Kathringa vs Lonappan and others

V. Balakrishna Eradi, J.—The petitioner who was in occupation of a building in ward No. II of the Trichur Municipality as a tenant on a monthly rent of Rs. 15 was sought to be evicted therefrom at the instance of the 1st respondent who had become the owner of the building by virtue of a transaction of assignment dated 1.12.1962. The proceeding for eviction was instituted by the 1st respondent before the Rent Control Court. Trichur as R.C.P. No. 42 of 1963 on 11.6.1963 on the ground that he needed the building bona fide for his own occupation. In defence of the aforesaid application the petitioner had contended in her counter-statement that the contract rent was only Rs. 7.50 per month, that she had been in continuous occupation for over 33 years and as such was not liable to be evicted therefrom, that the allegation put forward by the landlord that he needed the building bona fide for his own occupation was not true, that in any event the trade conducted by the petitioner on the premises was her sole means of livelihood and that therefore she should be protected from eviction in as much as she would be deprived of her means of subsistence as a result of her being directed to vacate the building. At the stage of arguments a further contention was raised by the tenant that the proceeding for eviction was not maintainable in view of the specific provision contained in proviso 3 to section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 since the requisite period of one year had not expired from the date of purchase of the premises by the petitioning landlord. The rent control court overruled the objection raised by the tenant regarding the maintainability of the petition and upheld the contention of the landlord that the building was required bona fide for his own occupation. It further held that the income from the trade conducted on the premises by the tenant was not her sole means of subsistence and that therefore she was not entitled to protection from eviction under the second proviso to sec. 11 (3) of the Act. Accordingly by the order Ex. P1 dated the 23rd February 1965, the Rent Controller ordered the eviction of the tenant granting her time till 1.4.1965 to vacate the premises. Against the aforesaid decision the tenant preferred an appeal before the Subordinate Judge of Trichur but by his judgment evidenced by Ex. P2 dated 28.2.1966 the appellate authority confirmed the decision of the Rent Controller. A further revision petition preferred by the tenant before the District Judge. Trichur also did not meet with any success. Hence the tenant has come forward with this original petition to quash the orders of the Rent Controller, the appellate authority and the District Judge evidenced by Ex.P1, P2 and P3 respectively. Although originally this petition was filed invoking both under Articles 226 and 227 of the Constitution, in view of the recent Full Bench decision of this court holding that that the District Judge while exercising his revisional jurisdiction u/s 20 of the Act functions as a court and since no application for a writ of certiorari can be maintained as against the decision of a subordinate court, counsel for the petitioner has prayed for relief under Article 227 only.

The main point urged before me by the learned counsel for the petitioner is that the view taken by the three subordinate tribunals that an order for eviction of the tenant could be passed on the petition filed by the landlord before the expiry of the period of one year from the date of the instrument of transfer inter vivos in his favour on the ground that by the time the application came up for disposal before the Rent Controller the aforesaid period of one year had expired, is erroneous and unsustainable in law. It was very strongly contended that in view of the specific provision contained in the third proviso to Section 11(3) there was no proper application at ail before the Rent Control Court on which any valid order for eviction could have been passed by it and that the mere circumstance that the period of one year during which the landlord was incompetent to make the application has expired by the date on which the matter came up for disposal before the Rent Control Court, would not make any difference whatever is the legal position as regards the maintainability of the application. Reliance was placed by the learned counsel on the decision of this court reported in Themmalapuram Bus Transport. Palghat v. Regional Transport Authority, Palghat 1967 KLT 122 F(FB), 1967 KLJ 139 where it has been pointed out that it is the ordinary rule that the rights of parties must be determined as on the date of the action and not on the basis of rights which accrued to them after the institution of the proceedings.

In the case before me the proceedings for eviction was instituted by the landlord on 11.6.1963. He had acquired title to the building by reason of a transaction by purchase dated 1.12.1962. Thus, on the date of the institution of the proceedings the requisite period of one year had not elapsed so as to satisfy the requirements of the third proviso to section 11(3) of the Act. It is, however, significant that no objection had been taken by the tenant to the maintainability of the application in the counter-statement filed by her and it was only during the arguments before the Rent Control court that such objection was raised by her for the first time. The case came on for hearing on 19.2.1965 by which date more than two years and three months had elapsed after the transaction of purchase. The question is whether it was legally open to the Rent Controller to take note of the subsequent event and pass an order of eviction on that basis or whether it was incumbent on him to reject the petition and drive the landlord to file a fresh proceeding. As has been pointed out by the Full Bench in the decision already cited (1967 KLT 122) there is a discretion vested in the court to depart from the general rule that the rights of parties must be determined as on the date of the institution of the action in justifiable circumstances provided such departure will not have the effect of conferring any manifest advantage or disadvantage to either party. Thus, it is not as if there is an absolute, rigid or inflexible rule that under no circumstances the court should take into account subsequent events in determining the rights of parties pending adjudication before it. If there is no manifest injustice resulting therefrom, but on the other hand such course would advance the cause of justice and prevent unnecessary multiplicity of actions, there is ample jurisdiction vested in the court to take note of relevant subsequent events in deciding a case and moulding the relief to be granted. In Ayyan Krishnan v. Kunhikutty Amma Lekshmikutty Amma, 1966 K. L. T. 402, a Division Bench of the Travancore Cochin High Court consisting of Chief Justice Koshi and Justice Nandana Menon had occasion to consider the question whether the court would be right in granting to the plaintiff mortgagor a decree for redemption of a mortgage in a suit instituted prior to the expiry of the term of the mortgage taking note of the fact that during the pendency of the action the term had expired and the mortgagor had become entitled to claim eviction. The Division Bench took the view that this could be done following a decision of the Calcutta High Court reported in Tarak Chandra Das v. Anukul Chandra Mukherjee, AIR 1946 Cal 118, and held that in case where no justice would result by granting a decree on the basis of a cause of action that arose during the pendency of the appeal the appellate court can exercise its discretion to take note of that subsequent event and grant a decree to the plaintiff. It may be noticed that the subsequent event, namely the accrual of cause of action took place not even during the pendency of the suit before the trial court but only during the pendency of the appeal before the first appellate court. Nevertheless, their Lordships held that the court had jurisdiction to allow redemption without driving the plaintiff to a fresh suit in that behalf, because that would serve the purpose of doing complete justice to the parties and of avoiding unnecessary further litigation. I am in respectful agreement with the above principle laid down by the Division Bench. It has, therefore, only to be considered whether any manifest injustice did result to the petitioner (tenant) by the reason of the Rent Control Court having taken note of the subsequent event, namely the expiry of the one year''s period by the date on which the proceedings came up for disposal before the Rent Control Court. It is admitted that there was absolutely no legal bar either by way of limitation or otherwise precluding the landlord from instituting a fresh petition for eviction as on the date when the Rent Control Court took up the proceedings for disposal. I do not therefore see any legal prejudice that can be said to have been caused to the tenant on account of the subsequent event having been taken due note of the Rent Controller, unless it be said to consist of the failure on the part of the Rent Control Court to fully enforce the technical rigour of the proviso by calling upon the landlord to formally put in another petition and disposing it of probably on the same date. On the other hand the course adopted by the Rent Control Court has only served the cause of preventing unnecessary multiplication of actions. I would, therefore, hold that the authorities below were right in holding that an order for eviction could be passed on the pending proceeding itself taking note of the fact that the landlord''s right to evict had accrued during the pendency of the proceeding before the Rent Control Court. The only other contention that has been urged before me is with respect to the correctness of the finding entered by the District Judge that the second proviso to Section 11 (3) is not attracted in this case. This being a pure finding of fact and all the three authorities having concurrently held against the petitioner I do not see my way to interfere with the same under Article 227 of the Constitution.

Counsel appearing for the landlord has very firly stated that his client is agreeable to give six months'' time from today to the petitioner to vacate and surrender possession of the premises and that the execution proceedings may be kept in abeyance for the aforesaid period, provided the petitioner deposits on or before the 2nd January 1969 all the arrears of rent inclusive of the rent for December 1968 and continues to deposit thereafter before the 10th of each succeeding month the rent due for the immediately previous month. This representation is recorded. It is made clear that in case any default is committed by the tenant either in making the initial deposit to be made on the 2nd January, 1969 or any of the subsequent deposits on the due dates, the landlord will be free to execute the order for eviction without waiting for the expiry of the six months'' period. Subject to the above, the original petition is dismissed. I direct the parties to bear their respective costs.