Vinodhan vs Thulasidevi

Pius C. Kuriakose, J.—The landlord is the revision petitioner. He challenges in this revision, u/s 20 of the Kerala Building (Lease and Rent Control) Act 1965, the judgment of the Rent Control Appellate Authority remitting the rent control petition back to the Rent Control Appellate Court for formulating an issue as to whether the tenant''s denial of the landlord''s title is a bona fide one (a preliminary issue as envisaged by the proviso to Section 11(1) of the Act). The rent control petition was filed by the revision petitioner against the respondent for eviction invoking the grounds of arrears of rent (Section 11 (2)(b)), bonafide need for own occupation (Section 11(3)) and user of the building in such a manner as to reduce the value and utility of the building materially and permanently (Section 11(4) (2)). In the rent control petition, the landlord relied on Exts.A2, A11 and A12 rental agreements to contend that that there is a landlord-tenant relationship between him and the respondent.

The respondent disputed the landlord''s proprietary title over the building, which was claimed on the basis of Ext.A1 sale deed. Inter alia, she disputed the existence of any landlord-tenant relationship between her and the landlord. The Rent Control Court, obviously as nobody wanted any preliminary point or issue to be formulated as to whether the denial of title raised by the respondent/tenant is a bonafide one in terms of the proviso to Section 11(1), listed the RCP for trial on the following points;

Whether the respondent has committed default in payment of rent as alleged by the petitioner?

Whether the petitioner bonafide need the petition schedule building in order to start the business as alleged?

Whether the petitioner is having possession of any other building in the same locality?

Whether the respondent is depending for his livelihood mainly on the income derived from the business carried in the petitioner schedule building?

Is there any other suitable building available in the locality for the residence of the respondent?

Whether the respondent used the building in such a manner so as to reduce its value or utility materially and permanently?

Whether the petitioner is entitled to get an order of eviction as prayed for?

Reliefs and costs?

However, it is seen that in the enquiry conducted by the Rent Control Court, parties let in evidence in touching the existence or otherwise of a landlord-tenant relationship between the parties. The evidence consisted of the oral evidence of the landlord as PW1 and also Exts.A1 to A17 documents. Exts.A2, A11 and A12, whereas already indicated the rental documents, relied on by the landlord in the enquiry. On the side of the tenant, the evidence consisted of the oral evidence of RW1 apart from the evidence adduced by two witnesses such as RWs 2 and 3. The documentary evidence on the side of the tenant consisted of Exts. B1 to B5 and report & plan submitted by the Advocate Commissioner were marked as Exts.C1 and C2. Even though there was no specific issue or point as to the bonafides or otherwise of the denial of the landlord''s title, the Rent Control Court did consider the issue, i.e., the question whether there exists a landlord-tenant relationship between the parties as claimed by the landlord. A reading of paragraph 6, 7, 8 and 9 of the Rent Control Court''s order will clearly show that the issue was considered by the Rent Control Court in the light of the evidence adduced by the parties with all seriousness and in paragraph 9, the following clear finding is seen entered.

On perusal of Exts.A1, A5 to A10 documents, it is clearly revealed that the petitioner has got exclusive right over the petition schedule premises. On perusal of Exts.A2, A11 and A12 documents, it is clearly revealed that the husband of the respondent namely Nandakumar was entrusted the petition schedule premises as per Ext. A11 rent agreement dated 02.10.2000 for a monthly rent of Rs.600/-. Subsequently the respondent herself has executed Ext.A12 document in favour of the petitioner dated 29.11.2000. The rent has been increased to Rs.800/- per month. The rent agreement was renewed and the rent was also increased to Rs. 1,000/- per month from 13.11.2001 as per Ext. A2 document. It was executed by the respondent in favour of the petitioner. From Exts.A2, A11 and A12 documents, it is clearly revealed that the husband of the respondent and the respondent herself has executed Exts.A2, A11 and A12 documents in favour of the petitioner. It is also come out in evidence that originally the rent of the petition schedule premises was Rs.600/- it has been increased to Rs.1,000/- from 13.11.2001 onwards. It is further clearly reveal that there is landlord tenant relationship between the petitioner and the respondent. Therefore, the contention raised by the learned counsel for the respondent that there is no landlord tenant relationship between the petitioner and the respondent is not at all sustainable. The petitioner proved to establish that the rent of the petition schedule premises is Rs. 1,000/- from 13.11.2001. The respondent failed to pay or deposit the entire arrears of rent, interest and cost even after issuance of Ext.A3 lawyer notice. During the Pendency of this petition, the respondent not paid any amount towards the arrears of rent. The respondent failed to adduce any evidence to show that she has paid the entire arrears of rent, interest and cost of the proceedings as on the date of the petition. Thus, on an entire consideration of the evidence adduced in this case, I find that the respondent has committed default in payment of rent as alleged by the petitioner. Therefore, the petitioner is entitled to get an order of eviction u/s 11(2)(b) of BRC Act. The point is found accordingly.

Therefore, it was found that the contention raised by the learned counsel for the respondent that there is no landlord-tenant relationship between the petitioner and the respondent, is not at all sustainable. The Rent Control Court proceeded to examine the merits of the eviction grounds and ultimately ordered eviction on the grounds of arrears of rent and bonafide need for non-occupation. While this allowing the claim of eviction on the ground u/s 11(2), the respondent/tenant preferred RCA No. :24/2006 and the learned Rent Control Appellate Authority under the impugned judgment has referred to the proviso to Section 11(1) and has entered a finding that the Rent Control Court deviated from the mandatory procedure, which is contemplated under the proviso to Section 11(1). In that view of the matter, the learned Appellate Authority set aside the judgment of the Rent Control Court and remitted the RCP to the Rent Control Court for framing a preliminary issue as to the bonafides or otherwise of the denial of title of the landlord and to take a decision on that issue after holding necessary enquiries.

We have heard the submissions of Adv. Sri. R. Rajit, the learned counsel for the revision petitioner and Adv. Smt. R. Sudha, the learned counsel for the respondent. At the very outset, we enquired of Adv.Smt.Sudha drawing her attention to the findings entered by the Rent Control Court regarding the existence of the landlord-tenant relationship between the parties to the RCP as to whether the Rent Control Court has not entered findings regarding the existence of such a landlord-tenant relationship. Her response was that the Rent Control Court entered findings which were incorrect and it was the correctness of those findings which were impugned by the respondent in the RCA.

We are of the view that the learned Rent Control Appellate Authority was too technical in its view that the learned Rent Control Court did not formulate a specific issue in the context of the proviso to Section 11(1) and in remanding the matter to the Rent Control Court for formulating the specific issue and for conducting a fresh enquiry. According to us, though no specific issue or point was formulated by the Rent Control Court, during the trial the parties were very much at issue as to the existence of a landlord-tenant relationship between them and evidence was adduced by both sides touching that issue. The Rent Control Court appreciated the evidence adduced by the parties and entered findings. It is the correctness of those findings and also the correctness of the eviction order passed by the Rent Control Court, which was challenged by the respondent before the Appellate Authority. Under the statutory scheme, the powers of Rent Control Court and the Appellate Authority even in the matter of adduction of evidence are co-equal. According to us, the learned Rent Control Appellate Authority abdicated its statutory appellate powers in not deciding the appeal on its merits. We, therefore, set aside the impugned judgment of the Appellate Authority and remit the RCA to the Rent Control Appellate Authority. The learned Appellate Authority is directed to reappraise the entire materials on record and to decide the following points specifically.

Whether there exists the landlord-tenant relationship between the parties to the RCP and whether the denial of the landlord''s title raised by the respondent is a bona fide one?

Whether orders of eviction passed by the Rent Control Court are sustainable on the basis of the evidence available on record?

The parties will enter appearance before the Rent Control Appellate Authority, Thrissur on 06.08.2012. The learned Rent Control Appellate Authority will expedite matters and will pass a revised judgment as indicated above at the earliest and at any rate within one month of parties entering appearance pursuant to this order.