Krishna Iyer vs Abdul Rasheed

K.T. Sankaran, J.—The questions involved in these revisions are:

i. Whether the Rent Control Court has inherent power to order joint trial of two or more Rent Control Petitions filed under the provisions of the Kerala Buildings (Lease and Rent Control) Act?

ii. Whether a party who did not raise any objection when two Rent Control Petitions were tried jointly before the Rent Control Court, can raise such objection in appeal or revision?

The revision petitioner filed Rent Control Petition No. 38 of 2010 against one Abdul Rasheed under Ss. 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the "Act"). The same landlord filed Rent Control Petition No. 39 of 2010 against another tenant, namely, Narayanan, under S. 11(3) of the Act. The landlord conducts wholesale business in tobacco in one of the rooms in the building. The adjacent room is in the occupation of Abdul Rasheed, the respondent in R.C.P. No. 38 of 2010. Another room in the building is in the occupation of Narayanan, the tenant in R.C.P. No. 39 of 2010. The landlord stated that he bona fide requires the building involved in R.C.P. No. 38 of 2010, for his additional accommodation. The landlord stated that his two sons are helping him in his tobacco business and that the space available in his occupation is not sufficient for storing tobacco during particular seasons. The need put forward in Rent Control Petition No. 39 of 2010 is that the two sons of the landlord want to conduct business in confectionery items in the room in the occupation of Narayanan.

The landlord filed I.A. No. 38 of 2011 in R.C.P. No. 39 of 2010 for joint trial of both the Rent Control Petitions. The respondent in I.A. No. 38 of 2011 is the respondent in R.C.P. No. 39 of 2010. Copy of the application for joint trial was served on the respondent in that application as well as the tenant in R.C.P. No. 38 of 2010. The Rent Control Court allowed the application for joint trial. The two Rent Control Petitions were jointly tried and they were disposed of by a common order by the Rent Control Court. R.C.P. No. 38 of 2010 was allowed under S. 11(8) and R.C.P. No. 39 of 2010 was allowed under S. 11(3) of the Act.

Challenging the common order passed by the Rent Control Court, the respective tenants filed Rent Control Appeal Nos. 49 of 2011 and 53 of 2011 before the Rent Control Appellate Authority, Palakkad. The Appellate Authority allowed the appeals and remanded the Rent Control Petitions to the Rent Control Court for fresh disposal, with a direction to try the Rent Control Petitions separately. It was held by the Appellate Authority that the Rent Control Court was not right in trying the Rent Control Petitions jointly. The Appellate Authority mainly relied on the decision of this Court in M. Sasidharan and Others Vs. Saroja, and held that the parties in one case had no opportunity to peruse the documents produced in the other case and thus prejudice was caused to them. It was also held by the Appellate Authority, relying on Ebrahim Ismail Kunju and Another Vs. Phasila Beevi, , that the mere fact that all the rooms are situated in the same building would not justify a joint trial of the cases in respect of those rooms.

The learned counsel for the petitioner/landlord submitted that the Rent Control Court has inherent power to order joint trial of two or more cases. He submitted that it is in the realm of discretion of the Rent Control Court and the discretion may be exercised in the facts and circumstances of each case. The learned counsel for the petitioner also submitted that the tenants did not raise any objection before the Rent Control Court against the prayer made by the landlord for joint trial. The tenants participated in the trial without any objection. It is also submitted that even in the Memorandum of Appeal filed before the Appellate Authority, the tenants have not raised any contention that the joint trial was illegal or that it caused prejudice to them.

The learned counsel appearing for the respondents submitted that joint trial of the cases caused prejudice to the tenants. It is also submitted that when the grounds raised in the Rent Control Petitions are district and different and the facts to be proved in support of those grounds are different, the Rent Control Court would not be justified in trying the cases jointly. The learned counsel submitted that the bona fide need to be proved under S. 11(3) is quite distinct and different from the requirement to be proved under S. 11(8) of the Act. In a case under S. 11(8) of the Act, apart from the requirement being bona fide, the court has to also assess the comparative hardship as provided under the first proviso to S. 11(10) of the Act A joint trial of such cases would cause inconvenience to the parties, facts may overlap to the prejudice of the tenants and they will have to face the inconvenience of certain facts being proved against them, not in the case in which they are parties, but in the other connected cases.

We shall first answer the question whether the Rent Control Court has inherent power to order joint trial of two or more cases. There is no provision in the Act for joint trial. There is no provision in the Code of Civil Procedure also specifically providing for joint trial of two or more suits. It is well settled that S. 151 of the Code of Civil Procedure would enable the Civil Court to order joint trial of two or more suits.

In Mohan, K. Vs. Jayaprakash, K.H., ,a Division Bench of this Court held, after considering the scope and ambit of S. 23(1) of the Act, that the Rent Control Court has inherent power to allow an application to add an additional respondent in the Rent Control Petition. In Cheru Ouseph Vs. Kunjipathumma, , while considering the question whether the Rent Control Court has jurisdiction to restore a Rent Control Petition which was dismissed for default, it was held thus:

"12. What, after all, is the inherent power saved by S. 151 of the Code of Civil Procedure? A court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the court must have jurisdiction over the proceedings before it can exercise the inherent power; but when that is granted, its power to advance he cause of justice by relying on unremunerated powers - on inherent or residuary power, is it is often called - cannot be denied to it. And therefore, where a Tribunal exercises the same kind of power i.e., part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuary powers? If you do not like the name, call it by another; but so long as the Tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice....................

I would therefore say, as indicated by the Supreme Court in Dhani Devi Vs. Sant Bihari and Others, , that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function."

In Abdulla v. Rent Controller (1984 KLT 865), it was held that the Rent Control Court has power to order amendment of a Rent Control Petition. The same view was taken in Ramanath Haneefa Vs. Hamsa, : Ramanath Haneefa Vs. Hamsa, .

In Kadamkothu Valappil Sreedharan Vs. Keereerakath Muhammed Kunhi, a Division Bench of this Court held that the Rent Control Court has power to enlarge the time granted for deposit of arrears, even after the expiry of the period originally granted.

The provisions of S. 151 of the Code of Civil Procedure make it clear that the inherent powers are not controlled by the provisions of the Code. The inherent powers of the court are in addition to the powers specifically conferred by the Code of Civil Procedure. The inherent powers are complementary to the powers specifically conferred. The court can exercise the inherent powers when it would not, in any way, be in conflict with what has been specifically provided in the Code. The inherent powers under S. 151 of the Code of Civil Procedure are with respect to the procedure to be followed by the court in deciding the cause before it. It cannot be held that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power is a power inherent in the court by virtue of its duty to do justice between the parties before it. (See Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , Padam Sen and Another Vs. The State of Uttar Pradesh, , Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, and Arjun Singh Vs. Mohindra Kumar and Others, .

It is true that there is no provision in the Act saving the inherent power of the Rent Control Court as is available in S. 151 of the Code of Civil Procedure. That does not mean that the Rent Control Court has no power to pass orders which are not specifically covered by the provisions in S. 23 of the Act. S. 23 of the Act provides for certain powers enumerated therein and which are vested in a court under the Code of Civil Procedure. S. 23 of the Act would not be a bar for the Rent Control Court to exercise any other power which a civil court exercises under the Code of Civil Procedure, provided the facts and circumstances warrant the exercise of such power and it does not offend the Act and the Rules. The power to do justice between the parties and to dispose of a Rent Control Petition in accordance with law, would certainly confer certain inherent powers on the Rent Control Court. If the Rent Control Court finds that, to avoid conflicting decisions or to avoid delay in disposal of matters or to avoid inconvenience to the parties or to secure the ends of justice, a joint trial of two or more Rent Control Petitions is required, nothing in the Act prevents the Rent Control Court from exercising such power.

In Ebrahim Ismail Kunju and Another Vs. Phasila Beevi, , a Division Bench of this Court held that the fact that two proceedings are not of a like nature would be a valid and vital factor for declining consolidation of two or more proceedings. It was also held that the fact that the rooms occupied by different tenants are in the same building may not be a ground for ordering joint trial. As to whether an order for joint trial is justified in the circumstances, has to be determined with due advertence to the rights and obligations of the parties to the litigation and the effective and smooth functioning of the Tribunal itself. In Mohammed Salim v. Habeeb & Company (2002 (2) KLT 93) and Ebrahim Ismail Kunju''s case (supra), it was held that every application for joint trial has to be decided on its own merit. In Mohamed Salim''s case (supra), wherein a joint application was filed for eviction of several tenants occupying the rooms in the same building owned by the same landlord on the ground of reconstruction under S. 11(4)(iv), the Division Bench held thus:

"Therefore, evidence of the landlord will be the same in all these matters. Of-course, during 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 in defence on each specific grounds urged against them. No prejudice is caused to the respondent by joint trial."

In Sulthan and Others Vs. Mohanan and Others, , a single Rent Control Petition was filed for eviction of different tenants under S. 11(4)(iv) of the Act. Though the tenants raised the question of maintainability of a single application before the Rent Control Court in their pleadings, they did not pursue that contention and no adjudication on that question was sought for from the Rent Control Court. But the tenants raised a contention before the Appellate Authority that a single application for eviction of different sets of tenants was not maintainable. The Division Bench held that the objection as to misjoinder of cause of action or the question of maintainability ought to have been taken before the Rent Control Court and the tenants are not entitled to put forward a contention on that point, for the first time, before the Appellate Authority or before the Revisional Court.

In Jamal Vs. Safia Beevi, , a Full Bench of this Court considered the question whether the landlord can unite different causes of action against different tenants in a single Rent Control Petition and held thus:

"We therefore answer the questions as follows:

(i) Landlord can unite several causes of action against single tenant if he is occupying the same building in the event of which there will not be misjoinder of causes of actions and misjoinder of parties since tenant is single tenant occupying the same structure.

(ii) Landlord can prefer an application under S. 11(4)(iv) against various tenants who are occupying distinct portions of the same structure since the tenants are jointly interested in the causes of action and the defence available to all the tenants would be by and large common and hence there will not be any misjoinder of causes of actions or misjoinder of parties.

(iii) Landlord cannot unite different causes action in a single petition filed against various tenants whether they are in occupation of same building or different building. Such a petition would be bad for misjoinder of causes of actions and misjoinder of parties.

(iv) Objection as to the misjoinder of causes of actions and misjoinder of parties should be taken at the earliest opportunity; failing which Court would not interfere unless it is shown that serious prejudice has been caused to the parties.

(v) Rent Control Court can consolidate the applications for eviction if there are similarity or identity of the matters in issue in the petitions which is to be left to the discretion of the Rent Control Court, depending upon the facts and circumstances of each case."

In Sasikumar Vs. Sheeba, following the Full Bench decision in Jamal''s case (supra), it was held that in the case of a single Rent Control Petition filed against two tenants under S. 11(3) of the Act, the objection regarding misjoinder or non-maintainability should be raised at the first opportunity before the Rent Control Court. Such an objection cannot be entertained for the first time in revision.

In Akbar Ali Vs. Narayanankutty, , eight Rent Control Petitions filed by the same landlord against different tenants under S. 11(3) of the Act, were jointly tried and a common order of eviction was passed. No objection was raised before the Rent Control Court against joint trial. Such an objection was raised only in the revision before the High Court. The Division Bench held that such an objection cannot be entertained for the first time in the revision.

In Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, the Hon''ble Supreme Court considered the procedure in the case of joint trial and held thus:

"The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from S. 151 of the C.P.C. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarly of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits."

In Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria, , the Hon''ble Supreme Court held, with reference to joint trial, thus:

"18. It cannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where mere are two or more matters or causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury''s Laws of England, Vol. 37, para 69). If mere is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit."

Joint trial of two or more Rent Control Petitions and the case of a single Rent Control Petition being filed against different tenants, do not stand on the same footing. If the facts to be proved, documents to be produced, the points to be decided and the oral evidence to be adduced are common in two or more Rent Control Petitions, and if no prejudice would be caused to the parties to the Rent Control Petitions, the Rent Control Court may, in appropriate cases, exercise the discretion to order joint trial of those cases. Even in a situation where there would be misjoinder of causes of action if a single Rent Control Petition is filed against different tenants, in such a case, if separate Rent Control Petitions are filed against the tenants, the court may order joint trial of those cases, provided the facts and circumstances justify such joint trial. The parameters to be applied in considering the question of misjoinder of causes of action or maintainability of a single Rent Control Petition against different tenants are not quite the same as considering the question whether two or more Rent Control Petitions filed by the same landlord against different tenants could be jointly tried. The tenants in the present case did not raise any objection against joint trial at the time when I.A. No. 38 of 2011 was filed or at any time thereafter. They never put forward any contention that any prejudice was caused to them by jointly trying the two Rent Control Petitions. The tenants even did not raise any ground in the Memorandum of Appeal that any prejudice was caused to them due to the joint trial of the two Rent Control Petitions. The objection was raised only at the time of arguments in the Rent Control Appeals. On the basis of the principles of law mentioned above, we are of the view that the Appellate Authority was not justified in entertaining such a belated objection and ordering separate trials in cases where trial was already held and the entire evidence was recorded. Even before this Court, the tenants could not demonstrate how prejudice was caused to them or what prejudice was caused to them. The documentary evidence before the Rent Control Court consists on Exts. A1 to A11, copies of some of which were given to both the tenants. Documents of which copy was not given to one or the other tenants were only lawyer notices and reply notices which related to the individual tenants. It is also relevant to note that when the Commissioner appointed in R.C.P. No. 39 of 2010 inspected the building, the tenant in R.C.P. No. 38 of 2010 was also present. On going through the pleadings, we find that several contentions touching upon the bona fide need under S. 11(3) of the Act and the requirement under S. 11(8) of the Act are intrinsically connected with each other. We do not find that any prejudice was caused to the tenants by the joint trial of the Rent Control Petitions. If separate trials as directed by the Appellate Authority were to take place, much prejudice would be caused to the landlord and it would be a waste of judicial time with no benefit to anybody.

For the aforesaid reasons, we allow the Rent Control Revisions and set aside the judgment of the Appellate Authority. The Appellate Authority shall dispose of the Rent Control Appeals on the merits.