IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 188 of 2010()
1. JOLLY JOSEPH, AGED 40 YEARS,
... Petitioner
Vs
1. MANU K.THOMAS, AGED ABOUT 32 YEARS,
... Respondent
For Petitioner :SRI.SERGI JOSEPH THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :15/07/2010
O R D E R
PIUS C. KURIAKOSE &
C. K. ABDUL REHIM, JJ.
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R. C. R. No.188 of 2010
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Dated this the 15th day of July, 2010
ORDER
Pius C. Kuriakose, J
Under challenge in this revision filed under
Section 20 of Act 2 of 1965 is the judgment of the
Rent Control Appellate Authority, Kottayam
confirming the order of eviction passed against
the revision petitioner under Section 11(2)(b).
The respondent/landlord sought to evict the
revision petitioner on the ground of arrears of rent
only. Before instituting the Rent Control Petition,
the respondent issued Ext.A4 notice intimating the
revision petitioner of the default in payment of
rent and giving him opportunity to discharge the
R. C. R. No.188 of 2010 -2-
arrears. Significantly, the revision petitioner did
not respond to that notice at all. However, when
the RCP was filed alleging arrears of rent at the
agreed contract rate of Rs.1,500/-, it was
contended by the revision petitioner that the Rent
Control Petition is bad for non-joinder of
necessary parties. Ext.A1 lease deed executed
between the revision petitioner and the father of
the respondent was admitted. But the contention
was that the father of the respondent late Thomas
was not the only owner of the building. There
were other co-owners for the building. It is
virtually conceded that the petitioner’s father was
one of the co-owners. It was also contended that
petitioner’s father is survived not by the petitioner
alone. It is in the above context that the
R. C. R. No.188 of 2010 -3-
contention is raised that the RCP is bad for non-
joinder of co-owners of the petitioner’s father as
well as the other legal heirs of the petitioner’s
father. A plea of discharge was also raised in
respect of the quantum of rent alleged as arrears.
It was contended that furniture worth a
substantial amount was purchased by one of the
co-owners of the petitioner’s father from the
respondent’s furniture shop and that the
understanding was that credit will be given to the
value payable for the furniture against rent in
arrears. It was also contended that a sum of
Rs.1,25,000/- had been received by the
petitioner’s father at the time of executing Ext.A1
agreement by way of security. It is contended that
the said amount is to be adjusted against rent
R. C. R. No.188 of 2010 -4-
allegedly in arrears.
2. At trial before the Rent Control Court, the
evidence consisted of Exts.A1 to A5, B1 and B2
and oral testimonies of PWs.1 and 2 and DW1.
Ext.A2 was a will executed by the petitioner’s
father bequeathing entirety of his assets in favour
of the petitioner. PW2 was one of the attestors to
Ext.A2. The Rent Control Court on appreciating
the evidence came to the conclusion that the
petitioner in the RCP was able to establish
existence of landlord-tenant relationship between
the parties and also that the allegation regarding
arrears of rent stood established on the basis that
despite Ext.A4 statutory notice arrears of rent was
not discharged within the statutory period of 15
days. Eviction order under Section 11(2)(b) was
R. C. R. No.188 of 2010 -5-
passed directing the revision petitioner to put the
landlord in possession within 30 days. The
Appellate Authority considering the appeal
preferred by the revision petitioner re-appraised
the entire evidence. That Authority also concurred
with all the conclusions of the Rent Control Court
and confirmed the order of eviction. The Appellate
Authority, however noticed, Section 11(2)(c) and
granted to the revision petitioner one month’s
time to have the order of eviction vacated by
making requisite application under Section 11(2)
(c).
3. In this revision filed under Section 20,
various grounds have been raised by the revision
petitioner assailing the judgment of the Appellate
Authority. Sri.Harindramohan Nair, the learned
R. C. R. No.188 of 2010 -6-
counsel for the revision petitioner addressed us
very strenuously and extensively on all those
grounds. Sri.Harindramohan Nair submitted that it
has been specifically contended by the revision
petitioner through the statement of objections
that the Rent Control Petition is bad for non-
joinder of necessary parties. According to him,
though Ext.A1 is admitted, the contentions
specifically raised is that Ext.A1 was executed in
favour of the respondent’s father as a person
representing all the co-owners of the building.
Rent, if any, collected by the respondent’s father
was paid to him for the benefit of the co-owners.
Sri.Harindramohan Nair further submitted that the
genuineness of Ext.A2 will is seriously disputed.
According to him, Ext.A2 will does not pertain to
R. C. R. No.188 of 2010 -7-
the petition schedule building. Even if it pertains
to the petition schedule building inasmuch as
petitioner’s father the party to Ext.A2 was having
only co-ownership rights over the property the
present eviction proceedings without the junction
of the other co-owners is bad. He argued that the
appreciation of pleadings and evidence by the
authorities under the statute was highly erroneous
and requested that the judgment of the Appellate
Authority be vacated.
4. We have very anxiously considered the
submissions of the learned counsel. As directed by
us Sri.Harindramohan Nair placed before us copy
of the Rent Control Petition and the statement of
objections filed. We have appraised the above
pleadings raised by the parties. We will at once
R. C. R. No.188 of 2010 -8-
remind ourselves of the contours of this Court’s
jurisdiction in which we are presently sitting. In
the present jurisdiction under Section 20 which is
revisional in nature this Court is not expected
ordinarily to make a re-appraisal of the evidence
for the purposes of substituting the factual
conclusions arrived at by the final fact finding
authority the Rent Control Appellate Authority
especially when the same has been made
concurrently with the Rent Control Court. We find
on scanning the judgment of the Appellate
Authority that the factual conclusions arrived at
therein are founded on evidence – oral
documentary and circumstantial which was
available. Ext.A1 is admitted to be rental
arrangement in respect of the building in
R. C. R. No.188 of 2010 -9-
question. The parties to Ext.A1 are the revision
petitioner and late Thomas, the respondent’s
father. As observed by the learned Appellate
Authority, there is nothing on the face of Ext.A1 to
indicate that Ext.A1 was brought into existence by
the late father of the respondent on behalf of
somebody else also. Ext.A2 is a will executed by
the late father of the respondent. Its due
execution and attestation has been proved by
PW2 who is admittedly one of the attestors
thereto. The revision petitioner is a stranger to
Ext.A2. He is not competent to challenge the
genuineness of Ext.A2. The persons who ought to
have been aggrieved by Ext.A2 have not come
forward so far, as rightly observed by the District
Judge to challenge Ext.A2. The revision petitioner
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concedes the respondent (the petitioner in the
RCP) to be at least a co-owner. It is trite by
decisions of this Court that even a co-owner will
be able to maintain petition for eviction provided
there is no opposition from the fellow co-owners
in the matter. Ext.A2 is admittedly the document
which governs the tenancy. It has become evident
that the rent payable as per Ext.A2 is in arrears.
The contention is one of adjustment against the
price of furniture supplied to one of the so called
co-owners of the deceased father of the petitioner
in the RCP and that a sum of Rs.1,25,000/- is
outstanding with the deceased father of the
respondent. These are contentions on which it was
for the revision petitioner to have adduced cogent
evidence for substantiating. Revision petitioner
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failed in doing so.
5. It is trite by various decisions of this Court
that order of eviction passed by the Rent Control
Court under Section 11(2)(b) unlike such orders
passed under other grounds is only provisional or
tentative, in the sense that the same is liable to
be vacated by making requisite deposit under
Section 11(2)(c). Statutory authorities are not
expected to consider the question of proprietary
title over the building which is subject matter of
the lease. They are expected to be concerned only
with the existence of the landlord-tenant
relationship which stands proved as per Ext.A2
between the revision petitioner and the deceased
father of the respondent. Under the above
circumstances, we do not find any illegality,
R. C. R. No.188 of 2010 -12-
irregularity or impropriety with the judgment of
the Appellate Authority. We clarify that deposit of
the arrears of rent in terms of the eviction order
presently passed for getting the same vacated
under Section 11(2)(c) will be complete discharge
for the revision petitioner against claims by
anybody else for rent in respect of the building in
question.
6. Subject to the above clarification, we
dismiss the RCR, however, granting to the revision
petitioner two months’ time from today for getting
the eviction order vacated under Section 11(2)(c).
PIUS C. KURIAKOSE
JUDGE
C. K. ABDUL REHIM
JUDGE
kns/-