R.C.(Rev).No. 17 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ``` RCREV. NO. 17 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 08.12.2023 IN RCA NO.154 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, THALASSERY ARISING OUT OF THE ORDER DATED RCP NO.127 OF 2020 OF PRINCIPAL MUNSIFF COURT, KANNUR ``` ## **`REVISION PETITIONER/APPELLANT/PETITIONER/2[ND] RESPONDENT:`** ``` R.K.CHANDRASEKHAR AGED 60 YEARS S/O KRISHNAN SWAMI CHETTIYAR, C.W 1964, RK CHETTIYAR & SON, M.A. ROAD, KANNUR., PIN – 670001 ``` ``` BY ADVS. K.A.MANZOOR ALI JACOB GEORGE (PARAVUR) ``` ## **`RESPONDENTS/RESPONDENTS/RESPONDENTS/PETITIONER AND 1[ST] RESPONDENT:`** ``` 1VELIKKALATH MUHAMMED FAIZOOK AGED 45 YEARS S/O VELIKKALATH JMEELA, RESIDING AT HARIYALS, CIVIL STATION, POST KANNUR., PIN – 670002 ``` ``` 2R.K.GANESHAN AGED 62 YEARS S/O KRISHNA SWAMI CHETTIYAR, C.W. 1964, R.K CHETTIYAR & SON, M.A ROAD, KANNUR., PIN - 670001 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev).No. 17 of 2024 **CR** ## **O R D E R** ## G. Girish, J. The tenant in R.C.P.No.127 of 2020 of the Rent Control Court, Kannur is the revision petitioner. In the above petition instituted by the respondents-landlords for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), the tenant denied the title of the landlords, and filed I.A.No.3 of 2023 for hearing the issue of denial of title before proceeding further. The Rent Control Court, after hearing both sides, passed an order, dismissing the above I.A. on 07.10.2023 with the observation that there is no need to hear the denial of title as the preliminary issue, and that the question of maintainability can be considered at the time of full-fledged trial. In fact, in the above order, the Rent Control Court had articulated various aspects relating to the concept of title of the landlord in rent control proceedings and tacitly observed in favour of the title of the respondents-landlords. The petitioner-tenant took up the matter in appeal before the Rent Control Appellate Authority (Additional District Judge-III), Thalassery. The Rent Control Appellate Authority, Thalassery dismissed the above appeal numbered as R.C.A.No.154 of 2023 in limine on 08.12.2023, with the observation that the order of the Rent Control Court reflected that the issue of title agitated by the 3 R.C.(Rev).No. 17 of 2024 tenant had been determined after referring to the documents marked in the case and the decisions of the higher courts, notwithstanding the remark that there was no need to decide the issue of title as a preliminary issue. The disposal of the appeal by the Appellate Authority was without expressing any opinion as to whether the denial of title of the landlord, agitated by the tenants, was bona fide. Aggrieved by the above dismissal of R.C.A.No.154 of 2023 by the Appellate Authority, the petitioner is here before this Court with this revision filed under Section 20 of the Act. 2. Though notice of this revision was issued through speed post in the correct address of the respondents, it was not returned after service even after 30 days from the date of issuance. At last, as per order dated 06.03.2024 in I.A.No.3 of 2024 filed by the petitioner under Rule 51(2) of the Rules of High Court of Kerala, 1971, service of notice upon the respondents was declared as complete. 3. Heard the learned counsel for the revision petitioner. 4. The second proviso to Section 11(1) of the Act reads as follows : “Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall 4 R.C.(Rev).No. 17 of 2024 be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.” 5. It is well-settled that in a rent control proceedings, if the tenant denies the title of the landlord, the challenge relating to such denial of title has to be adjudicated before proceeding further, and there should be a finding as to whether such denial of title of the landlord, or the claim for permanent tenancy by the tenant, is bona fide or not. The issue regarding denial of title of the landlord or the claim for permanent tenancy by the tenant cannot be relegated to the trial stage since it would result in inordinate delay in the disposal of the case. A tenant who wants to protract the rent control proceedings and delay eviction may raise a false contention that the landlord has no title. Likewise, the proceedings get abruptly protracted if a person falsely claims that he is the landlord and files a rent control petition against the person in possession of the building under the real title holder. In all such circumstances, a decision as to whether the denial of title of the landlord is bona fide or not, has to be taken by the Rent Control Court at the earliest opportunity when it comes up, and it cannot be deferred to a later stage of the proceedings. 5 R.C.(Rev).No. 17 of 2024 ## 6. In **Narayan Murti v. Thankamma Sebastian [2005** ## **(3) KLT 102]** a Division Bench of this Court observed as follows in paragraph No.29 of that decision: “29. To our mind, the second proviso to Section 11(1) of the Act is a provision intended to prevent unscrupulous litigants from seeking eviction of persons who are not their tenants and to prevent unscrupulous tenants from protracting the Rent Control proceedings by making false claim of denial of title of the landlord. Or else, an unscrupulous litigant may resort to Rent Control proceeding instead of instituting a civil suit to get recovery of possession of the building and property from a person who is not his tenant. Likewise, an unscrupulous tenant may protract the Rent Control proceedings by raising false plea of denial of title of the landlord. It is to be borne in mind that a lease could be an oral lease and in several cases, the landlords may not even issue rent receipts. Suppose a person falsely claims that he is the landlord and files a Rent Control Petition against the person in possession of the building under the real title holder. And suppose there is no document evidencing creation of lease or any other document evidencing payment of rent. If the Rent Control Court could not even incidentally examine the question of title of the petitioner in such a Rent Control Petition, the decision would have to be rested on doubtful and scanty materials and data. Let us take the other side of the picture. A tenant who wants to protract the Rent Control proceedings and delay eviction may raise a false contention that the landlord has no title. The Rent Control Court would consider whether the denial of title is bona fide and record a finding. If the Rent Control Court finds that the 6 R.C.(Rev).No. 17 of 2024 denial of title is not bona fide, the Rent Control Court can proceed with the final trial and dispose of the case. It cannot be held that the Rent Control Court has no jurisdiction to consider the respective contentions of the parties as to the question of title to arrive at a finding as to whether the denial of title is bona fide.” 7. In **Thankachan v. V. Gireesh Kumar [2022 (1) KHC** **521]** a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, has observed in paragraph No.10 of that judgment as follows: “10. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per the first proviso to Section 11(1), nothing contained in this Section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act. As per the second proviso to Section 11(1), where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this Section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. Therefore, whenever there is denial of title of the landlord, the Rent Control Court is obliged to decide that question and depending upon the 7 R.C.(Rev).No. 17 of 2024 finding thereon, the Court has to proceed further either directing the petitioner to approach the Civil Court or proceed to consider the grounds for eviction on merits.” 8. In **Jayan Pisharody and Others v. T.S.Rajagopalan** **[2019 : KER : 13568]** this Court has held in paragraph No.13 of that order , as follows : “13. The law under the 2[nd] proviso to Section 11(1) of the Act is quite clear that when the tenant in a proceeding for eviction brought under Section 11 of the Act has raised a plea denying the title of the landlord, the Rent Control Court cannot proceed to decide the claim on merits before deciding whether the denial of title made by the tenant is bona fide.” 9. The law laid down by this Court in all the aforesaid decisions uphold the real purport of the second proviso to Section 11(1) of the Act, which makes it incumbent upon the Rent Control Court to decide the question whether the challenge of denial of title of the landlord or the claim of right of permanent tenancy by the tenant, is bona fide or not, before proceeding with the trial of the case. 10. As far as the present case is concerned, it could be seen from the order dated 07.10.2023 of the Rent Control Court, Kannur in I.A.No.3 of 2023 that the Rent Control Court, though it had dealt with the concept of ‘landlord’ and the right of co-owners of leasehold premises on the basis of the decisions of the Apex Court, has deferred the adjudication as to the denial of title of the landlord 8 R.C.(Rev).No. 17 of 2024 raised by the tenant, to the later stages of the proceedings. In the above order, the Rent Control Court has observed about the admission of the tenant that the person by name, Jameela, the predecessor-in-interest of the 1[st] respondent herein, is his landlord. However, it appears that the court has shied away from arriving at a finding as to whether the denial of title of the landlord, agitated by the petitioner herein, was bona fide or not. Unfortunately, the Appellate Authority also followed the same course, and dismissed the appeal in limine, without adjudicating the issue relating to the denial of title of the landlord. It is to be noted that the Appellate Authority, which observed in its judgment that the Rent Control Court had determined the issue of title of the landlord on the basis of the documents and the decisions on the point, did not express any opinion as to whether the above determination of the issue of title by the Rent Control Court, was right or wrong. As done by the Rent Control Court, the Appellate Authority also shied away from arriving at a finding as to whether the denial of title of the landlord, in the instant case, was bona fide or not. The above course followed by the Rent Control Court and the Appellate Authority, in our opinion, is not in consonance with the settled principles of law in this regard, and hence liable to be interfered with in this revision. As it is seen that the Appellate Authority has observed in the impugned judgment 9 R.C.(Rev).No. 17 of 2024 dated 08.12.2023 that the issue relating to title has been determined by the Rent Control Court in its order dated 07.10.2023 in I.A.No.3 of 2023, we feel it apposite that the matter has to be remanded back to the Appellate Authority to adjudicate as to whether the finding of the Rent Control Court in the above issue, was right or wrong, and to express in clear terms whether the denial of title of the landlord, raised by the tenant, is bona fide or not. In the result, the revision is disposed of as follows : - (i) The judgment dated 08.12.2023 of the Rent Control Appellate Authority (Additional District Judge-III), Thalassery in R.C.A.No.154 of 2023, is set aside. - (ii) The case is remanded back to the Rent Control Appellate Authority, Thalassery with the direction to dispose of the appeal afresh with a well-reasoned judgment, expressing in clear terms as to whether the denial of title of the landlord, raised by the tenant, is bona fide or not. - (iii) Since the R.C.P from which this appeal arose is of the year 2020, the Rent Control Appellate Authority shall make every endeavour to dispose of the appeal as expeditiously as possible. ## (sd/-) ## (sd/-) ## **G. GIRISH, JUDGE** jsr/vgd