RCR Nos.300 & 303/09

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 RCRev..No. 300 of 2009() -----------------------RCA.7/2005 of ADDL.DISTRICT COURT, KOZHIKODE RCP.113/1997 of ADDL.M.C.,KOZHIKODE-I .................... ## REVISION PETITONERS/APPELLANTS/RESPONDENTS 2 TO 5 -------------------------------------------------------------------- 1. R. KRISHNA KUMAR, S/O. RJAGOPALA PRABHU DOING BUSINESS IN PORTION OF SHOP ROOM NO.13/30, KAMMATHILINE, VATTAKULAM PARAMBIL, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. K.BALU, FATHERS NAME NOT KNOWN DOING BUSINESS IN PORTION OF SHOP ROOM. NO.13/30 MAMMATHILINE, VATTAKULAM PARAMBIL, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 3. ANAKANDI YUSUF, S/O. AHAMMAD KOYA, DOING BUSINESS IN PORTION OF SHOP ROOM NO.13/30 KAMMATHILINE, VATTAKULAM PARAMBIL, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 4. A.ABU, S/O. IMBICHI MOIDEEN HAJI, DOING BUSINESS IN PORTION OF SHOP ROOM NO.13/30 KAMMATHILINE, VATTAKULAM PARMBIL NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.RAMADAS ## RESPONDENTS/RESPONDENTS/PETITIONER & 1ST RESPONDENT ------------------------------------------- 1. KARYATT KUNHAMAD HAJI, S/O. ABDULLKUTTY AYANCHERI AMSOM DESOM, VATAKARA TALUK. 2. CHIRAKKAL ABDUL AZEEZ, RUNNING PULARI SWEET AND BAKERY PALAYAM ROAD, RESIDING AT PANIYANKARA AMSOM DESOM, KOZHIKODE TALUK. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/09/2010 ALONG WITH RCR NO. 303 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR NO.300/09 ## APPENDIX ORDER ON IA NO.3590/09 IN RCR NO.300/09 DISMISSED 6.9.2010 SD/- PIUS C.KURIAKOSE, JUDGE SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ PA TO JUDGE ## **PIUS C.KURIAKOSE & P.S.GOPINATHAN** , **JJ. --------------------------R.C.R Nos. 300 & 303 OF 2009 -------------------------Dated this the 6[th] day of September, 2010** ## **O R D E R** ## _Pius C.Kuriakose, J._ Under challenge in this RCP is the judgment of the Rent Control Appellate Authority, Kozhikode, remanding the RCP to the Rent Control Court for considering the merits of various eviction grounds invoked by the first respondent landlord. RCR No.303 of 2009 is filed by the first respondent in the RCP, who according to the landlord is his tenant. RCR No.300 of 2009 is filed by the other respondents in the RCP who are the alleged sub lessees. It was on the basis of Ext.A3 lease deed that the landlord contended that the first respondent in the RCP is his tenant. The landlord also relied on Ext.A5 lease deed which was executed by the father of the fist respondent in his favour. The Rent Control Appellate Authority formulated preliminary point as required by the proviso to sub section 1 of Section 11 as to whether the denial of title which was made by all the respondents in the RCP is bonafide. Parties were permitted to 2 RCR Nos.300 & 303/09 adduce evidence also in support of their rival position on the above point. On the side of the landlord, Exts.A1 to A33 documents were marked and witness PW1 was examined. On the side of the respondents in the RCP, Exts. B1 to B4 were marked and witnesses DWs 1 and 2 were examined. Commissioners report and sketch were marked as Ext. C1 and C1(a). The Rent Control Court on anxiously appreciating the various items of evidence, came to the conclusion that the denial of the landlord's title made by the respondents in the RCP is not bonafide. As though in consequence of the above finding, without adjudicating the existence or otherwise of eviction grounds invloked, the court held that RCP is liable to be allowed on all the grounds invoked. The Rent Control Appellate Authority in the impugned judgment would concur with the eviction of the Rent Control Court regarding its finding as to whether the denial of the landlord's title by respondents in the RCP is bonafide. But the appellate authority also found that the Rent Control Court was bound to examine the merits of the 3 RCR Nos.300 & 303/09 eviction grounds after permitting the parties to adduce evidence concerning the merits of the grounds and objections. It is on that view of the matter, RCP was remanded. Many grounds have been raised in these RCRs assailing the judgment of the appellate court confirming the decision of the Rent Control Court that the denial of the title is not bonafide. 2. Sri.M.Gopikrishnan Nambiar, the learned counsel appearing for the petitioner and Sri.R.Ramdas, the learned counsel appearing for respondents 2 to 5 argued before us on the basis of the grounds. Their submissions were resisted by Sri. K.B.Sivaramakrishnan, the learned counsel appearing for the first respondent. 3. We have considered the rival submissions addressed at the Bar. We have made a quick reappraisal of the evidence. The question is whether the finding concurrently entered by the statutory authorities that the denial of the landlord's title by the respondents is bonafide. Judgment of the Division Bench of this Court in **Aboobacker v. Girija** (1995 (1) KLT 553) is a leading RCR Nos.300 & 303/09 4 light on the issue. It has been held by the Division Bench in the above case that when it is contended that the jurisdiction of the Rent Control Court is ousted as the landlord has no title to maintain the RCP, the court should have satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea and the chances of the plea being upheld by the Civil Court must be fairly on the higher side. 4. It was on an appreciation of the materials which was produced by the parties who were given all opportunities to adduce materials that the statutory authorities came to the conclusion that the denial of the title relied on by the landlord in these cases for maintaining RCP is not bonafide. We find that the materials produced on the side of the landlord included Ext.A3 lease deed directly executed by the first respondent in favour of the landlord, Ext.A5 lease deed executed by the first respondent's father in favour of the landlord, Exts.A2 to A10 which were the counter foils of the rent receipts book pertaining to various rooms in the larger building (including the petition RCR Nos.300 & 303/09 5 schedule room) and Exts.A29 and A30 certified copies of the property tax assessment register pertaining to the building in question. Significantly while contending that the petitioner in the RCP has no title, the endeavour of the respondents in the RCP was to show that the paramount title over the building stands vested in somebody other than the petitioner. Exts.A29 and A30 are documents as contemplated by Section 26 of Act 2 of 1965. These documents will show that as per the assessment books of the local authority, the Kozhikode Corporation, the petitioner is the owner. According to us, Exts.A29 and A30 when considered together with the various items referred to by us, will probabilise the version of the landlord that it was the landlord who let out the building to the first respondent under Ext.A3. In other words, the materials placed on record by the parties will not show that the respondents in the RCP do not have a fair chance of success if the issue is referred to the civil court. Applying the principles laid down in **Aboobacker v. Girija** (supra) we are of the view that the judgment of the appellate RCR Nos.300 & 303/09 6 authority cannot be faulted. Both the revisions are dismissed without any orders as to cost. Since the RCP is filed way back in 13 years ago, the learned Rent Control Court shall expedite the matters and the enquiry will be completed and orders will be passed in the RCP within three months on receiving a copy of this order. **PIUS C.KURIAKOSE, (JUDGE)** **P.S.GOPINATHAN, (JUDGE)** vps RCR Nos.300 & 303/09 7 RCR Nos.300 & 303/09 8