RCR No. 358 of 2010. Case: Smitha & Anr. Vs Krishnan. High Court of Kerala (India)
| Case Number | RCR No. 358 of 2010 |
| Counsel | For Appellant: N. Raghuraj and A.V. Ravi, Advs. And For Respondents: Jacob Sebastian, Adv. |
| Judges | R. Basant and M.C. Hari Rani, JJ. |
| Issue | Code of Civil Procedure, 1908 - Rules 22, 33; Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 10, 11, 11(10), 11(2), 11(2)(c), 11(3), 11(4), 11(4)(10), 11(4)(i), 11(4)(ii), 11 (4)(iii), 11 (4)(v), 11(5), 11(6), 11(7), 11(8), 11(1), 11(12), 11(4)(i), 11(4)(i)(v), 11(4)(iv), 18 |
| Citation | 2011 (4) KLJ 851, 2012 (1) RCR 100 (Rent) |
| Judgement Date | October 20, 2011 |
| Court | High Court of Kerala (India) |
Order:
R. Basant, J.
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Two questions of moment which have substantial significance in the Rent Control law in the State are raised for consideration in this revision petition. Challenge is raised against concepts that have occupied the field for a fairly long period of time. Ideal law is the perfect and just law. The quest and the endeavour to achieve that must continue. That concepts have occupied the field for a long period of time is not, by itself sufficient reason to refuse to have a re-look at the law when serious doubts exist about the validity of such entrenched concepts. The questions are:
i) In a claim for eviction under Section 11(3), 11(4), 11 (7) and 11(8) of the Kerala Building (Lease and Rent Control) Act (the Act hereafter), is the landlord bound, after establishing such grounds for eviction, to show further that his claim for eviction is bona fide? Is not the Court under Section 11(10) at all bound to consider the bona fides of such claim? Is there serious dichotomy between Aboobacker v. Sahithya P.S.Sangham Ltd., 2004(2) KLT 947 and the decisions of coequal Benches?
ii) Can a litigant claim a further and different relief which is specifically denied to him by subordinate authorities in an appeal or revision under the Act filed by his adversary challenging a part of the order adverse to him when such litigantis, himself not choosing to challenge the rejection of his claim for such specific relief by preferring any appeal/revision or cross objections. Do precedents in Santha v. First Additional District Judge, 1994 (1) KLT 516 and Ganesh v.Varghese, 2005(1) KLT 282 require reconsideration?
Abrief reference to vital facts may be relevant. Tenancy is admitted. The landlord claimed eviction against the tenant under Section 11(2) (arrears of rent), 11(4) (i) (contumacious sub-lease) and 11(4)(ii) (destructive and objectionable use of the premises). The alleged sub-tenant admittedly the brother-in-law of the tenant, was arrayed as the second respondent in the proceedings before the Rent Control Court. The Rent Control Court rejected the claim both under Section 11(4)(i) and 11(4)(i). The claim under Section 11(2) was allowed. Both the landlord and the tenant went before the Rent Control appellate authority with appeals. The tenant challenged the order of eviction under Section 11(2) whereas the landlord challenged the rejection of his claim under Section 1l(4)(i). The appellate authority, by the impugned judgment, allowed the appeal of the tenant and set aside the order of eviction under Section 11(2). The appellate authority allowed the appeal filed by the landlord; reversed the finding of the Rent Control Court under Section 11(4)(i) and directed eviction under Section 11(4)(i). There was no challenge raised before the appellate authority against the rejection of the claim by the Rent Control Court under Section 11 (4)(ii).
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The landlord did not prefer any revision against the judgment of the Appellate Authority. The tenant and the alleged sub-tenant together have preferred this revision petition. They advance a contention that the finding that there was contumacious and objectionable sub-lease/transfer of possession is legally and factually unsustainable and is liable to be vacated. It is further contended that the subordinate authorities have failed to consider the question whether the claim under Section 11(4)(i) is bona fide as insisted by Section 11 (10) of the Act The landlord in turn, though he has not preferred any revision petition (or cross objection in the revision petition filed by the tenant) against the setting aside of the order of eviction under Section 11 (2) wants this Court in this revision petition to consider his claim for eviction under Section 11(2) and restore the order of eviction under Section 11 (2) passed by the Rent Control Court.
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Issues: Three issues therefore arise for consideration in this revision petition. They are;
i) Whether the finding that there is objectionable sub- lease is legally and factually correct and whether the same deserves to be set aside invoking the revisional jurisdiction?
ii) Whether the claim under Section 11(4)(i) can pass the test of bona fides of the claim under Section 11.(10)?
iii) Is this Court bound to consider the challenge raised against the rejection of the claim under Section 11 (2) now in this Rent Control revision petition. Or, to put it in other words, can the order of eviction under Section 11(4)(i) be supported by the unchallenged and rejected ground under Section 11(2)?
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As on issues (ii) and (iii), we think the matter deserves reference to a Full Bench, we are not proceeding to consider issue No. i raised above in detail. We intend to make a reference of the entire case and not the two latter questions of law alone. It is, in these circumstances, that we do not delve deeper into issue No. i raised above. We need only mention that if we were not satisfied with the said finding of the appellate authority, we would not have thought it necessary to make the reference at all.
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That takes us to the two general questions of law raised in paragraph (1) which are relevant in issues (ii) and (iii) raised in this revision petition.
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Question No. i): It will be apposite straight away to refer to the scheme of the Act. Section 11(1) speaks about eviction of tenants. A tenant cannot be evicted except in accordance with the provisions of this Act and that is declared under Section 11(1). Thereafter the grounds for eviction are specified. We then take note of Section in its entirety.
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We have sections 11(2), 11(3),- 11(4), 11(7) and 11(8) which deal with circumstances under which a landlord may apply for eviction. We shall straight away note that Sections 11 (5) and 11 (6) together deal not with any order of eviction as such. An order of eviction stricto senso is not contemplated under Sections 11(5) and 11(6). Sections 11 (5) and 11 (6) only enable a landlord to apply for, and the Rent Control Court to grant, an order "directing the tenant to permit the landlord to enter and earn' out the renovation of the tenanted premises". We therefore take the view that clauses (5) and (6) do not strictly deal with any order of eviction. Section 11(2) deals with eviction on the ground of arrears of rent. Section 11(3) deals with eviction on the ground of the bona fide need for the occupation of the landlord or any member of his family depending on him. Section 11(4) specifically deals with 5 eventualities in which the landlord is entitled to apply for eviction. Sub clauses (i) to (v) deal with five such instances where the landlord can apply for eviction. Section 11(7) deals with the option of a landlord which is a religious, charitable, educational or public institution to apply to evict the tenant if the building is needed for the purpose of the institution. Section 11 (8) deals with the right of the landlord occupying only part of a building to apply for eviction of the tenant occupying the whole or portion of the remaining part of the building, if he requires additional accommodation for his personal use. Thus, we find that Section 11 provides for 9 instances where the landlord can apply to the Rent Control Court to get a tenant evicted.
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It will be apposite now to note that each ground of eviction is different and distinct ill itself. The circumstances/requirements which entitle a landlord to claim eviction are different and are enumerated in detail under each of these 9 clauses. It will be pertinent straight away to note that the procedures to be adopted are also different. The mandatory pre-requisites are different. For example, in a claim under Sections 11(2) and 11(4)(i) prior notice is insisted in certain eventualities, whereas such notice is not insisted when the claim for eviction is staked under other clauses of Section 11. When eviction is claimed under Section 11 (3), provisos peculiar to 11 (3) have to be satisfied. The provisos and conditions are peculiar to each of these sub sections and the landlord is bound to prove, when he stakes a claim under one of the sub-sections, the peculiar requirements of the relevant sub-section.
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It will be apposite straight away to note that the consequences are also entirely different. When an order of eviction is passed under Section ll(2)(b), it is liable to be vacated when deposit is made as contemplated under Section 11 (2)(c). The consequences following eviction tinder Section 11 (3) are also different, in that, the tenant can claim to be put back in possession if the landlord does not occupy the building (See section 11(12)). Similarly all the five instances of eviction under Section 11(4)(i) to 11(4)(v) do also demand and require proof of peculiar facts. Procedures to be followed are also different. Consequence of the order of eviction under these subsections do also vary. So is the situation so far as claims under Sections 11 (7) and 11 (8) are concerned.
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The legislature, after enumerating the various grounds for eviction (9 grounds) under Sections 11(2), 11(3), 11 (4), 11(7) and 11(8) insists in sub Section 10 that when it comes to claims under sub-sections 3,4,7 and 8, that the claim must be bona fide. The Rent Control Court must be satisfied that the claim of the landlord under Sections 11 (3), 11 (4), 11 (7) and 11 (8) is bona fide. The learned counsel for the petitioner contends that Section 11(10) has a salutary object. It is not enough if the ground of eviction under the relevant sub-section is established. After establishing the peculiar grounds enumerated in the various sub-sections, the court must further be satisfied that the claim of the landlord is also bona fide. It is not sufficient if the ground under the relevant sub-section is technically established. The claim must also pass the test of bona fides. This is what the plain language of Section 11(10) insists, contends counsel for the tenant.
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To us, it appears that the scheme of the Act is very...
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