R.C.R.Nos.161 and 162 of 2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** **RCREV. NO. 161 OF 2020** **AGAINST THE JUDGMENT DTD 21/08/2020 IN RCA 17/2018 OF THE COURT OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),KALPETTA (ORDER DTD 16/7/2018 IN RCP 14/2015 OF RENT CONTROL COURT, KALPETTA)** ## **REVISION PETITIONERS/APPELLANTS IN RCA/RESPONDENTS IN RCP:** **1 RAJAN THOMAS AGED 58 YEARS S/O.C.M.THOMAS, CHERUKOTTU HOUSE, ARAKKUZHA POST, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT - 686 672.** **2 SANJU J. AGED 47 YEARS S/O. C. M. THOMAS, CHERUKOTTU HOUSE, ARAKKUZHA POST, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT - 686 672.** **BY ADVS.S.V.BALAKRISHNA IYER (SR.) P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP:** **SHEELU SAIRA THOMAS AGED 30 YEARS D/O. (CLAIMING TO BE) M. G. THOMAS, M.G.T.VILLA, IV/685, P.T.USHA ROAD, KOZHIKODE TOWN VILLAGE, KALATHINKUNNU DESOM, KOZHIKODE TALUK AND DISTRICT - 673 032.** **BY ADVS.GRASHIOUS KURIAKOSE (SR.) SMT.CELINE JOSEPH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 28.11.2022, ALONG WITH RCRev..162/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.Nos.161 and 162 of 2020** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** **RCREV. NO. 162 OF 2020** **AGAINST THE JUDGMENT DTD 21/08/2020 IN RCA 16/2018 OF THE COURT OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),KALPETTA (ORDER DTD 16/7/2018 IN RCP 13/2015 OF RENT CONTROL COURT, KALPETTA)** ## **REVISION PETITIONERS/APPELLANTS IN RCA/RESPONDENTS IN RCP:** - **1 RAJAN THOMAS,AGED 58 YEARS S/O.C.M.THOMAS, CHERUKOTTU HOUSE, ARAKKUZHA POST, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686672.** **2 SANJU J.,AGED 47 YEARS S/O.C.M.THOMAS, CHERUKOTTU HOUSE, ARAKKUZHA POST, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686672.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER SMT.B.ANUSREE SMT.MEERA P.** ## **RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP:** **SHEELU SAIRA THOMAS D/O.(CLAIMING TO BE) M.G.THOMAS, M.G.T.VILLA, IV/685, P.T.USHA ROAD, KOZHIKODE TOWN VILLAGE, KALATHINKUNNU DESOM, KOZHIKODE TALUK AND DISTRICT-673032.** **BY ADVS.GRASHIOUS KURIAKOSE (SR.) SMT.CELINE JOSEPH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 28.11.2022, ALONG WITH RCRev..161/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **R.C.R.Nos.161 and 162 of 2020** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.Nos.161 and 162 of 2020** **------------------------------------------Dated this the 28th day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** These rent control revisions under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) have been filed against the common judgment dated 21/08/2020 in R.C.A.No.16/2018 and R.C.A.No.17/2018, on the file of the Rent Control Appellate Authority (RCAA), Kalpatta, Wayanad, against the common order dated 16/07/2018 in R.C.P. Nos.13/2015 and 14/2015 on the file of Rent Control Court (RCC), Kalpatta. The revision petitioners are the appellants in the appeals and respondents-tenants in the R.C.Ps. The respondent herein is the respondent in the appeals and the petitioner in R.C.Ps. The parties and documents will be referred to as described in the R.C.P. 2. R.C.P.Nos.13/2015 and 14/2015 were filed by the petitioner claiming to be the owner of the petition schedule buildings. According to her, the petition schedule buildings belonged to her parents, namely, M.G.Thomas and Saramma Thomas. After their demise, the property has devolved on her. In the petition schedule building in R.C.P.No.13/2015, the respondents are 4 ## **R.C.R.Nos.161 and 162 of 2020** conducting a business in the name and style 'Zodiac Restaurant & Bar'. In the petition schedule building in R.C.P.No.14/2015, they are conducting a family restaurant and the adjoining rooms are being used for the said business. Initially, the properties had been entrusted to the respondents by way of a registered mortgage. The respondents herein had filed O.S No.101/2005 before the Munisiff Court, Kalpetta, alleging that the schedule buildings had been leased out to them and that they are tenants of the same. The suit was subsequently transferred to the Sub Court, Sulthanbathery, and was renumbered as O.S.No.161/2005. The suit was one for injunction for restraining the parents of the petitioner from forcibly evicting the respondents from the schedule building. The suit was disposed of on the basis of the undertaking given by the defendants in the said suit. The petitioner's parents had filed O.S.No.165/2004 for redemption of the mortgage property, that is, the schedule buildings in the present petitions. The respondents contended that the deed of mortgage relied on by the plaintiffs was a sham document and that they are lessees of the property. The contentions of the respondents were upheld by the trial court as well as the appellate court. 2.1. The petition schedule building in R.C.P.No.13/2015 is situated by the side of NH-212 and in a commercially important area in Kalpatta town. The petitioner, engaged in hotel business, is conducting a lodge in the 5 ## **R.C.R.Nos.161 and 162 of 2020** name and style 'Hotel MGT Tourist Home' in the same compound in which the petition schedule buildings are situated. The petitioner is having 18 lodge rooms which are being let out on daily basis. Though the petitioner is running a lodge, there is no restaurant attached to the lodge to provide food and beverages to the inmates of the rooms, due to which, she is unable to attract more customers to her lodge. Hence, the petitioner proposes to start a multicuisine restaurant to cater to the guests of the hotel. The proposed business would augment the income being derived from the business the petitioner is presently conducting. The petitioner has no other vacant buildings in her possession to start the proposed business. The monthly rent of ₹7,500/- has been paid by the respondents till April 2004. After the filing of O.S. No.161/2005, they have defaulted the payment of rent. Though the petitioner issued a lawyer notice demanding the payment of rent arrears, the respondents have not acceded to the demand. In R.C.P.No.13/2005, the claim for eviction is under Sections 11(2)(b), 11(3) and 11(4)(v) of the Act. 2.2. R.C.P.No.14/2015 has been filed claiming eviction under Section 11(8). According to the petitioner she requires the tenanted premises, which is a portion of the building in her possession, to expand her business. The respondents are in possession of ten hotel rooms situated in the first floor, a store room, a room being used as family restaurant in the ground floor of the 6 ## **R.C.R.Nos.161 and 162 of 2020** building. These rooms are also required by the petitioner to expand her business. 3. The respondents filed counter denying the allegations and the need alleged in the petitions. They also claimed the benefit of the second proviso to Section 11(3) of the Act. 4. PW1 was examined and Exts.A1 to A11 were marked on the file of the petitioner. RW1 was examined in Exts.B1 to B27 were marked on the side of the respondents. The report and rough sketch of the Advocate Commissioner have been marked as Exts.C1 to C3. Ext.X1 has also been marked. The RCC, after appreciating the oral and documentary evidence, allowed R.C.P.No.13/2015 under Section 11(3) of the Act and R.C.P.No. 14/2015 under Section 11(8) of the Act. The respondents-tenants filed R.C.A.No.16/2018 against the order in R.C.P.No.13/2015 and R.C.A.No.17/2018 against the order in R.C.P.No.14/2015. The RCAA by the impugned judgment, dismissed both the appeals. Aggrieved, the respondentstenants have come up in revisions. 5. The only point that arises for consideration is, whether the concurrent findings of the RCC and the RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Adv.Balakrishna Iyer, the learned Senior counsel for the 7 ## **R.C.R.Nos.161 and 162 of 2020** revision petitioners and Adv.Grashious Kuriakkose, the learned Senior counsel for the respondent. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an appellate authority. The scope of interference by the revisional court is restricted to cases where the RCC or the RCAA have relied on irrelevant consideration, ignored valuable items of evidence, or applied wrong principles of law. It can interfere only where the impugned order is illegal, irregular or improper. Therefore we will consider whether the findings of the RCAA suffer from any illegality, irregularity or impropriety. 8. The main grievance of the respondents in these revisions is that the concurrent finding of both the RCC as well as the RCAA that the denial of title by the respondents is not _bona fide,_ is incorrect and wrong. According to them, when they have specifically denied the title of the petitioner and when it is admitted by the petitioner herself that she is not the child born to M.G.Thomas and his wife Saramma Thomas and also when she has failed to produce any documents to show that she has been legally adopted by the couple, both the authorities ought to have found the denial of title by the tenants to be _bona fide_ and relegated the parties to a civil court for resolving the disputes. Reference has been made to a Full Bench decision of this Court 8 ## **R.C.R.Nos.161 and 162 of 2020** in **Parthakumar v. Ajith Viswanathan, 2006 (2) KLT 250** , to substantiate the argument that when there are materials on record to show that the denial of title raised by the tenant is _bona fide_ , the RCC ought to have relegated the matter to a civil court as vexed and intricate questions of title are never intended to be decided by the RCC before whom the proceedings are only summary in nature. _Per contra_ , it was submitted by the learned Senior counsel appearing for the petitioner that the RCC need only look into the question whether the denial is _bona fide_ . The said exercise has been done in the case on hand. The finding that the denial is not _bona fide_ suffers from no infirmity warranting an interference by this Court, contends the petitioner. 9. The specific case of the petitioner in the R.C.Ps. is that, after the demise of her parents, namely, M.G.Thomas and Saramma Thomas, the schedule properties have devolved on her. In the counter filed by the respondents, the allegation of the petitioner that after the demise of M.G.Thomas and Saramma Thomas, the property has devolved on her, is denied. The contention is that the petitioner has to prove the said claim and also the manner in which the property has devolved on her. According to the respondents, to their knowledge, M.G.Thomas and Saramma Thomas had no children. The respondents therefore denied the derivative title of the petitioner over the schedule buildings. 9 ## **R.C.R.Nos.161 and 162 of 2020** 9.1. The petitioner when examined as PW1 admitted that she is not the daughter born to M.G.Thomas and Saramma Thomas and that she has not produced any documents to show that she had been legally adopted by the couple. On the other hand, she has produced Exts.A4, A5 and A11. Exts. A4 and A5 are heirship certificates which say that she is the daughter of M.G.Thomas and Saramma Thomas. Ext.A11 shows that M.G.Thomas was appointed as her guardian. These documents will have to be viewed or appreciated in the light of the deposition of the first respondent who was examined as RW1. In the cross examination, RW1 deposed that in A.S.No.9/2010 he had not objected to the petitioner getting herself impleaded on the death of the appellants. He is not aware whether the original owners of the property, namely, M.G.Thomas and Saramma Thomas, had other children. He does not know whether the petitioner is the adopted daughter of the couple. To a further question, he answered that, he has not raised any objection or dispute to the petitioner collecting the rent of the petition schedule buildings. According to him, there is no special reason for not contending in the counter that the petitioner is not the landlady of the buildings. He also deposed that he was not aware that a dispute had been raised regarding the existence of landlord-tenant relationship between the parties (ഹര��ക�ര� A.S.No.9/2010 നമര അപ�ല അന��യത�ല കക�യ�യ� അപ�ല 10 ## **R.C.R.Nos.161 and 162 of 2020** നടത�യത�നനപറ� ഞ�ന ക�ര�മ�യ� തരക� പറഞ�ട�ല. മന ഭവടമകള�യ സ�റ�മ തത�മസ(, M.G.തത�മസ( എന�വരക( തവനറ മകള ഉളത�യ� എന�കറ�യ�ല. ഹര��ക�ര� M.G.തത�മസ�ന/യ�, സ�റ�മ തത�മസ�ന/യ� ദത പത�യ�ത5� എന( എന�കറ�യ�ല. . ഹര��ക�ര�ക( വ�ടക സ6�കര�ക�ന അവക�ശ� ഇല എന( ഒര തരക� ഞ�ന പറഞ�ട�ല ഹര��ക�ര�ക( വ�ടക വ�ങ�ന അധ�ക�രമ�ല എന� ട�യ�ള landlady അല എന ക�ര�വ� counter statement ല പറയ�ത�ര�ക�ന പതത�ക� ക�ര5� ഇല. Witness adds ആ ക�ര�� ആ സമയ� അറ�യ�ല�യ�രന. ഞ�ന� ഹര��ക�ര�യ� ഒര landlord-tenant relationship ഇല എനന�ര തരകവ�ഷയ� എന�കറ�യ�ല�യ�രന.). This deposition of RW1 further probabilises the case of the petitioner that after the death of the original landlords, the property has devolved on her. 9.2. Therefore, he has no case that the petitioner is not entitled to receive the rent of the tenanted premises. Here we refer to Exts.B3 to B6 produced by the respondents. Ext.B3 is the copy of the judgment in O.S.No.165/2004 on the file of the Sub-ordinate Court, Sulthanbathery. This was a suit filed by M.G.Thomas and Saramma Thomas for redemption of mortgage and recovery possession of the property from the respondents herein. The suit was dismissed as per Ext.B3 judgment holding that the relationship between the parties is that of a landlord and tenant and not that of a mortgagor and mortgagee as alleged by the plaintiffs in the said case. Ext.B4 is the decree in the said case. The plaintiffs in the said suit are seen to 11 ## **R.C.R.Nos.161 and 162 of 2020** have filed A.S.No.9/2010 against Exts.B3 and B4 judgment and decree. The appeal was dismissed confirming the judgment and decree of the trial court. Exts.B5 and B6 are the certified copies of the judgment and decree in the appeal. It is admitted that during the pendency of the appeal, the appellants, namely, M.G.Thomas and Saramma Thomas passed away. The petitioner herein then got herself impleaded as the supplemental third appellant claiming to be the daughter of the appellants. It is admitted that the respondents in the said appeal, who are the respondents herein, never objected to the impleadment of the petitioner wherein she claimed to be the daughter of the appellants therein. The learned Senior counsel for the respondents submitted that it may be true that the respondent in A.S.No.9/2010 had not disputed the claim of the petitioner that she is the daughter of M.G.Thomas and Saramma Thomas. But that would not prevent them from raising such a dispute in the present proceeding as the decision in the impleading petition does not operate as _res judicata_ . In support of this argument, reference is made to the decisions in **Govindan Nair v. Janaki Amma, 2001 (2) KLT 360, Jaladi Suguna v. Satya Sai Central Trust, 2008 (8) SCC 521, Dasharath Rao Kate v. Brij Mohan Srivastava, 2010 (1) SCC 277, Suresh Kumar Bansal v. Krishna Bansal, 2010 (2) SCC 162** . 10. Order XXII Rule 5 CPC says that where a question arises as to 12 ## **R.C.R.Nos.161 and 162 of 2020** whether any person is or is not a legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. Therefore it is clear that the Court has to decide whether any person is or is not a legal representative of the deceased plaintiff or defendant under Order XXII Rule 5 and that the said question cannot be relegated to subsequent proceedings. The provision contained in Order XXII Rule 5 CPC is mandatory. However, the court's final decision on that question is conclusive as between the parties to such proceeding so far as the particular case is concerned. Such an order passed with notice to the parties concerned and after hearing them cannot be allowed to be questioned by any of them at any subsequent stage of the suit ( **Kali Pachi v. Ramalekshmi Ammal Mutharnmal, AIR 1953 Travancore Cochin 158** ). 10.1. In the decisions submitted on behalf of the respondents it has been held that substitution of a person as a legal representative of the deceased plaintiff or defendant under Order XXII Rule 5 CPC will not operate as _res judicata_ in a subsequent proceeding, since what is determined under Order XXII Rule 5 while recording the legal representatives of the deceased party to a proceeding is the party who got _prima facie_ claim to represent the estate of the deceased and to confer him the status of a legal representative of the deceased party and that the order cannot be 13 ## **R.C.R.Nos.161 and 162 of 2020** characterised as one finally decided by the court as contemplated under Section 11 CPC. 11. It is true that the decision in the impleading petition by which the petitioner herein was impleaded as the legal representative of M.G.Thomas and Saramma Thomas in A.S.No.9/2010 would not operate as _res judicata_ and so the respondents are entitled to raise such a dispute in the present proceedings. However, as pointed out by the learned Senior counsel for the petitioner, the failure to dispute the same in A.S.No.9/2010 is one aspect which would affect the _bona fides_ of the claim raised by the respondents. If the denial of title had actually been _bona fide_ , the respondents-tenants would have raised the said objection at the earliest possible opportunity that was available to them. It was in A.S.No.9/2010, the petitioner entered the scene for the first time in the series of disputes that seem to have existed between the original landlords and the tenants. In spite of the fact that they had an opportunity to raise such a contention in the appeal, they never did so. On the other hand, they admitted or in other words, did not dispute the claim made by the petitioner herein that she is the daughter of M.G.Thomas and Saramma Thomas. Added to this, there is the admissions of RW1 to which we have already referred to. To top it all, it is seen that the arrears of rent has been paid by the respondents to the petitioner. On 05/12/2015 an amount of 14 ## **R.C.R.Nos.161 and 162 of 2020** ₹5,00,000/- was deposited by the respondents before the RCC towards arrears of rent. The said amount withdrawn by the petitioner was not objected to by the respondents. Thereafter, a memo dated 18/01/2016 is seen filed on behalf of the petitioner before the RCC to the effect that an amount of ₹4,60,000/- has been received as the balance admitted arrears of rent by way of a cheque. Therefore, all these factors taken together would show that the denial of title raised is not _bona fide_ . 12. Further, the denial of title of the landlord or claim of permanent tenancy by the tenant does not _ipso facto_ efface the jurisdiction of the RCC to decide the petition for eviction under sub-section (1) of S.11. The essential requisite to attract the said proviso is that such benefit or claim by the tenant shall be _bona fide_ . When such a question is raised by the tenant, the RCC shall decide whether the said denial or claim is _bona fide_ and record a finding thereon. It is only thereafter that the landlord shall be entitled to sue for eviction of the tenant in a civil court ( **Gouthami v. Indira Kunjamma, 1994** ## **KHC 246** ). 12.1. As far as the scope of enquiry is concerned, the RCC is expected to do that only in a summary manner. The court must be in a position to say that the chances of the plea being upheld by the civil court is fairly on the higher side. Then alone, the RCC is justified in holding that the 15 ## **R.C.R.Nos.161 and 162 of 2020** denial is _bona fide_ . The court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea **(Aboobacker v. Girija, 1995 KHC 100)** . 13. Another aspect to be taken note of is that till date, nobody has come forward claiming any right in the property or claiming to be the heir(s) of M.G.Thomas and Saramma Thomas. In such circumstances, we find that the denial raised is not _bona fide_ . Therefore both the RCC and the RCAA were justified in concluding so. 14. Two R.C.Ps. have been filed by the petitioner because the tenanted premises are housed in two separate buildings. The need put forward in R.C.P. No.13/2015 is one under Section 11(3) and the need alleged in R.C.P.No. 14/2005 is under Section 11(8). It is true that the petition schedule buildings in both the R.C.Ps. had been leased out to the respondents by way of a singe lease agreement. By instituting two R.C.Ps., there is no splitting up of the tenancy as argued on behalf of the respondents as the entire tenanted premises covered by the lease agreement is sought to be evicted by filing two R.C.Ps. simultaneously. Therefore, there cannot be any objection on that ground also. The respondents have been unable to show any infirmity, illegality or irregularity in the findings of the RCC or the RCAA. Hence, no interference is called for. 16 ## **R.C.R.Nos.161 and 162 of 2020** In the result, the rent control revisions are dismissed. The order of eviction granted by the RCC and confirmed by the RCAA under Sections 11(3) and 11(8) is confirmed. Taking into account the facts and circumstances in this case, we deem it appropriate and reasonable to grant the respondents six months' time to vacate the building on condition that they file an undertaking before the RCC on or before **26/12/2022** to vacate the tenanted premises within a period of six months from this day and on condition that the respondents pay the arrears of rent if any, on or before 26/12/2022 and also continue to pay the monthly rent on or before the 10[th] day of every succeeding month till they vacate the buildings. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/