Dr Dilip Joseph Thottachery vs Sabeena Latheef

P.G. Ajithkumar, J

The common order dated 27.07.2021 of the Rent Control Court (Munsiff), Changanassery in Interlocutory Application No. 1 of 2020 in each of R.C.O.P.Nos. 11 to 24 and 27 to 29 of 2019 is under challenge in this Original Petition filed under Article 227 of the Constitution of India.

The petitioner filed those interlocutory applications seeking an order directing joint trial of all those rent control petitions. The petitioner is the common landlord. The respondents are the tenants in the respective petition schedule shop rooms. The rent control petitions were filed seeking eviction under Section 11(3) of the Act. All the rooms form part of the same building. The grounds for eviction and also the defence of the respondents are similar. Therefore, the evidence to be let in all the cases would be identical. Pointing out those circumstances, the petitioner sought to order a joint trial.

The Rent Control Court dismissed the interlocutory applications, essentially for the reasons noted in paragraph Nos.25, 26 and 27 in the impugned order, which is extracted below:

“25. On perusal of the entire records, I find that, there is much force in the contention of the respondents that respondents in all the cases are different, and cross examination of the petitioner is to be done by all the 17 respondents and evidence is to be adduced by all the 17 respondents. Hence even if joint trial is conducted, it is having no effect at all as the contentions of each 17 respondents are to be considered differently.

In the said circumstances, I find that, joint trial of all the petitions will cause incalculable prejudice and damages to the respondents in this case. In the above said circumstances, joint trial of all these cases would embarrass and delay the trial of all the 17 cases. As the different tenants have different contentions, I find that, it is better to conduct separate trials of all the cases and not to have recourse to the exceptions provided for holding of joint trial. If the joint trial petition is allowed, the objections raised and the evidence adduced in the case will be adversely affected and it will cause prejudice to the respondents. For all the above said reasons, I find that, this petition as to joint trial is not allowable.

27 Further I find that, the respondents in RCOP No. 11/2019. RCOP No.12/2019, RCOP No. 14/2019, RCOP No. 15/2019. RCOP No.16/2019, RCOP No.18/2019, RCOP No 20/2019. RCOP No. 21/2019, RCOP No.22/2019, RCOP No.23/2019, RCOP No. 24/2019, RCOP No.27/2019, RCOP No.28/2019 and RCOP No.29/2019, denied the landlord tenant relationship, and contended that petitioner has not produced any document for proving his title over the scheduled building. Hence this court has to decide, whether the denial of title of petitioner is a bonafide one, and is to be proceeded accordingly. Accordingly, these petitions are not ripe for trial. In RCOP No. 13/2019. RCOP No.17/2019, and RCOP No.19/2019, objections are filed by the respondents and are ripe for trial. For that reason also, if the joint trial of all the 17 Rent Control Petitions are allowed, that will cause much delay in the disposal of the cases.

Filing of a single Original Petition for challenging orders of the Rent Control Court in interlocutory applications in seventeen rent control petitions was objected to. Going by the strict rule principle, it has to be said that separate Original Petitions should have been filed. By impleading respondents in every interlocutory application, the Original Petition has been filed. Separate court fees to challenge each of the said orders has been paid as well. Thus, there is no question of non-joinder of necessary parties or non-payment of requisite court fees. The rest is a matter of convenience. All the respondents were given notice. Therefore, there will not be any prejudice to any of the parties by proceeding with this Original Petition. In the circumstances, we hold that this Original Petition is maintainable.

On 24.11.2021, notice was ordered to all the respondents. Further proceedings in the rent control petitions were ordered to be deferred as per order dated 02.12.2021.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

The learned counsel appearing for the petitioner would submit that in all the rent control petitions evidence to be adduced on the side of the petitioner is the same. The only difference may be to bring on record additional evidence required to meet the defence set out by two sets of the respondents. In one set of rent control petitions the tenants raised a contention disputing title of the petitioner to the tenanted premises in their possession. That apart, the defence set out by all the tenants is common. Of course, for claiming the benefit of the second proviso to Section 11(3) of the Act, different facts are pleaded. The learned counsel for the petitioner would submit that in the aforesaid circumstances, a single trial is expedient in the interest of justice. In the view of the learned counsel such a joint trial will help to avoid delay, repetitive evidence and conflicting decisions.

The learned counsel appearing for respondent Nos.1, 2, 4, 6, 8, 10, 12, 13 and 14, on the other hand, would contend that the joint trial in the cases would be most inconvenient and a cumbersome process. In view of the differential contentions raised by the tenants in each of the cases, if a joint trial is conducted, that will definitely cause prejudice to the contesting tenants. If some procedural handicaps occurs in one case or the other, the trial of all cases will altogether be hampered. In the said circumstances, the request for joint trial was rightly refused by the Rent Control Court. The learned counsel therefore sought to dismiss the Original Petition.

The learned counsel appearing for respondent Nos.11, 15, 16 and 17 would submit that the nature of contentions in various rent control petitions is totally different and multifarious. Such mutually exclusive and even conflicting contentions set forth by the tenants would not permit a joint trial in these rent control petitions. The learned counsel invited our attention to the decisions of this Court in Ibrayan v. Balan [1985 KLT 896], Gouthami v. Indira Kunjamma [1994 (1) KLT SN 34], Narayan Murti v. Thankamma Sebastian [2005 (3) KLT 102], Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250 (FB)], Retheesh Chandran A.R. v. Sarojini Amma (2011 (1) KLJ 165], Aravindaksha Menon v. Ali Akbar and another [2011 (2) KLT 121], Mariamma v. Chinnamma John [2015 (2) KLT 521], Khadeeja and others v. Haris Haji v. [2019 (3) KHC 527] and Satheesh Kumar and another v. K.Balasubramanian [2021 (2) KHC 483] and the decision of the Apex Court in Bhogadi Kannababu and others v. Vuggina Pydamma and others [(2006) 5 SCC 532].

The principle for which the learned counsel placed reliance on the above said decisions is that when the landlord-tenant relationship is denied by the tenant in a petition filed under Section 11 of the Act, the Rent Control Court is obliged to enquire into and decide the bona fides of the said contentions. Once it is found that the denial of the title is bona fide, the Rent Control Court loses jurisdiction to proceed with further. What shall be the nature of enquiry and in what manner the further actions to be taken on conclusion of such enquiry are dealt with in the aforesaid decisions. The said principle has no application to decide this Original Petition in which the question to be considered is only whether a joint trial of the rent control petitions can be allowed in the interest of justice and for the convenience of the parties.

Of course, some of the respondents raised a contention denying the title of the landlord. It is for the Rent Control Court to enquire into and decide on that aspect at appropriate time in an appropriate manner. Therefore, the said decisions do not require detailed consideration in this matter.

The concern of the respondents is that if a joint trial is held, it would cause prejudice to them. Moreover, such a joint trial will not be convenient, on the other hand, it would be cumbersome and overlapping. In this respect, we shall immediately refer to the view expressed by this Court in Muhammed Salim v. Habeeb and Company [2002 (2) KLT 93]. A joint trial of five cases, all filed for eviction on a common ground, under Section 11(4)(iv) of the Act was in question there. This Court held that “evidence of the landlord will be the same in all these matters. Of course, during a joint trial, each tenant can cross examine the witnesses of the landlord. It is true that in some cases other grounds are also taken by the landlord. In that, he has to adduce evidence. Tenants also will be free to adduce evidence on each specific grounds urged against them. No prejudice will be caused to the respondent by a joint trial.

In Abdul Azeez v. Sankaran [2002 (1) KLT 613], in a petition filed under Article 227 of the Constitution, this Court held that the Rent Control Court has inherent powers to direct joint trial of cases in the interest of justice where issues involved are the same.

In Sasidharan v. Saroja [2002 (2) KLT 885], this Court had occasion to consider legality of a situation where appeals arose on three rent control petitions which were tried and disposed of separately by the Rent Control Court, were decided by the Appellate Authority as per a common judgment. This Court held that in such an exercise, evidence in one case happened to be considered in the other cases and in that process, evidence recorded in the absence of a party would be used to render a decision against that party. Such a process was held to be invalid and illegal. The Court held as follows:

“7. xx xx xx We may indicate that parties had no opportunity to cross-examine the witnesses in the three cases which were tried independently. They had no opportunity to peruse the documents produced in other cases. Such a procedure in our view would cause prejudice to the parties. Since we have found that the Appellate Authority has committed a mistake in clubbing all the appeals and relying on the evidence in one case for deciding another, we are inclined to set aside the common order passed by the Appellate Authority and remand the matter back to the Appellate Authority for fresh consideration. Since joint trial was refused each case has to be decided independently on the basis of the evidence adduced in each case.”

In Mohammed Salim (supra) this Court further held as regards difficulties that may occur if joint trial is not held in several petitions filed by a common landlord for eviction on a common ground as follows:

“9. xx xx xx If joint trial application is not allowed, it may lead to injustice in multiplication of evidence, chance of conflicting findings, delay in disposal of matters, inconvenience to Court, difficulties not only to the landlord but also to the tenants (as reallocation of reconstructed building, etc. has to be considered vis-a-vis all tenants).”

In the light of what is referred to above, we are of the view that the trial of R.C.O.P.Nos.11 to 24 and 27 to 29 of 2019 before the Rent Control Court, Changanassery, can be held jointly. Of course while doing so, the Rent Control Court has to take care to protect the interests of every party. There shall not be any denial of opportunity. The Rent Control Court should be cautious not to get the evidence overlapped and duplicated. In order to ensure those aspects, the Rent Control Court, while holding joint trial, shall follow the following:

i) It shall be ensured that the chief-examination (whether oral or affidavit in lieu of chief-examination) of the petitioner-landlord shall state his case in support of his plea of eviction which shall be followed by evidence to answer the defence of each of the tenants in separate paragraphs with captions. If any exhibit is proposed to be proved with reference to the defence of any particular tenant, that fact, shall specifically be stated under the relevant caption.

ii) Each of the tenants shall be afforded with opportunity to cross-examine the witnesses of the landlord. Since petitioner's evidence with reference to the defence of each of the tenants would be stated separately in the chief-examination, the Rent Control Court can conveniently regulate the cross-examination. It will be convenient for the counsel of the tenants concerned to concentrate on the relevant part of the chief-examination alone to have his cross-examination.

iii) Since there is a contention of denial of title, it is for the Rent Control Court to decide whether or not the same is to be decided as a preliminary point.

The Original Petition is allowed in the aforesaid terms.