the I.A. back to the Rent Control Court. 3. Even though the respondents/tenants were served with notice they have not chosen to enter appearance before this Court. It is trite by the judgment of the Full Bench of this Court in **Narayanan** v. **Shalima** [2003 (2) KLT 317 (F.B.)] that the protection under Section 11(17) will be available only to the tenant who was inducted into the building prior to 1.4.1940. The same being a personal right will not be available to others, who are tenants in the capacity as legal heirs of deceased tenant. If that be the matter, it is clear that the respondents will not be entitled R.C.R. No.193 of 2009 -: 5 :- for the protection of Section 11(17). 4. The question which arises now is only whether the denial made by the respondents of the revision petitioner's title is bonafide. On a reading of the counter filed by the respondents it is seen that it is the revision petitioner's proprietory title over the building that they have denied. As already stated by judgment of this Court in C.M.A. it has been concluded that Ext.A1 document is a valid document which has conferred upon the revision petitioner absolute title. As the denial now raised is only regarding such title, the chances of the above denial being upheld by a competent civil court, in case the parties are referred to civil court in terms of Section 11(1) are remote. In this context, we notice the judgment of this Court in **Aboobacker** v. **Girija** [1995 (1) KLT 553] wherein it has been held that in order that a plea of denial of title raised by a tenant is upheld and it is found that the jurisdiction of the Rent Control Court is ousted, the Rent Control Court should R.C.R. No.193 of 2009 -: 6 :- have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of denial and the chances of the plea being upheld by the civil court should be fairly on the higher side. We are sure that if the judgment of this Court in C.M.A. which is one of the materials before the Rent Control Court is examined by a civil court the chances of the plea of denial of title now raised by the tenants being upheld are practically nil. 5. The learned Appellate Authority also under the impugned judgment has indicated that the Rent Control Court itself may have to proceed with the case once it was found that the denial is without bonafides. It is on a purely technical reason that no specific finding regarding the bonafides of the denial has been entered in the earlier proceedings that the learned Appellate Authority has now directed the Rent Control Court to enter such a specific finding. We feel that the learned Appellate Authority should R.C.R. No.193 of 2009 -: 7 :- not have been this technical while taking a decision in a proceeding under the Rent Control Act, as it was governed by principles of equity, justice and good conscience. [See Rule 11 Sub-rule (8) of The Kerala (Buildings Lease and Rent Control) Rules]. It is very clear to our mind that the respondents have no chance of success for their plea that the revision petitioner has no title over the building. Sustaining the impugned judgment will only enable the respondents to avoid enquiry into the merits of the eviction grounds for some more time. Under the statutory scheme (See Section 24), rent control proceedings are expected to be disposed of within a period of four months of their commencement. We feel that it is high time that the RCP is enquired into on merits and a decision is taken regarding the existence or otherwise of the eviction grounds invoked by the landlady. In that view of the matter, we set aside the impugned judgment of the learned Appellate Authority and R.C.R. No.193 of 2009 -: 8 :- hold that the denial made by the respondents of the title of the landlady is not bonafide. In that view, we direct the Rent Control Court to expedite matters in the RCP and to ensure that the RCP is enquired into and a decision regarding the existence or otherwise of the eviction grounds is taken earlier. The Rent Control Court will ensure that the RCP is disposed of on merit at the earliest, at any rate, within two months of the court reopening after mid summer holidays. RCR is allowed. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt