IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 3 of 2011()
1. AKBAR ALI, S/O.SULAIMAN, RESIDING AT
... Petitioner
Vs
1. U.NARAYANANKUTTY, S/O.K.S.UNNIKRISHNAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :05/01/2011
O R D E R
PIUS C. KURIAKOSE &
N.K.BALAKRISHNAN, JJ.
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R.C.R.Nos.3,7,8,9,10,11 & 12 of 2011
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Dated this the 5th day of January, 2011.
O R D E R
Balakrishnan, J.
The short point that arises for consideration in these seven
Rent Control Revisions is whether the order for joint trial and
the consequent order of eviction passed by the learned Rent
Controller u/s.11(3) of Act 2/65 which was confirmed in appeal
by the learned Appellate Authority suffer from the vice of
illegality, irregularity or impropriety warranting invocation of the
revisional jurisdiction of this Court under S. 20 of the Act.
2. Eight Rent Control Petitions were filed by the same
landlord against different tenants inter alia raising the common
ground for eviction under S.11(3) of the Act. All the petition
R.C.R.3/2011 and connected cases 2
schedule rooms form part of the ground floor of a larger building.
The common ground urged by the landlord is that he requires all
the petition schedule buildings/rooms for the purpose of
conducting a departmental store. It was averred that in order to
conduct a departmental store, necessary modifications and
alternations will be effected by him after the buildings are got
vacated. Against some of the tenants apart from Section 11(3),
other grounds like Section 11(4)(iii) and 11(4)(v) were also
projected.
3. All the eight Rent Control Petitions were jointly tried and
a common order of eviction was passed by the Rent Control
Court on the ground of bonafide need and on other grounds also.
4. The respondent in R.C.P.No.1/2008 did not file any
appeal. It is reported that he subsequently vacated the building
held by him.
5. The appeals filed by other seven tenants were dismissed
by the learned Appellate Authority confirming the order of eviction
R.C.R.3/2011 and connected cases 3
under Section 11(3) of the Act. Challenging the concurrent
verdicts the tenants have come up in revision. They contend that
the joint trial allowed by the Rent Controller is unsustainable since
there is differentiality in the defensive pleas taken by the tenants
and that merely because all the rooms are under the common roof
belonging to the same landlord, it cannot be held that the petitions
can be jointly tried.
6. Sri. V.Chitambaresh, learned senior counsel has relied
upon the decision in Ebrahim Ismail Kunju v. Phasila Beevi
[1991(2) KLT 861] and submitted that since the common ground
urged by the landlord is under Section 11(3), the tenants can have
different defensive pleas pertaining to the second proviso to
Section 11(3) and the evidence that can be let in by the tenants to
prove entitlement of the benefit under the second proviso must
certainly vary depending upon the various defences taken by
them. In Ebrahim Ismail Kunju v. Phasila Beevi [1991(1) KLT
861] this Court was considering a case where there were two
R.C.R.3/2011 and connected cases 4
landlords. Smt.Phasila Beevi was the landlady in one case and her
husband was the landlord in the other two cases. They filed a
petition for joint trial. In that case it was found that a joint trial
would work out serious prejudice to the parties and therefore it
was held that order for joint trial cannot be sustained. But here, the
landlord is the same. The decision in Ebrahim Ismail Kunju v.
Ogasuka Beevi (cited supra) was followed in Sasidharan v.
Saroja (2004(2) KLT 885). That decision was also relied upon
by the learned senior counsel for the revision petitioner, where it
was held:
“Landlord in all the cases is the same.
Tenants are different. Need urged is also
the same. That by itself, in our view, is not
sufficient to order a joint trial. A Division
Bench of this Court in Ibrahim Ismail
Kunju v. Phasila Beevi, 1991(1)KLT
861,while dealing with the scope of Section
R.C.R.3/2011 and connected cases 5
23 of Act 2 of 1965 in a case where
eviction was sought for under Section 11
(3) held that the mere fact that three shop
rooms are under a common roof would not
justify the running of a joint trial”.
7. It may be remembered that the decision in Sasidharan’s
case was rendered as the application for joint trial was opposed
and not in a case like this, where the application was not opposed
at all and the parties lay by it and submitted to the jurisdiction and
suffered the orders of eviction after a full fledged enquiry. Not
only that, no contention was raised in the appeal that any prejudice
was caused to them because of joint trial. Therefore, the decision
in Sasidharan’s case cited supra also has no application to the
facts of this case.
8. The learned counsel for the landlord has pointed out that
when joint trial petition was filed by the landlord, the same was
not opposed by the tenants. The further fact is that only one of
R.C.R.3/2011 and connected cases 6
the tenants raised the plea of protection under the second proviso
to Section 11(3) but he could not succeed because of the fact that
he could not prove the second ingredient of the second proviso to
Section 11(3). The learned counsel therefore submits that
objection raised for the first time before this Court regarding
joint trial must necessarily fail.
9. The decision in Abdul Aziz v. Shankaran [2002(2) KLT
613] can also be referred to. That was a case where the tenants in
the two RCPs filed by the same landlord were brothers who
subsequently jointly constructed a building in the same town and
the landlord therein sought eviction of those tenants under Section
11(4)(iii) of the Act. When application for joint trial was filed, it
was allowed by the trial court holding that joint trial of the two
cases would minimise the evidence and would be convenient for
both the parties. It was further held in the aforesaid case that the
Rent Control Court has inherent power to direct joint trial of cases
if the joint trial will sub-serve the interest of the parties and is
R.C.R.3/2011 and connected cases 7
necessary in the interest of justice. There is no statutory
prohibition for ordering joint trial. The Rent Control Court would
normally be in a position to modulate its procedures in such a
manner as to best sub-serve the interest of the litigants. Every
issue regarding joint trial has to be decided on its own merit. In
the case on hand, facts to be proved to substantiate the claim for
eviction in all the petitions are the same.
10. The main thrust of the argument advanced by the learned
Senior counsel appearing for the revision petitioners is that since
each of the tenants would be entitled to claim protection under the
second proviso to Section 11(3) the evidence that can be adduced
by each of them, at least with regard to the first limb of the second
proviso would be certainly different. But even then it is not a case
where any prejudice would be caused to the tenant because
entitlement of the second proviso to Section 11(3) claimed by each
of the tenant may have to be considered independently and
separately. If any of the tenants could succeed in establishing that
R.C.R.3/2011 and connected cases 8
he was mainly depending on the income derived from the business
carried on in the petition schedule building and if he proves that
there were no suitable buildings available in the locality at the
relevant time he may have to be granted protection under the
second proviso which can never depend upon the rejection, if any
of a similar claim made by other tenants under the second proviso
to Section 11(3). A piquant situation may arise where there are
two or more tenants occupying separate portions under the same
roof and more than one tenant out of them could succeed in
proving the first limb of the second proviso but only one suitable
vacant room was available in the locality at the relevant time; then
who has to be given the protection or deny the protection under
the second proviso may be a pertinent question. But here, that
situation does not arise. Even in a situation as mentioned above
prejudice may be caused only to the landlord and not to the
tenant, as the benefit may have to be given to the tenant.
R.C.R.3/2011 and connected cases 9
11. The decision in Mohammed Salim v. Habeeb &
Company [2002(2) KLT 93] was rendered in a case in which the
common ground for eviction was reconstruction under Section 11
(4)(iv) of the Act. In that case it was held that the facts were in
favour of allowing a joint trial application as evidence regarding
the present condition of the building, approval of plan, licence etc.
are the same and that allocation of the reconstructed building
would also be more convenient for the tenants if the cases are
jointly tried. It was further observed that to avoid conflict of
findings and save the time of the court also joint trial is convenient.
The learned Senior Counsel for the revision petitioners would
strenuously argue that the ingredients to prove the ground under
Section 11(4)(iv) are totally different and that the evidence to be let
in such a case is common and that no prejudice will be caused to
the tenant in such cases since there can be no difference in the
defensive pleas, but when the ground for eviction is under Section
R.C.R.3/2011 and connected cases 10
11(3) there would be difference in the defensive pleas especially
when the respective tenants put forward claim for protection under
the second proviso to Section 11(3) of the Act.
12. Another decision of this Court in Sasikumar v. Sheeba
[2009(4) KLT 384] [in which one of us was a party – Pius C.
Kuriakose, J.] has also been referred to in this connection. There
also, the ground for eviction was under Section 11(4)(iv) of the
Act. It was held in that case that objections as to misjoinder of
causes of action and misjoinder of parties should be taken at the
earliest opportunity failing which the court could not interfere
unless it is shown that serious prejudice has been caused to the
parties. The Division Bench followed the Full Bench decision in
Jamal v. Safia Beevi [2005(2) KLT 359 (F.B.)].
13. The Full Bench decision in Jamal v. Safia Beevi [2005
(2) KLT 359 (F.B.)] was rendered pursuant to a reference made by
a Division Bench for a decision on the question as to whether a
single Rent Control Petition can be maintained for evicting two
R.C.R.3/2011 and connected cases 11
tenants covered by two different tenancy arrangements on the same
or several grounds of eviction. Out of the five answers given by
the Full Bench to the reference, the fourth answer given is
regarding the misjoinder of causes of action and misjoinder of
parties. It was held :
“(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.”
The 5th answer given by the Full Bench as quoted above would
support the view that there can be consolidation of applications for
eviction if there are similarity or identity of the matters. In the
present case admittedly objection regarding misjoinder of causes
R.C.R.3/2011 and connected cases 12
of action and misjoinder of parties was not raised either before the
Rent Control Court or before the Appellate Authority and has been
raised for the first time before this Court in revision. Therefore
objection now raised regarding the procedure followed by the
learned Rent Controller having a joint enquiry after allowing the
petition filed by the landlord for that purpose is unsustainable.
The fact that no objection was raised before the Rent Control Court
or before the Rent Control Appellate Authority according to the
learned Senior counsel appearing for the petitioners can not save
the situation or come to the rescue of the landlords since it affects
the very jurisdiction of the Rent Control Court to have a joint trial.
We are not persuaded to accept that submission. The jurisdiction
of the Rent Control Court was not affected because joint trial was
not opposed at all.
14. The bonafide need projected by the landlord in all these
petitions is common that all the petition schedule buildings/rooms
under the same roof are required for conducting a departmental
R.C.R.3/2011 and connected cases 13
store for which the landlord says that after getting eviction the
intervening walls would be removed. That is the case set up by the
landlord in all the rent control petitions. As regards the claim
under Section 11(3) the defence raised by all the tenants is
common. It was held by the Apex Court in Om Prakash
Srivastava v. Union of India and another [2007(2) SCJ 263] :
“The cause of action has no relation to the defence that
may be set up by the defendant nor does it depend upon
the character of the relief prayed for by the plaintiff”
15. This decision was followed by the Division Bench of this
Court in Kunhamu v. Arun Kumar [2010(3) KLT 640] which
was authored by one among us [Pius C. Kuriakose, J.]. So far as
the ground under Section 11(3) in this case is concerned, the cause
of action is the conception of a need in the mind of the landlord to
occupy the entire building for the purpose of conducting
department stores in the whole of the larger building.
16. The learned counsel for the revision petitioners would
submit that when the decision of a coordinate Bench of the same
R.C.R.3/2011 and connected cases 14
High Court was brought to the notice of another Bench, it is to
be respected and is binding. If the other Bench wants to take a
different view or to doubt the correctness of the earlier decision,
the course open to the later Bench is to refer the question to a
larger Bench. In support of his submission, the learned senior
counsel has relied upon the decision in U.P. Gram Panchayat
Adhikari Sangh v. Daya Ram Saroj (2007) 2 Supreme Court
Cases 138, where it was held in paragraph 26:
“Judicial discipline is self-discipline. It is an
inbuilt mechanism in the system itself. Judicial
discipline demands that when the decision of a
coordinate Bench of the same High Court is
brought to the notice of the Bench, it is to be
respected and is binding, subject of course, to the
right to take a different view or to doubt the
correctness of the decision and the permissible
course then open is to refer the question or the case
to a larger Bench. This is the minimum discipline
and decorum to be maintained by judicial
fraternity”.
R.C.R.3/2011 and connected cases 15
17. The argument put forward by the learned senior counsel
is that if this Court wants to take a different view than what was
taken in Ebrahim Ismail Kunju v. Phasila Beevi (1991(1) KLT
861) and Sasidharan v. Saroja (2004(2) KLT 885), the proper
course is to refer the question, whether a joint trial of two or
more petitions filed by the same landlord against different tenants
occupying portions of a larger building for bonafide own
occupation under S.11(3) is maintainable, to a larger Bench so as
to have an authoritative pronouncement on that point and set at
rest the controversy. But this argument has been taken
exception by the learned counsel for the landlord pointing out the
inapplicability of the decision to the facts of this case since in the
present case no objection as to misjoinder of the causes of action
was taken by the tenants either before the Rent Control Court or
before the Appellate Authority and also in view of the later
decision rendered by the Division Bench in Kunhamu v. Arun
R.C.R.3/2011 and connected cases 16
Kumar (2010(3) KLT 640). The Supreme Court decision in Om
Prakash Srivastava cited supra would also run counter to the
plea of prejudice put forward by the tenants.
18. As stated above, there is concurrent finding by the two
Courts with regard to the bonafide need projected by the landlord
that he requires the building for starting a department store after
effecting alterations and modifications. We have gone through
the order of the learned Rent Controller and the judgment of the
learned Appellate Authority. We are reminded of the contours of
our revisional jurisdiction under Section 20 of the Act. There is
no illegality, irregularity or impropriety in the finding entered by
the courts below. Since the tenants could not succeed in proving
the two ingredients required for the protection of the second
proviso to Section 11(3), the orders of eviction passed in all the
cases have to be sustained.
19. Sri.Chitambaresh, learned senior counsel for the revision
petitioners made a fervent appeal to grant two years time to the
R.C.R.3/2011 and connected cases 17
tenants to vacate the premises. This request is strongly opposed
by the learned counsel for the landlord. Since the tenants are
conducting business in some of the rooms, we find that it is just
and proper to grant them time till 31.12.2011 subject to certain
conditions. We also notice that the rent that is paid by some of
the tenants is too low. Since all the rooms are having almost
identical space, we think it proper to fix the monthly occupation
charges at Rs.1500/- in respect of each of the rooms. It shall be
paid with effect from 01.02.2011.
20. The result therefore is:
The revision petitions will stand dismissed. The revision
petitioners are granted time till 31.12.2011 to vacate the petition
schedule buildings on the following conditions:
The tenants/revision petitioners shall file affidavits before the
Execution Court within three weeks from today undertaking to
give peaceful surrender of the petition schedule building to the
respondent/landlord on or before 31.12.2011. The tenants shall
R.C.R.3/2011 and connected cases 18
also undertake through the same affidavits that occupation
charges at the rate of Rs.1,500/- per month will be promptly
paid with effect from 01.02.2011 as and when it falls due.
We make it clear that the revision petitioners would be
entitled to get the benefit of extension of time only if the
affidavits are filed within three weeks from today and the
undertakings given by them are honoured.
PIUS C. KURIAKOSE,
JUDGE.
N.K.BALAKRISHNAN,
JUDGE
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