Selma v. Chandrasekhara Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 RCRev..No. 354 of 2006() -----------------------RCA.4/2003 OF RENT CONTROL APPELLATE AUTHORITY, N. PARAVUR RCP.5/2001 OF RENT CONTROL COURT, ALUVA. .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS; ---------------------------------------------------------------- 1. SELMA, AGED 62 YEARS, W/O.LATE A.M. ABDUL AZEEZ, ARAMENKUDY HOUSE, KODIKUTHUMALAYIL, ASOKAPURAM, ALUVA. 2. SHAJAHAN, AGED 32 YEARS, S/O. LATE A.M. ABDUL AZEEZ, ARAMENKUTY HOUSE, KODIKUTHUMALAYIL, ASOKAPURAM, ALUVA. BY ADV. SRI.KURIAN ANTONY EDASSERY SMT.ANN EMIL JOSEPH SRI.BOSE K.THACHIL RESPONDENT(S)/RESPONDENTS/PETITIONERS: ------------------------------------------------------------------- 1. K.A. CHANDRASEKHARA MENON, AGED 75 YEARS, S/O. LATE GOPALAPILLAI, C. GARDENS, THOTTAKKATTUKARA, ALUVA WEST VILLAGE, REPRESENTED BY HIS SON AND POWER OF ATTORNEY HOLDER K.C. BALAGOPAL, AGED 42 YEARS, C. GARDENS, THOTTAKKATTUKARA, ALUVA (DIED). 2. K.C. BALAGOPAL, S/O.K.A.C. MENON, C. GARDENS, THOTTAKKATTUKARA, ALUVA. 3. K.C. RAMESH, S/O. K.A.C. MENON, C. GARDENS, THOTTAKKATTUKARA, ALUVA.(REMOVED FROM THE PARTY ARRAY) 4. K.C. SANTHOSH, S/O. K.A.C. MENON, - C. GARDENS, THOTTAKKATTUKARA, ALUVA. 5. MEENA BALRAJ, D/O.K.A.C. MENON, - C. GARDENS, THOTTAKKATTUKARA, ALUVA.(REMOVED) RESPONDENTS NO.3 AND 5 ARE REMOVED FROM PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DT. 4-6-07 IN IA.1223/07 ADV. SRI.DINESH R.SHENOY FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & P.S. GOPINATHABN, JJ.** ----------------------------------------------RCR. No. 354 of 2006 ----------------------------------------------Dated this the 7[th] day of September, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** Under challenge in this revision under Section 20 is the judgment of the Rent Control Appellate Authority ordering eviction against revision petitioners tenants under sub-section (3) of Section 11. Even though the original landlord Sri.K.A.Chandrasekhara Menon who died during the pendency of the appeal and is survived by respondents 2 to 5 had invoked ground under /Section 11(2)(b) also, and the Rent Control Court ordered eviction under that ground, as it is submitted by the learned counsel for the revision petitioner that in the present revision his challenge is only against the eviction order passed under Section 11(3), we are considering only the legality, regularity and propriety of the order of eviction passed by the Appellate Authority against the revision petitioners under sub-section (3) of RCR. No. 354/06 -2- section 11. The need which was projected in the present RCP, RCP No. 5 of 2001 by the deceased Chandrasekhara Menon under Section 11(3) was the need to accommodate his son K.C.Balagopal, the second respondent in the RCR. It was stated that Sri. Balagopal is an Advocate by profession and that the building is required, so that Sri.Balagopal can have his law chambers in the building. Sri.Balagopal was examined as PW-1 as the power of attorney holder of his father, the petitioner Sri.Chandrasekhara Menon. The Rent Control Court was impressed by his evidence and accordingly held that the need is bona fide. Even though the protection of the second proviso was claimed by the revision petitioners, they were unsuccessful in proving that they are entitled for the above protection. Accordingly, the Rent Control Court ordered eviction inter alia under subsection (3) of Section 11. The Appellate Authority under the impugned judgment confirmed the order of eviction passed against the revision petitioners. It was during the pendency RCR. No. 354/06 -3- of the rent control appeal that Sri.Chandrasekhara Menon passed away. As soon as Sri.Chandrasekhara Menon passed away, the second respondent herein in whose favour the petition schedule building had been bequeathed by Sri.Chandrasekhara Menon under a registered will, filed RCP 2 of 2005 arraying the revision petitioners as well as one Kanaka Raj who was the tenant in occupation of the room adjacent to the petition schedule room. Significantly, RCP No.2 of 2005 was instituted invoking the grounds under Section 11(3) and under Section 11(4)(iv). It was specifically averred in paragraph 7 of the above RCP that even though Section 11(3) was also invoked, the landlord (the first respondent herein) is prepared to carry out reconstruction of the entire building in accordance with the plan which was produced along with the RCP and to reinduct the present revision petitioners into a portion of the reconstructed building subject to their liability to pay the fair rent. The revision petitioners entered appearance in RCP 2 RCR. No. 354/06 -4- of 2005 and filed a detailed statement of objections raising various contentions. However, later they would file IA. 2161/06 seeking to withdraw from the contentions which they had raised in RCP. No.2 of 2005 and a direction by the court that an order of eviction be passed against them with a reciprocal direction to the landlord carry out reconstruction as per the plan produced along with the RCP and to reinduct the petitioners into one room. The prayer was obviously in terms of the third proviso to Section 11(4)(iv). The Rent Control Court after making 3 or 4 postings on the IA would allow the IA as prayed for noting that no counter was filed by the petitioners in the RCP. This was on 25-102006. RCA No. 4 of 2003 filed by the revision petitioners against the eviction order passed by the Rent Control Court in the present case was being adjourned from time to time. Finally on 17-8-2006 the above RCA was dismissed by the Appellate Authority by passing the judgment which is impugned in this revision. As soon as the above RCA was RCR. No. 354/06 -5- dismissed, the first respondent would filed IA. 232/07 in RCP 2 of 2005 on 22-1-2007. It is averred in affidavit in support of the IA that RCA. 4 of 2003 is already dismissed. RCP. 2 of 2005 has become infructuous as far as the present petitioners are concerned. Hence the prayer in the IA was as follows: "The court may be pleased to delete the names of respondents 1 and 2 (revision petitioners herein) from the array of parties in the RCP and dismiss the claim for eviction as against them under Section 11(3) and Section 11(4)(iv) of the Act as infructuous and hence not pressed in the light of the judgment dated 17-8-2006 in RCA. 4 of 2003." To the above IA the revision petitioners filed serious counter. It was pointed out through the counter that the judgment in RCA. 4/03 has been stayed by this Court in the present revision. However, the learned Rent Control Court would refer to the judgment of M.P. Mennon, J. in Cheru Ouseph v. Kunjupathumma, 1981 KLT 495 and held that the Rent Control Court has inherent RCR. No. 354/06 -6- power to delete parties from the array of parties though such a power is not specifically conferred under Section 23 and would allow the application. However, a sum of Rs.500/- was ordered as cost for compensating "prejudice if any which may be caused". 2. Sri.Kurian Antony Edassery, learned counsel for the revision petitioner would assail the judgment of the Appellate Authority on the various grounds raised in the memorandum of revision petition. He submitted that at any rate the filing of RCP 2 of 2005 by the second respondent on his own invoking a different ground and offering the revision petitioner identical room is an event which tells upon the bonafides of the need projected in the present RCP that the revision petitioners are to be evicted once and for all. According to him, the order in IA 2161 of 2006 has become final. The petitioners are not to be deprived of the benefit of that order by the impugned judgment. Mr. Kurian Antony would submit that the order in RCR. No. 354/06 -7- IA. 232 of 2007 in RCP. 2 of 2005 was passed by the learned Rent Control Court at a time when this Court was in seizin of the present revision and hence, is liable to be ignored by the revision petitioners and at any rate, can only be subject to the decision in this revision. Mr.Kurian Antony would then submit that Sri.Kanakaraj the surviving respondent in RCP No.2/05 the tenant in occupation of the adjacent portion of the larger building has already surrendered possession of his portion to the landlord as per Annexure-D release deed produced along with I.A.355/07. Mr.Kurian Antony highlighted that it is after obtaining surrender from Mr.Kanakaraj under Annexure-D release deed and concealing that vital information from the Rent Control Court that the landlord obtained an ex parte order of eviction in RCP.2/05 against Mr.Kanakaraj for the purpose of giving surface credibility for his mala fide claim under sub Section 3 of Section 11 against the revision petitioners. As regards the rent in arrears application under Section 11(2) RCR. No. 354/06 -8- - (c) (Annexure-G) has already been filed for getting the order of eviction under Section 11(2)(b) vacated. 3. All the submissions of Mr.Kurian Antony were very forcefully resisted by Mr.Dinesh R. Shenoy, the learned counsel for the landlord. Mr.Shenoy would submit that this Court's jurisdiction under Section 20 is revisional in nature and this Court will not be justified in upsetting conclusions of fact arrived at by the statutory fact finding authorities. He would take strong exception to the submissions of Mr.Kurian Antony that the landlords have played fraud on the Rent Control Court and the revision petitioners. Learned counsel would however, lastly submit that it has not been brought to his notice that I.A.2161/06 in RCP.2/05 stood allowed by the Rent Control Court already while it was considering the subsequent I.A.232/07. He also submitted that the landlord has nothing to do with Annexure-D release deed though it is true that Mr.Kanakaraj has vacated his portion of the building. RCR. No. 354/06 -9- 4. We have very anxiously considered the rival submissions addressed at the Bar. We have considered the materials on record before the statutory authorities as well as additional materials placed before this Court particularly Annexures-A to G. We find it extremely difficult to sustain the impugned judgment. 5. As for the eviction order passed under Section 11(2) (b) both sides agree that the said issue can be decided in the proceedings under Section 11(2)(c) already initiated by the revision petitioners before the Rent Control Court. We are therefore, not examining the legality of the eviction order passed under Section 11(2)(b) and leave that issue to the Rent Control Court in the proceedings already initiated under Section 11(2)(c). 6. The crucial question which arises now is whether the eviction order passed under Section 11(2)(c) is sustainable. While considering that question we are of the view that the implication of the order in I.A.2161/06 in RCP.2/05 as well RCR. No. 354/06 -10- as the subsequent event of Sri.Kanakaraj surrendering the building which was occupied by him ought to be examined by the Rent Control Court and a fresh decision should be taken by that court. We find force in the submission of Mr.Kurian Antony Edassery that the conduct of the landlord in filing RCP. 2/05 against the revision petitioner during the pendency of the present RCP invoking the ground of reconstruction and offering to re-induct the revision petitioner into the new building after reconstruction is a consequence while deciding the bonafides of the claim urged in this petition. The result is that the order of the Rent Control Court and the Judgment of the Rent Control Appellate Authority are set aside. RCP is remanded to the Rent Control Court. The Rent Control Court will decide the issue afresh. The order of the Rent Control Court in I.A.2161/06 in RCP.2/05 which is binding on both sides will be noticed by the Rent Control Court. So also the impact of the event that the RCR. No. 354/06 -11- building which was occupied by Sri.Kanakaraj fell vacant, on the right of the landlord to obtain eviction under Section 11(3) as well as the admissions of the landlord in RCP.2/05 that he is ready and willing to reconstruct the entire building and re-induct the tenant into more or less equal area will also be noticed by the Rent Control Court. The final order will be passed by the Rent Control Court within four months of parties entering appearance pursuant to this order of remand. As we notice that the rent of Rs.130/- per mensem which is being paid by the revision petitioners is ridiculously low, we are inclined to re-fix the rent tentatively with effect from 1[st] October, 2010 (payable with effect from that date) at Rs.900/- per mensem. We make it clear that this refixation is tentative and it is open to either party if so advised, to apply for fixation of fair rent before the Rent Control Court. We also make it clear that this rate is fixed only for the existing building and the rent payable for the RCR. No. 354/06 -12- new building into which the revision petitioners may be reinducted (if the Rent Control Court ultimately decides to order eviction only on the ground of Section 11(4)(iv)) will be decided by the court separately without being influenced by the present re-fixation. We also give a period of 30 days time from today to the revision petitioners to get the order of eviction passed under Section 11(2)(b) vacated if necessary by making additional deposits. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(P.S. GOPINATHAN, JUDGE)** ksv/kns-