Kumaran Nair vs Damodaran Nair

K.P. Radhakrishna Menon, J.—The respondent in a petition u/s 11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, for short the Act, is the petitioner. Before the Rent Control Court the petitioner raised the contention that he is a kudikidappukaran The Rent Control Court therefore referred the question to the Land Tribunal and the Land Tribunal by order dated 28-6-1978, found that the petitioner is not a kudikidappukaran.

The Rent Control Court thereafter went into the merits of the case and found that the respondent was entitled to recover possession of the building on the ground of bona fide need and accordingly ordered eviction. In the appeal the appellate authority held that the finding of the Land Tribunal requires reconsideration and accordingly remanded the matter to the Rent Control court for a denovo trial.

Aggrieved by the said order of remand, the respondent-landlord filed a revision before the District Court, Kozhikode. The learned District Judge went into the question elaborately and held that the finding of the Land Tribunal that the petitioner is not a kudikidappukaran, is unassailable. The learned District Judge also found that inasmuch as the petitioner has already availed of the rights conferred on a tenant under the Rent Control Act he shall not be permitted to take advantage of the K. L. R. Act and contend for the position that he is a kudikidappukaran. The District Judge accordingly allowed the revision and restored the order of the Rent Control Court.

The Civil Revision Petition is filed against the said order of the learned District Judge.

The learned counsel for the petitioner submits that unless the respective provisions recognising the rights of the tenants under the Rent Control Act and the Kerala Land Reforms Act are mutually exclusive, there cannot be any bar in a person claiming tenancy right either under the Rent Control Act or under the Kerala Land Reforms Act or under both. The learned counsel therefore submits that neither the doctrine of estoppel nor the doctrine of waiver nor the doctrine of election can be pressed into service to defeat the right of the petitioner to claim the kudikidappu right conferred on him under the Kerala Land Reforms Act.

The question whether the petitioner could also avail of the beneficial provisions of the K. L. R. Act and assert the right of a kudikidappukaran, can be answered only if we understand the scope of the two statutes namely, the Rent Control Act and the K L. R. Act mentioned above. I shall in this connection first refer to the relevant provisions of the Rent Control Act. Section 17 (2) of the Rent Control Act provides that in case a landlord fails to attend to such maintenance or repairs to the buildings and amenities thereto within a reasonable time after notice, the Accommodation Controller is competent to direct, on application by the tenant, that such maintenance and repairs can be attended to by the tenant and the charges and the cost thereof can be deducted with interest at six percent per annum from the rent which is payable by him. Under the K. L. R. Act however, the position is different. u/s 79 of the K. L. R. Act the cost of maintenance and repairs shall be met by the tenant himself. The tenant u/s 79A is entitled to certain customary and other rights whereas there is no such right available under the Rent Control Act. Under the Rent Control Act, if the tenant creates a sub-lease he is liable to be evicted whereas there is no such impediment or restriction imposed on the tenant under the K. L. R. Act.

The differences noted above are not exhaustive. There are many more. I referred to these instances of differences only to highlight the position that the rights enjoyed by the tenant under these enactments are in fact alternative rights.

The rights or privileges aforesaid are rights or privileges conferred on the tenant by the above statutes. These rights and privileges rest in the individual and they are intended for his sole benefit. The above provision in the Rent Control Act and the K. L. R. Act are made for the benefit and protection of private rights and therefore the person for whose benefit these provisions are enacted, can waive the said rights. It is axiomatic that a person can waive any matter which affects his property and any alienable right or privileges of which he is the owner or which belongs to him, whether conferred by statute or arising out of contract. The waiver of any of these rights or privileges by a tenant therefore will not infringe any public right or contravene any public policy. I am fortified in this view by the following passage from Maxwell, 12th edition, pages 328-330:

Every-one has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy....... A tenant, for instance, whose goods had been distrained might waive the provisions of the Distress for Rent Act 1689 which required an appraisement before the sale of the goods, and he could not be heard to complain after the sale that no appraisement had been made.

If a tenant therefore avails of the rights provided for under one statute with full knowledge of the relevant facts, the rights recognised under the other, must be held to have been waived. It is all the more so if the landlord by orders of court upholding the stand taken by the tenant, is compelled to change his position to his detriment.

At this stage it is apposite to take note of the following excerpts from Bigelow on ''Estoppel'' at page 783;

If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of justice would in most cases be paralysed, the coercive process of the law available only between those who consented to exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the Courts and consistency of proceedings is therefore required of all those who come or are brought before them.

It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose.

It is in this background the dispute in this case requires to be considered. The petitioner admittedly is holding the property as a tenant under Ext. A1. Ext. A1 is dated 18-1-1974. On two occasions (as evidenced by Exts. B6 and B7) the tenant had approached the Accommodation Controller u/s 17 (2) of the Rent Control Act for effecting repairs on the building. The Accommodation Controller, as is seen from the orders, has allowed the petitioner to carry out the repairs and adjust the cost from the rent he is bound to pay to the respondent. It can thus be seen that the said orders, in favour of the petitioner have prejudicially affected the interest of the respondent. In short, those orders were detrimental to the petitioner, in that he had to pay for the repairs though according to him the repairs were not necessary. The petitioner did not stop there. He applied u/s 5 of the Rent Control Act for fixation of the fair rent. In the statement filed u/s 17 (2) the respondent had specifically stated that the petition was not maintainable because the petitioner in fact was a kudikidappukaran. The petitioner then and there had known that he bad certain rights available under the K. L. R. Act; none-the-less he persisted and pursued his application u/s 17 of the Rent Control Act and got an order in his favour. Having elected to avail of the right conferred on him under the Rent Control Act and got an order from the authorities constituted under that Act to the prejudice of the landlord, the petitioner shall not be permitted to give up that stand and take shelter under the K. L. R. Act and avail of the benefit of Section 75 thereof.

In the light of what is stated above, I unhesitatingly hold that the petitioner has waived his right under the K. L. R. Act and as such his contention that he is entitled to the benefit of a kudikidappukaran cannot be taken cognisance of.

The learned counsel For the petitioner however, submits that the petitioner shall not be pinned down to the doctrine of waiver/estoppel on the ground that he had already availed of the benefits under the Rent Control Act. He further submits that the question relating to estoppel or waiver cannot be considered in the absence of specific pleadings in that regard. In support of this argument, he referred to the decisions reported in A. I. R. 1961 Mad. 114 and A. L. R. 1937 Bom. 326. There cannot be any dispute about this.

However, a question would arise as to whether insistence of pleadings, can be taken cognisance of in this case at all. The order under attack was passed by a quasi judicial authority and if that be the position, the rules on pleadings, lam of the view, could not be enforced strictly The above view of mine is supported by the decisions reported in Ghulam Mohd. Vs. Badshah Begum and Others, . For another reason also, the above argument is liable to be rejected. It must be remembered that the object of pleading is to prevent surprise at the hearing. It is by now well establised that a court will be slow to throw out a cause on the technical plea of want of specific pleading, when the parties are aware of the substance of the pleading and no prejudice is caused to the other side. (Vide Kidar Lall Seal and Another Vs. Hari Lall Seal, ). Here what is seen from Exts. B6 and B7 is that the petitioner had not been taken by surprise when the argument based on waiver/estoppel was advanced before the District Court.

The order of the Land Tribunal which was under challenge before the appellate court, cannot be said to be perverse because the order of the Tribunal is based on the evidence both, documentary and oral, the parties had let in. It is only after considering the evidence, the Land Tribunal came to the conclusion that the value of the building at the time of the letting was not more than the prescribed limit. In arriving at the said figure the Tribunal has taken into account the fact that the landlord had effected some improvements on the building after it was constructed. The Land Tribunal under law cannot be said to have gone wrong in taking these aspects into account to arrive at the correct value of the building while considering the case of the petitioner under the K. L. R. Act. Whether the repairs effected or reconstructions made by the landlord to the building also can be taken into account while fixing the value for the purpose of the K. L. R. Act no more is a moot question in view of the decision of this Court in 1984 KLT 447. I therefore do not find my way to interfere with the order under attack. For the reasons stated above, the Civil Revision petition is liable to be dismissed. Accordingly the same is dismissed. No costs.

In the circumstance of the case, it is only reasonable if the petitioner is granted 3 months'' time to surrender possession. I do so.