Sathyaseelan vs Madhavan

S. Sankarasubban, J.—This Civil Revision Petition is filed against the judgment in R.C.A. No. 11 of 1996 on the file of the District Court, Kollam. The facts of the case are as follows:

Counter petitioner in R.C.O.P. No. 1 of 1993 on the file of the Rent Control Court, Kottarakkara is the revision petitioner. Respondent had also filed petition for eviction under Sections 11 (2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ''the Act''). The allegation in the petition are as follows: Petitioner in the present revision petition took the schedule building as per Ext. A1 rent deed dated 15.7.1985 for a period of six months agreeing to pay a monthly rent of Rs. 50/-. But the rent was paid only for the months of August and September and thereafter, rent was defaulted. The landlord, who was residing in Idukki in connection with his job executed a general power of attorney in favour of E.K. Bhasu and the said Bhasu filed O.S. No. 179 of 1986 before the Munsiff''s Court, Kottarakkara for eviction of the present petitioner from the petition schedule building with arrears of rent and that suit was decreed as prayed for. Against that decree, the petitioner filed A.S. No. 74 of 1988 and that appeal was dismissed and against the dismissal of the appeal, the petitioner preferred S.A. No. 953 of 1991.

At the time of filing this Civil Revision Petition, the appeal was pending before this Court, Meanwhile, Buildings (Lease and Rent Control) Act was extended to the place where the building is situate, ie., Ezhukone Panchayat with effect from 27.2.1989. So, the landlord filed R.C.O.P. No. 1 of 1993 before the Rent Control Court on 20.2.1993. The eviction petition was resisted stating that the petition is not maintainable. There is no landlord-tenant relationship. It was contended that an extent of 37 1/2 cents of land belonged to the petitioner and his wife and they executed a sale deed on 10.3.1983 in favour of one Rajasekharan Nair as security for the amount of loan of Rs. 1,00,000/- obtained from him and as demanded by him. Out of the said amount of Rs. 1,00,000/- the respondent repaid a sum of Rs. 50,000/- and the entire interest. The sale deed in favour of the landlord is a sham document and the other ground of eviction also denied.

The Rent Control Court allowed the eviction petition u/s 1192)(b) and 11(3) of the Act. But the ground u/s 11(4)(ii) was rejected. Against that an appeal was preferred before the Appellate Authority. The Appellate Authority dismissed the appeal. Against that the present revision is filed.

The main ground urged by the learned counsel for the petitioner is that one of the ground considered by the Appellate Court and the Rent Control Court was regarding the question whether the landlord tenant relationship existed between the petitioner and the counter petitioner. Learned counsel for the petitioner submitted that on the basis of Exts. A9 to A11, both the courts took the view that the position is concluded by judgment in O.S. No. 179 of 1986. Learned counsel for the petitioner submitted that O.S. No. 179 of 1986 was filed for evicting the petitioner with arrears of rent. At that time, the Rent Control has not been extended to Ezhukone Panchayat. It the suit, the petitioner has raised question regarding the title of the landlord. The title was found in favour of the landlord and eviction was ordered. Ext. A9 is the Judgment. Against Ext. A9 judgment, the petitioner preferred A.S. No. 74 of 1988. That case was disposed of by judgment dated 12.11.1991. Learned counsel for the petitioner submitted that by the time the judgment was delivered, the Rent Control Act had been extended to Ezhukone Panchayat and hence, the judgment of the Appellate Court is without jurisdiction. In this context, it is worth nothing that the Appellate Court also found that there was landlord-tenant relationship between the petitioner and the respondent.

As already stated, against A.S. No. 74 of 1988, the petitioner preferred S.A. No. 953 of 1991, which was disposed of by judgment dated 1.3.1995. Learned counsel for the petitioner submitted that as a matter of fact, at the time of arguing the appeal, the petitioner had requested for withdrawal of the appeal and hence, whatever observations are made in the judgment are not binding on him. Learned counsel further brought to our notice a decision of this Court reported in Kuruvilla Abraham v. John, 1995 (1) KLT 161 and also a decision of the Supreme Court reported in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., Attmept of the learned counsel for the petitioner was that since the judgment of this Court in Ext. A11 judgment and the judgment of the Appellate Court in Ext. A10 judgment were without jurisdiction, those judgments cannot be taken note of. In that circumstance, the findings in Ext. A9 judgment will not be binding on the petitioner. Hence, according to learned counsel for the petitioner, the courts below ought to have gone into the question of title on merits. Learned Counsel also contended that no grounds exist for eviction under Sections 11(3) and 11(2)(b) of the Act.

Learned counsel for the respondent submitted that the suit O.S. No. 179 of 1986 was filed for eviction as well as for arrears of rent. The suit was decreed by the trial court. Appeal filed against filed against that was also dismissed. Even though the petitioner preferred Second Appeal, ultimately, he withdrew the appeal. Learned counsel submitted that it is not correct to say that the judgment of the lower appellate Court and this Court are without jurisdiction. According to him, the Rent Control Act prohibits only eviction except in accordance with law. The suit was for eviction and for arrears of rent. So long as recovery of arrears of rent is concerned, the jurisdiction of the civil court has not been ousted. For the purpose of finding out whether the petitioner is entitled to arrears of rent the question of title has necessarily to be decided. Hence, the decision regarding title is binding for the relief of arrears of rent. It is further submitted that the findings of the Appellate Court are binding. Those findings have become final. Learned counsel contended that the courts below were correct in holding that the finding regarding title was barred by the principles of res judicata.

The Act states that a person shall not be evicted except in accordance with the provisions of the Act. At one time, there was a view, that there was no bar in passing a decree. But the decree passed cannot be executed. Kochu Thommen, J. in Narayanan v. Ratnamma, 1987 (2) KLT 473 held that when a decree is passed that it is not executable, then it is liable to be set aside as invalid. But the Division Bench in Gourikutty Amma v. Kesavan, 1988 (1) KLT 649 , held that Section 11(1) of the Act does not oust the jurisdiction of the civil court to pass a decree for eviction. The only prohibition is that such a decree could be executed only in accordance with the provisions of the Act. Subsequently, the Supreme Court in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., held that when civil court having no jurisdiction passed a decree it is a nullity, that the tenant can arise his objection to the decree even at the stage of execution of the decree and that the decree would not operate as res judicatta. In M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., , the Supreme Court held that any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the act (obviously) referring to the Rent Control Act) otherwise than as stipulated by the provisions in that Act is incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect. Subsequently, a Full Bench in Kuruvilla Abraham v. John, 1995 (1) KLT 161 held as follows:

"In a case where the Civil Court lacked jurisdiction in entertaining the suit in view of the fact that the area in which the building is situated comes with the purview of the Act the decree is not only not executed but also is liable to be set aside as invalid. As the decree passed by the trial court was challenge before the District Judge and as the appeal is the continuation of the proceedings in the trial court, the District Judge lacked jurisdiction to confirm the decree of the trial court when the area in which the building is situated has become part of Thiruvalla Municipality by notification dated 31.7.1987, respondent landlord can evict the appellant-tenant only under recourse of the provisions of the Act. As the civil court lacked jurisdiction to try the suit for eviction of the appellant from the building, merely because when the decree was passed Munsiff had jurisdiction to try the suit, the lower appellate court cannot shut its eyes to the changed situation whereby the jurisdiction of the civil court has been taken off by inclusion of the area as part of Thiruvalla Municipality."

Thus, as per the Full Bench decision, suit for eviction, even though decreed by the Munsiff Court, can be dismissed as without jurisdiction, if during the pendency of the appeal, the Act comes into force. The argument of the learned counsel for the petitioner is that at the time when the appeal was pending before the First Appellate Court, the Act has been extended to Ezhukone Panchayat and hence the decree passed by the Appellate Court is without jurisdiction. Ext. A9 judgment of the trial court in O.S. No. 179 of 1988 decreed as follows: (1) The plaintiff is entitled to get eviction of the defendant from the plaint schedule property through process of the court. (2) The plaintiff is entitled to realise Rs. 450/- as arrears of rent with interest at the rate of 12% per annum from the date of suit till the date of decree and at 6% from the date of decree till the date of realisation. Ext. A10 is the judgment passed by the Appellate Authority. The Appeal was dismissed. In paragraph 8 of the Appellate Court judgment, arrears of rent has been discussed. It is against that the Second Appeal was filed before this Court.

Identical contention that was put forward now was raised in the Second Appeal also. In paragraph 4 of the judgment in S.A. No. 953 of 1991, the learned Judge held as follows: "It is therefore clear that a suit by the landlord for recovery of arrears of rent from the tenant of a building is not barred either expressly or by necessary implication.

Learned counsel even though attempted to argue that after the coming into force of the Act, a suit for arrears of rent will not lie he was not able to convince us regarding this aspect. The only argument put forward before us is that if u/s 11(2) of the Act, a tenant can be evicted for arrears of rent, the civil court jurisdiction to decide the question of arrears of rent is ousted. We don''t agree with this proposition. Even now a person can approach for recovery of arrears of rent in a civil court. Thus, the civil court''s jurisdiction for recovery of arrears of rent is not taken away by the Act. For deciding the question whether the respondents are entitled to arrears of rent, the question of title has to be decided. According to us, the decisions in the suit and the appeal will be binding on the petitioner. Learned counsel for the petitioner then brought to our notice paragraphs 6 and 7 of Ext. A11 judgment. It appears that when Ext. A11 judgment was being dictated and it became clear that this Court was taking the view that Exts. A9 and A10 were passed with jurisdiction, an attempt was made to withdraw the Second Appeal. This Court held that the Second Appeal wil be allowed to be withdrawn and that cannot take away the effect of the judgment under appeal. Learned counsel for the petitioner arguned on the property or otherwise of this Court in deciding the question on the maintainability of the suit, when the petitioner wanted to withdraw the appeal. It is true that once the petitioner says that he wants to withdraw the appeal and he is not pressing the appeal, it is not necessary for this Court to go into the merits of the matter. But even supposing this Court has not made any observation while withdrawing the appeal, as stated earlier, withdrawal of the appeal will not erase out of the binding nature of Ext. A10 judgment. The attempt of the petitioner was to show that the Appellate judgment was passed without jurisdiction. Then after the withdrawal of the Second Appeal, there will be no judgment against the petitioner.

As we stated earlier, it cannot be said that the first appeal is without jurisdiction, since that court his jurisdiction to decide the question of arrears of rent. Hence, the learned Judge was correct in going to the merits of the matter. In view of the above, we hold that the petitioner is bound by the findings in Exts. A9 and A10 judgments.

The next question is whether the Court below was correct in ordering eviction. In so far as the order of eviction u/s 11(2)(b) of the Act is concerned, the court has said that the tenant could not be evicted if he deposits the entire arrears with interest and costs u/s 11(2)(c) of the Act. So far as bonafide need is concerned, we don''t find any illegality or irregularity in the order passed by the courts below. The petitioner wanted the house, since he did not have any other house for the purpose of education of his children. Taking into circumstances the entire matter, we hold that the order of eviction is valid.

In the above view of the matter, Civil Revision Petition is dismissed. We give three months time to the petitioner to vacate the premises.