Saifudeen M v. S. Siyad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **RCRev..No. 204 of 2018** **AGAINST THE JUDGMENT DATED 31-01-2018 IN RCA 17/2016 of RENT CONTROL APPELLATE AUTHORITY, KOLLAM** **AGAINST THE ORDER DATED 24-02-2016 IN RC(OP)02/2011 of THE RENT CONTROL COURT, KOLLAM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **SAIFUDEEN.M, AGED 52 YEARS, S/O. H.M. HANEEFA, PROPRIETOR 'CASTLE', PAIKADA ROAD, KOLLAM, RESIDING AT SANKAR NAGAR 59, CHINNAKKADA, KOLLAM EAST VILLAGE, KOLLAM - 692 001.** **BY ADVS.SRI.BABU KARUKAPADATH SMT.AMRIN FATHIMA SMT.M.A.VAHEEDA BABU SMT.V.R.LAKSHMI SRI.AVINASH P RAVEENDRAN SRI.K.M.FAISAL (KALAMASSERY) SRI.MITHUN BABY JOHN SRI.RAHUL ROY** ## **RESPONDENT/RESPONDENT/PETITIONER:** **S.SIYAD, AGED 34 YEARS, S/O. SHARAFUDEEN, SHINU MANZIL, KANNIMEL NAGAR - 53, KILIKOLLOOR P.O., KOLLAM - 692 004.** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 204 of 2018** ## **-:2:-** ## **O R D E R** ## **K. Harilal, J.** The revision petitioner is the tenant against whom an order of eviction has been passed concurrently by the courts below under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control Act), 1965 _(hereinafter referred to as 'the Act')._ The parties are referred to as in the rent control petition. 2. The petitioner filed R.C.(OP) No.02 of 2011 before the Rent Control Court, Kollam, under Sections 11(2)(b) and 11(3) of the Act, on the ground that the rent was in arrear from January, 2009 onwards and he _bona fide_ requires the petition schedule building, for starting a business for his father and his father is a dependant on him for the petition schedule building. 3. According to the petitioner, neither the **RCRev..No. 204 of 2018** **-:3:-** petitioner nor his father has any other buildings of their own to start the said business. But, several other buildings are available in the locality, to shift the business of the respondent from the tenanted premises. On the aforesaid ground, the petitioner prayed for an order of eviction under Sections 11(2)(b) and 11(3) of the Act. 4. The respondent resisted the claim for eviction under Sections 11(2)(b) and 11(3) of the Act, on the ground that there is no landlord-tenant relationship between the petitioner and the respondent and he is not a tenant, as provided under Section 2(6) of the Act. He never paid any amount as rent to the petitioner. There was no understanding between the father of the petitioner and the respondent to pay rent and there was no rental arrangement between them. Neither the father of the petitioner nor the petitioner demanded any **RCRev..No. 204 of 2018** ## **-:4:-** rent from the respondent and the respondent never paid any rent to them. Exclusive possession of the petition schedule shop room was given for doing his business free of rent. Further, it is contended that the need projected in the petition is not _bona fide_ and he is entitled to get protection under the second proviso to Section 11(3) of the Act. 5. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the need projected in the petition is _bona fide_ and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. 6. Feeling aggrieved, the respondent preferred an appeal before the Rent Control Appellate Authority and the Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and **RCRev..No. 204 of 2018** ## **-:5:-** propriety of the concurrent findings of the courts below, granting an order of eviction under Section 11(3) of the Act, are challenged in this revision. 7. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 8. The learned counsel for the revision petition/respondent focused his argument, canvassing the point that the Appellate Authority went wrong by refusing to consider the findings on denial of title, made by the Rent Control Court on a preliminary point, on the ground that the findings on denial of title made by the Rent Control Court on a preliminary point filed against the final order cannot be re-agitated in the appeal. The learned counsel further submits that, even if there is an earlier order, rejecting the denial of title and that order was not challenged in appeal, the **RCRev..No. 204 of 2018** ## **-:6:-** respondent can wait till the disposal of the rent control petition and the respondent can challenge the findings in the earlier order, in the appeal filed against the final order, allowing the rent control petition. According to the learned counsel, the appeal requires to be remitted to the Appellate Authority for considering the legality and correctness of the findings, whereby the Rent Control Court had earlier arrived at a finding on 18.08.2015 to the effect that the denial of title is not _bona fide._ 9. Per contra, the learned counsel for the respondent/petitioner advanced arguments, contending that the Rent Control Court had already passed a speaking order with a finding that the denial of title is not _bona fide_ and the said order was not challenged in appeal. According to the learned respondent/petitioner, the respondent should have **RCRev..No. 204 of 2018** **-:7:-** challenged that order before the Appellate Authority, if he was aggrieved by that order. So also, it is contended that the legality and correctness of the earlier order was not made a ground in the Appeal Memorandum. 10. In view of the arguments at the Bar, the question to be considered is, whether there is any illegality or impropriety in the refusal to consider the legality and correctness of the earlier order dated 18.08.2015, whereby the Rent Control Court rejected the denial of landlord-tenant relationship, in the appeal challenging the final order of eviction, on a finding that there is no _bona fide_ in the denial? 11. According to the Appellate Authority, the order dated 18.08.2015 whereby the Rent Control Court rejected the denial of landlord-tenant relationship, on the preliminary issue was not **RCRev..No. 204 of 2018** ## **-:8:-** challenged by way of appeal, so the respondent cannot be allowed to re-agitate that issue again in the appeal filed challenging the final order of eviction passed in the rent control petition. In order to fortify the said finding, the Appellate Authority relied on the decision of this Court in _**Assainkutty Haji v. Rajalakshmiamma**_ [2012(4) KLT 674]. 12. Going by the decision reported in _**Shafi v. Raihanath**_ [2018(3) KLT 437], it could be seen that this Court, in this decision, relied on the decision of the Hon'ble Supreme Court in _**Satyadhyan Ghosal and Others v. Smt. Deorajin Debi and Another**_ [AIR 1960 SC 941]. In this decision, the Supreme Court held that an interlocutory order, which is not challenged in appeal or revision or by way of other remedies, can be challenged in the appeal filed against the final judgment or order. A party to a **RCRev..No. 204 of 2018** **-:9:-** proceeding before a subordinate court is not obliged to question every order passed therein before a superior court as and when the same is passed. A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision. He can wait till the proceeding terminates and final decision is rendered therein. On being aggrieved by the final decision, when he challenges it before the superior court, he can also canvass the correctness of any order passed by the subordinate court, if the same has affected the final decision. 13. When applying the aforesaid principle to the instant case, it stands undisputed that the respondent has not challenged the earlier order dated 18.08.2015, whereby the Rent Control Court rejected the contention that there is no landlordtenant relationship between the petitioner and the **RCRev..No. 204 of 2018** ## **-:10:-** respondent. The impugned judgment shows that in the appeal challenging the order of eviction passed in the rent control petition, the respondent made an attempt to challenge the findings in the order dated 18.08.2015 and the Appellate Authority refused to consider the same on a finding that the respondent cannot be allowed to re-agitate the said findings in the present appeal. 14. Going by the decision reported in _**Assainkutty Haji**_ 's case (supra), which was relied on by the Appellate Authority, we find that the facts of the case are entirely different. In that case, the order rejecting the denial of title was challenged in appeal and confirmed by the Appellate Authority. Thereafter, the said order was again challenged in the appeal filed against the final order allowing the rent control petition. Thus, the interlocutory order was challenged again in the **RCRev..No. 204 of 2018** ## **-:11:-** appeal filed against the final order. In that context, this Court held that, if once a decision on an interlocutory application has attained finality, in the appeal filed against that order, during the pendency of the suit, the said decision cannot be allowed to be re-agitated again in the appeal, filed against the final order. We conclude that the Appellate Authority wrongly relied on the decision of _**Assainkutty Haji**_ 's case (supra) and refused to consider the findings in the order dated 18.08.2015. It follows that the respondent shall be given an opportunity to challenge the findings in the order dated 18.08.2015 before the Appellate Authority in the appeal filed against the final order allowing the Rent Control Petition. 15. Consequently, the impugned judgment passed by the Appellate Authority is set aside and the rent control appeal will stand remitted to the Appellate **RCRev..No. 204 of 2018** ## **-:12:-** Authority for considering the appeal afresh and to pass judgment accordingly. The Appellate Authority shall pass judgment afresh, after rehearing the appeal, in view of the observations made above, at the earliest, at any rate, within a period of three months from today. It is made clear that this Court has not considered any other points raised in this revision. This rent control revision is disposed of accordingly. All pending Interlocutory Applications will stand closed. **Sd/-** ## **K.HARILAL** ## **JUDGE** **Sd/-** ## **ANNIE JOHN** ## **JUDGE** DST //True copy// P.A. To Judge