{"id":190543,"date":"2009-04-08T00:00:00","date_gmt":"2009-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdul-asees-vs-devaki-on-8-april-2009"},"modified":"2017-03-27T09:16:04","modified_gmt":"2017-03-27T03:46:04","slug":"abdul-asees-vs-devaki-on-8-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdul-asees-vs-devaki-on-8-april-2009","title":{"rendered":"Abdul Asees vs Devaki on 8 April, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Abdul Asees vs Devaki on 8 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 36 of 2009(E)\n\n\n1. ABDUL ASEES, S\/O.AHAMMEDKUTTY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. DEVAKI,W\/O.NARAYANAN,PADAMBATH,BALUSSERY\n                       ...       Respondent\n\n                For Petitioner  :SRI.R.RAMADAS\n\n                For Respondent  :SRI.K.JAYAKUMAR\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice C.K.ABDUL REHIM\n\n Dated :08\/04\/2009\n\n O R D E R\n      PIUS C. KURIAKOSE & C.K.ABDUL RAHIM, JJ.\n          -----------------------------------------------\n                  RCR. No. 36 & 86 OF 2009\n          -----------------------------------------------\n            Dated this the 8th day of April, 2008\n\n                           O R D E R\n<\/pre>\n
Pius C.Kuriakose, J.\n<\/p>\n<\/p>\n
     RCR. 36\/09 is filed by the landlord and RCR. 86\/09 is<\/p>\n
filed by the tenant. Both the revision petitions are directed<\/p>\n
against the judgment of the Rent Control Appellate<\/p>\n
Authority, Kalpetta.       Since    facts have been narrated<\/p>\n
correctly in the judgment of the Rent Control Appellate<\/p>\n
Authority and also in the order of the Rent Control Court we<\/p>\n
propose to refer to them only very briefly. The parties are<\/p>\n
being referred to as landlord and tenant respectively.<\/p>\n
     2. The rent control petition was filed by the landlord<\/p>\n
seeking eviction of the tenant on the ground under<\/p>\n
subsection (3) of section 11 of Act 2 of 1965, viz., the<\/p>\n
ground that the petition schedule building is required bona<\/p>\n
fide by the landlord for starting a hardware business for his<\/p>\n
dependent daughter Rahiya and son-in-law Muhammed.<\/p>\n
The landlord alleged that the tenant has got properties and<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                               -2-<\/span><\/p>\n
buildings at Balussery, her home town and that she is<\/p>\n
having income from them. It was alleged that the tenant is<\/p>\n
having buildings having door Nos.226 to 230 and 551 to 555<\/p>\n
in Ward No. VII of Meenangadi Panchayath in addition to<\/p>\n
two other buildings standing in her name.        The landlord<\/p>\n
alleged therefore, that if the tenant wants to shift her textile<\/p>\n
business she has her own building to shift to, and that the<\/p>\n
tenant is not entitled protection for the second proviso to<\/p>\n
subsection (3) of section 11 of Act 2 of 1965.<\/p>\n
     3. The tenant contended that the need put forward by<\/p>\n
the landlord is only a ruse for getting eviction and that the<\/p>\n
landlord’s son-in-law is working in Gulf a country for many<\/p>\n
years and that he has landed properties and business<\/p>\n
establishments at Koduvally his native town, and has no<\/p>\n
need for starting hardware business in the petition schedule<\/p>\n
building. It was alleged that the     rent control petition was<\/p>\n
filed without bonafides in retaliation to the tenant not<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -3-<\/span><\/p>\n
acceding to the landlord’s request for enhancement of rent.<\/p>\n
The tenant denied the allegation regarding the availability of<\/p>\n
buildings with her and contended that the buildings made<\/p>\n
mention of by the landlord are in the possession of tenants<\/p>\n
and that on the basis of an oral partition, those buildings<\/p>\n
have been set apart to the share of the tenant’s daughter.<\/p>\n
     4. The evidence at enquiry by the Rent Control Court<\/p>\n
consisted of the oral testimony of the landlord as PW-1 and<\/p>\n
the testimony of Sri.Sreenivasan, son of the tenant as RW-<\/p>\n
1. Documentary evidence on the side of the landlord<\/p>\n
consisted of Exts.A1 to A6. The tenant’s son Sreenivasan<\/p>\n
was permitted to defend the RCP and to adduce evidence on<\/p>\n
behalf of his mother Devaky, the tenant. The Rent Control<\/p>\n
Court on an evaluation of the evidence found that the need<\/p>\n
put forward by the landlord is bona fide and hence ordered<\/p>\n
eviction under subsection (3) of section 11. The Appellate<\/p>\n
Authority on re-appreciating the evidence concluded that<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                              -4-<\/span><\/p>\n
the finding of the Rent Control Court regarding the<\/p>\n
bonafides of the need was correct. However, on the reason<\/p>\n
that the landlord had prosecuted the rent control petition<\/p>\n
without appointing a guardian for the tenant who is mentally<\/p>\n
incapable of defending herself, it was found that the order<\/p>\n
passed by the Rent Control Court in favour of the landlord<\/p>\n
was hit by Rules 2 and 15 of Order 32 C.P.C. Accordingly<\/p>\n
the order was set aside and the RCP was remitted back to<\/p>\n
the Rent Control Court for fresh disposal in accordance with<\/p>\n
law. In RCR. 36 of 2009 the landlord challenges the order<\/p>\n
of the Rent Control Appellate Authority to the extent the<\/p>\n
eviction order is set aside and matter remanded to the Rent<\/p>\n
Control Court and in RCR. 86 of 2009 the tenant challenges<\/p>\n
the correctness of the findings of the Rent Control Court and<\/p>\n
the Appellate Authority regarding the genuineness of the<\/p>\n
need projected by the landlord.\n<\/p>\n
     5. We have heard the submissions of Sri.T.Krishnan<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -5-<\/span><\/p>\n
Unni, learned senior counsel for the landlord and also those<\/p>\n
of Sri.S.V.Balakrishna Iyer, learned senior counsel for the<\/p>\n
tenant. Mr.Krishnan Unni would submit that the finding of<\/p>\n
the Rent Control Court and the Appellate Authority<\/p>\n
concurrently entered by them that the need projected by<\/p>\n
the landlord under subsection (3) of section 11 is a bona<\/p>\n
fide one is based on acceptable legal evidence and hence<\/p>\n
unassailable. Mr.Krishnan Unni submitted that Rules 2 and<\/p>\n
15 of Order 32 C.P.C. are not at all applicable to<\/p>\n
proceedings before the Rent Control Court and in this<\/p>\n
context he drew our attention to section 23 of Act 2 of 1965.<\/p>\n
According to him only a few provisions of the Code of Civil<\/p>\n
Procedure have been made applicable. The learned senior<\/p>\n
counsel submitted that as far as rent control proceedings<\/p>\n
are concerned it is subrule (8) of Rule 11 of the Kerala<\/p>\n
Buildings (Lease & Rent Control) Rules which governs and<\/p>\n
that the authorities are expected to follow the principles of<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                               -6-<\/span><\/p>\n
equity, justice and good conscience and not the strict<\/p>\n
procedural rules of the Code of Civil Procedure. Mr.Krishnan<\/p>\n
Unni submitted that the tenant’s only son Sreenivasan had<\/p>\n
filed I.A.926\/05 before the Rent Control Court seeking<\/p>\n
appointment of himself as next friend on the reason that his<\/p>\n
mother Devaky was no longer capable of taking care of<\/p>\n
herself and it is considering that IA, that Sreenivasan, DW-1<\/p>\n
was permitted to defend the RCP and to adduce evidence<\/p>\n
for and on behalf of his mother.            Mr.Krishnan Unni<\/p>\n
submitted that Sreenivasan pursued the defence which his<\/p>\n
mother Devaky had taken in the RCP, adduced evidence in<\/p>\n
the RCP and himself filed appeal before the Rent Control<\/p>\n
Appellate Authority in his capacity as the next friend and<\/p>\n
son of Devaky. The finding of the Rent Control Appellate<\/p>\n
Authority that the matter was prosecuted without appointing<\/p>\n
a guardian for the tenant who was alleged to be incapable of<\/p>\n
defending her case is without any basis. In the view of the<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                                  -7-<\/span><\/p>\n
Rent    Control        Appellate  Authority that  conduct    by<\/p>\n
Sreenivasan of his mother’s case without getting himself<\/p>\n
appointed as next friend after an enquiry under rule 15 of<\/p>\n
Order 32 CPC, the appeal which was filed by Sreenivasan<\/p>\n
claiming himself to be the next friend of his mother should<\/p>\n
have been rejected.          Instead the appeal was entertained<\/p>\n
and has now been allowed. The decision of the Appellate<\/p>\n
Authority is most inequitable, so submitted the learned<\/p>\n
senior counsel.\n<\/p>\n<\/p>\n
     6. The submissions of Mr.Krishnan Unni were resisted<\/p>\n
as forcefully as he could, by Sri.S,.V.Balakrishna Iyer,<\/p>\n
learned senior counsel for the tenant. Drawing our attention<\/p>\n
to the order dated 19-10-2005 passed by the Rent Control<\/p>\n
Court in IA.926\/05 Mr.Balakrishna Iyer submitted that<\/p>\n
though the provisions of rules 2 and 15 of Order 32 were<\/p>\n
invoked in that I.A. the Rent Control Court has cautiously<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                               -8-<\/span><\/p>\n
allowed the IA only to the extent of permitting Mr.<\/p>\n
Sreenivasan to conduct the case and adduce evidence for<\/p>\n
and on behalf of his mother Devaky.       The I.A. was never<\/p>\n
allowed as prayed for.      Mr. Balakrishna Iyer would fortify<\/p>\n
his submissions by a catena of decisions. The learned senior<\/p>\n
counsel would cite the judgment of the Supreme Court in<\/p>\n
Gopalan v. Aboobacker (1995 (2) KLT 205) to argue that the<\/p>\n
authorities under the Rent Control Act, the Appellate<\/p>\n
Authorities as well as the Rent Control Courts are not<\/p>\n
persona designata but they are regular Courts which have<\/p>\n
been conferred with the power of adjudicating upon the<\/p>\n
disputes between the landlords and tenants. The learned<\/p>\n
senior counsel submitted that though the Supreme Court<\/p>\n
decision in Gopalan’s case was in the context of the powers<\/p>\n
of the Rent Control Appellate Authority to condone delay<\/p>\n
under section 5 of the Indian Limitation Act, the principles<\/p>\n
laid down in that judgment will abundantly show that the<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -9-<\/span><\/p>\n
Appellate Authorities under the Act are for all practical<\/p>\n
purposes regular civil courts governed by all the provisions<\/p>\n
of the Code of Civil Procedure. Answering the contention of<\/p>\n
Mr.Krishnan Unni that order 32 rule 15 has not been<\/p>\n
mentioned under section 23 Mr.Balakrishna Iyer would<\/p>\n
submit on the authority of the judgment of a Division Bench<\/p>\n
of this Court in Jullunder C. & N.Mfg. Co. v. Jayadevan,<\/p>\n
(1999 (1) KLT 107) that no provision of the Rent Control Act<\/p>\n
runs in conflict with rule 15 of Order 32 CPC and the said<\/p>\n
rule being a procedural provision, its principles can be<\/p>\n
applied to rent control proceedings also. Mr.Balakrishna Iyer<\/p>\n
placed strong reliance on the judgment of Sri.K.Sreedharan,<\/p>\n
J. in Abdul Rehiman v. Hameed Hassan Peruvad & others,<\/p>\n
(1995(2) KLT 794) wherein the learned Judge relying on the<\/p>\n
judgment of the Supreme Court in Gopalan v. Aboobacker,<\/p>\n
(1995(2) KLT 205) held that the Rent Control Court is not<\/p>\n
acting as persona designata but is acting as a regular court.<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -10-<\/span><\/p>\n
Mr.Balakrishna Iyer submitted that the enquiry which is<\/p>\n
contemplated by rule 15 of Order 32 CPC into the alleged<\/p>\n
mental infirmity of a party to the suit was a judicial enquiry<\/p>\n
with notice to the allegedly insane person and any order<\/p>\n
passed against an allegedly insane person without such an<\/p>\n
enquiry will vitiate the order to the extent of making the<\/p>\n
same a nullity. The learned counsel relied on the judgment<\/p>\n
of this court in Balakrishnan v. Kalliyani, (AIR 1957 Kerala<\/p>\n
51) in this context. For the same proposition the learned<\/p>\n
senior counsel relied on the judgment of the Andhra Pradesh<\/p>\n
High Court in Rami Reddi v. Papi Reddi, (AIR<\/a> 1963 A.P.<\/p>\n
160). Strong reliance was placed by the learned counsel on<\/p>\n
the judgment of the Supreme Court in Ram Chandra v.Man<\/p>\n
Singh, AIR 1968 SC 954) in support of the argument that<\/p>\n
decree passed against a lunatic without the appointment of<\/p>\n
a guardian for him as per procedure contemplated under<\/p>\n
rules 3 and 15 of Order 32 is a nullity. To argue that an<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                               -11-<\/span><\/p>\n
enquiry as contemplated by rule 15 of Ordr 32 is mandatory<\/p>\n
and that such an enquiry can be held even at the appellate<\/p>\n
stage Sri.Balakrishna Iyer relied on the judgment of the<\/p>\n
Madras      High      Court in  S.Chattanatha   Karayalar   v.<\/p>\n
Vaikuntarama, (AIR 1968 Madras 346). Mr.Balakrishna Iyer<\/p>\n
submitted that once the court is informed or it comes to the<\/p>\n
notice of the court that a party before the court is by reason<\/p>\n
of unsoundness of mind or otherwise incapable of taking<\/p>\n
care of his interest, it is the court’s duty to hold necessary<\/p>\n
enquiry and appoint guardian or next friend as the case may<\/p>\n
be. Mr. Balakrishna Iyer relied also on the judgment of a<\/p>\n
Division Bench of the Bombay High Court in Somnath v.<\/p>\n
Tipanna, (AIR 1973 Bombay 276).           The learned senior<\/p>\n
counsel relied on the judgment of Kochu Thommen, J. in<\/p>\n
Neroth Oil Mills Co. Ltd. v. Commr. of Income-tax<\/a> (1987 (2)<\/p>\n
KLT 243), of Pareed Pillai, J. in Maideen Bava Rawther v.<\/p>\n
John Xavier, (1990(2) KLT 953) also for the same<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                                -12-<\/span><\/p>\n
proposition.       Strong reliance was placed by the learned<\/p>\n
senior counsel on the judgment of a Full Bench of this Court<\/p>\n
in Pankajaksha Kurup v. Fathima,<\/a> (1998(1) KLT 668 (F.B)<\/p>\n
wherein their Lordships of the Full Bench have held that if a<\/p>\n
decree is passed against a minor without appointing a<\/p>\n
guardian, the decree is a nullity and hence void and not<\/p>\n
merely voidable. The learned senior counsel would lastly<\/p>\n
rely on the judgment of the Supreme Court in Kasturi Bai<\/p>\n
and others v. Anguri Chaudhary, (AIR<\/a> 2003 SC 1773) to<\/p>\n
argue that before entering a finding as to whether a party<\/p>\n
was incapable of protecting his interest by reason of his<\/p>\n
mental infirmity, an enquiry had to be conducted by the trial<\/p>\n
court itself.\n<\/p>\n
     7. Mr.Balakrishna Iyer would assail the finding of the<\/p>\n
Rent Control Court and the Appellate Authority regarding<\/p>\n
the bonafides of the need projected by the landlord under<\/p>\n
subsection (3) of section 11. But according to us, the<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                               -13-<\/span><\/p>\n
argument of the learned senior counsel in challenge of those<\/p>\n
findings concurrently entered by the courts below were not<\/p>\n
very forceful in view of the well defined contours of this<\/p>\n
court’s powers under section 20 to re-appreciate the<\/p>\n
evidence and substitute        factual  findings  concurrently<\/p>\n
entered by the Rent Control Court and the Appellate<\/p>\n
Authority on the basis of evidence recorded in the case.<\/p>\n
     8. We have very anxiously considered the rival<\/p>\n
submissions addressed before us by the learned senior<\/p>\n
counsel for the landlord and the tenant respectively. It is by<\/p>\n
now trite that the Rent Control Court and the Appellate<\/p>\n
Authority adjudicating disputes between landlords and<\/p>\n
tenants function not as persona designata and are<\/p>\n
discharging for all practical purposes judicial functions which<\/p>\n
are to be discharged by them in other adjudicatory<\/p>\n
jurisdictions      including the   regular  civil  jurisdiction.<\/p>\n
Nevertheless it cannot be gainsaid that the Rent Control<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -14-<\/span><\/p>\n
Court and the Appellate Authority are statutory courts to be<\/p>\n
governed primarily by the provisions of the statute which<\/p>\n
creates them. It was fairly conceded by Mr.Balakrishna Iyer<\/p>\n
that he was unable to come across any decision either of<\/p>\n
the Supreme Court or of this Court or for that matter of any<\/p>\n
other High Court wherein it is held that all the provisions of<\/p>\n
the Code of Civil Procedure are applicable to proceedings<\/p>\n
before the Rent Control Court and the Appellate Authority.<\/p>\n
Section 23 of Act 2 of 1965 is the one provision which<\/p>\n
extends certain provisions vested in Courts governed by<\/p>\n
Code of Civil Procedure while trying suits to the Rent Control<\/p>\n
Court and the Appellate Authority.         Order 32 CPC is<\/p>\n
conspicuously absent among the powers enumerated in<\/p>\n
clauses (a) to (k) of subsection (1) of section 23. A learned<\/p>\n
Judge of this Court, Sri.M.P.Menon, J. in Cheru Ouseph v.<\/p>\n
Kunjipathumma,<\/a> (1981 KLT 495) held that in respect of<\/p>\n
procedural matters all powers which are not specifically<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -15-<\/span><\/p>\n
denied by the statute or the statutory rules should be<\/p>\n
vouchsafed to a Tribunal like the Rent Control Court so that<\/p>\n
the Tribunal can effectively exercise its functions which are<\/p>\n
essentially judicial in nature. The statutory rules are the<\/p>\n
Kerala Buildings (Lease and Rent Control) Rules 1979<\/p>\n
framed by the Government by virtue of its powers under<\/p>\n
section 31 of the Act. In the statutory rules also, we do not<\/p>\n
find any specific provision pertaining to filing of rent control<\/p>\n
petitions by or against minors and persons of unsound mind.<\/p>\n
It can never be in doubt that it may become necessary to<\/p>\n
institute rent control petitions against minors and also<\/p>\n
against persons who are of unsound mind at the time of<\/p>\n
such institution or comes to be of unsound mind during the<\/p>\n
course of the proceedings.       What is the course to be<\/p>\n
adopted when a rent control petition is instituted by or<\/p>\n
against a person who is alleged to be a minor or of unsound<\/p>\n
mind is the question which naturally arises.        Minors and<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                                  -16-<\/span><\/p>\n
persons of unsound mind being persons under legal<\/p>\n
disability    cannot     institute   rent control petitions  by<\/p>\n
themselves nor can rent control petitions be instituted<\/p>\n
against them in their own names. According to us, in such<\/p>\n
situations the provisions of Order 32 to the extent they do<\/p>\n
not conflict with any of the provisions in Act 2 of 1965 or the<\/p>\n
Kerala Buildings (Lease and Rent Control) Rules can be<\/p>\n
followed. At the same time, the Rent Control Court and the<\/p>\n
Appellate Authority should not be unmindful of subrule (8)<\/p>\n
of rule 11 which specifically enjoins on them the obligation<\/p>\n
to follow the principles of justice, equity and good<\/p>\n
conscience in preference to the technicalities of procedural<\/p>\n
law.\n<\/p>\n
     9. It is common ground that the tenant Smt.Devaky<\/p>\n
was a person of sound mind at the time she was served with<\/p>\n
notice of the RCP and when she filed the statement of<\/p>\n
objections in the RCP.         On going through the statement<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                                -17-<\/span><\/p>\n
objections      filed    by Smt.Devaky   we   notice  that  all<\/p>\n
conceivable contentions have been raised by her.           The<\/p>\n
situation of Smt.Devaky coming to lose the soundness of<\/p>\n
her mind is a development subsequent to the institution of<\/p>\n
the RCP. Mr. Sreenivasan who has filed RCR. 86\/09 is the<\/p>\n
only son of Smt.Devaky. Mr. Sreenivasan is admittedly the<\/p>\n
one person who has all along been doing business on behalf<\/p>\n
of his aged mother, in the petition schedule building. Mr.<\/p>\n
Sreenivasan informed the Rent Control Court through the<\/p>\n
affidavit which he filed in support of I.A.926\/05 that his<\/p>\n
mother is no longer a sound person and that she is being<\/p>\n
treated by a Psychiatrist.      This affidavit was attested by<\/p>\n
none other than the advocate who was thitherto appearing<\/p>\n
on behalf of Smt.Devaky.        Smt.Devaky herself figured as<\/p>\n
the petitioner in the IA which was filed by the very same<\/p>\n
advocate.      It was the power under     rule 15 of Order 32<\/p>\n
C.P.C. which was specifically invoked in the IA. The prayer<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -18-<\/span><\/p>\n
in the IA was that Sreenivasan, the son of the tenant be<\/p>\n
permitted to pursue the tenant’s defence in the RCP as her<\/p>\n
guardian. Along with the IA medical certificates issued by<\/p>\n
the Psychiatrist who was treating Smt.Devaky was also<\/p>\n
produced. The submission of the learned counsel for the<\/p>\n
landlord is that when an affidavit was filed by the only son<\/p>\n
of the tenant stating that his mother is no longer a sound<\/p>\n
person and when it was         seen that the affidavit was<\/p>\n
supported by medical certificate issued by a Psychiatrist who<\/p>\n
has good reputation in the locality, the landlord did not feel<\/p>\n
like filing any counter. This is the order which was passed<\/p>\n
by the Rent Control Court on the above IA.\n<\/p>\n
       “This petition coming on this day for hearing before
\n       me in the presence of Sri.Rajesh K., advocate for the
\n       petitioner and Sri.P. Chathukutty, advocate for
\n       respondent\/petitioner and on the same day the court
\n       passed the following:\n<\/p><\/blockquote>\n
                               ORDER<\/p>\n
        Heard. Allowed. Petitioner Sreenivasan is permitted
\n        to conduct the case, adduce evidence for and on<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                               -19-<\/span><\/p>\n
       behalf of his mother Devaky. Hence IA closed.”<\/p><\/blockquote>\n
      10. It is true that the above order does not in so<\/p>\n
many words appoint Sreenivasan as the guardian of his<\/p>\n
mother. But the order allows the application and we are<\/p>\n
inclined to accept the submission of Mr.Krishnan Unni that<\/p>\n
the above order virtually appointed Sreenivasan as the<\/p>\n
guardian at litem for his mother on his application. What<\/p>\n
is more important is that it was on the strength of the above<\/p>\n
order that Sreenivasan was permitted to adduce evidence in<\/p>\n
the case. Though for the filing of the IA Sreenivasan had<\/p>\n
taken the services of his own advocate one Mr.Rajesh, once<\/p>\n
the IA was allowed Sri.P.C.Gopinath, Advocate who had<\/p>\n
entered appearance for his mother himself was permitted by<\/p>\n
Mr. Sreenivasan to pursue the contest. Importantly, even<\/p>\n
after the IA was filed the very same contentions which were<\/p>\n
raised    by the        tenant who had personally    engaged<\/p>\n
Sri.P.C.Gopinath as her counsel to defend the RCP were<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                              -20-<\/span><\/p>\n
allowed to be pursued through Mr.P.C.Gopinath himself. It is<\/p>\n
seen that Mr.Gopinath cross-examined the landlord PW-1<\/p>\n
and he only argued the case on behalf of the tenant. In<\/p>\n
other words, at all material times Sri.P.C.Gopinath remained<\/p>\n
the counsel of the tenant Smt.Devaky before the Rent<\/p>\n
Control Court. We are highlighting this only because, on a<\/p>\n
survey of the Kerala Buildings (Lease and Rent Control)<\/p>\n
Rules it appears to us that a party’s counsel before the Rent<\/p>\n
Control Court is given a slightly more important role than<\/p>\n
that of the counsel for a party in a regular suit. We notice<\/p>\n
that while the Code of Civil Procedure and the Civil Rules of<\/p>\n
Practice insist on the pleadings being signed and verified by<\/p>\n
the party, in terms of rule 7 of the Kerala Buildings (Lease<\/p>\n
and Rent Control) Rules it will suffice if rent control petition<\/p>\n
is signed either by the petitioner or by his counsel. What<\/p>\n
has happened in this case is that Mr. Sreenivasan, the only<\/p>\n
son of the tenant reported to the Rent Control Court before<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                              -21-<\/span><\/p>\n
it started the enquiry in the case that his mother, the tenant<\/p>\n
was no longer capable of taking care of her interest in the<\/p>\n
subject matter of the RCP in view of unsoundness of mind.<\/p>\n
His report was accepted by the Rent Control Court and Mr.<\/p>\n
Sreenivasan took advantage of the order passed by the<\/p>\n
court in the application filed by him seeking his own<\/p>\n
appointment as his mother’s guardian. It was by virtue of<\/p>\n
that order itself that Mr. Sreenivasan could file the appeal.<\/p>\n
But for that order, the appeal filed by Sreenivasan was liable<\/p>\n
to be thrown out as appeal filed by an unauthorised person.<\/p>\n
The question before us is whether we should approve the<\/p>\n
decision of the Appellate Authority to set aside the order of<\/p>\n
the Rent Control Court on the only ground that the tenant<\/p>\n
was not represented by a lawfully constituted guardian<\/p>\n
despite unsoundness of mind. It is clear to our mind that it<\/p>\n
will be against all tenets of      equity, justice and good<\/p>\n
conscience to grant approval to the decision taken by the<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                                 -22-<\/span><\/p>\n
Rent    Control       Appellate Authority  in the    facts  and<\/p>\n
circumstances which obtain in this case.\n<\/p>\n
     11.      While addressing the specific question as to<\/p>\n
whether it is necessary to follow the procedure envisaged by<\/p>\n
Order 32 in rent control petitions which are filed by or<\/p>\n
against minors or persons of unsound mind our answer is<\/p>\n
that substantially the same procedure should be adopted,<\/p>\n
though not in strict terms of the rules in Order 32. This<\/p>\n
means that when rent control petitions are filed by or<\/p>\n
against minors or persons of unsound mind a next<\/p>\n
friend\/guardian will have to be permitted\/appointed for the<\/p>\n
minor or person of unsound mind as the case may be. It will<\/p>\n
have to be ensured that the         person permitted to function<\/p>\n
as next friend or appointed as guardian is qualified to be so<\/p>\n
permitted\/appointed.        In the case of persons of unsound<\/p>\n
mind, enquiry akin to the one contemplated by rule 15 of<\/p>\n
Order 32 should also be conducted by the Rent Control<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                              -23-<\/span><\/p>\n
Court or the Appellate Authority as the case may be. It is<\/p>\n
settled by a line of decisions that ordinarily any enquiry<\/p>\n
under Rule 15 of Order 32 can be conducted only with notice<\/p>\n
to the allegedly unsound person. His presence in the court<\/p>\n
should be procured by the court which shall conduct a voir<\/p>\n
dire so as to become convinced prima facie regarding the<\/p>\n
correctness or otherwise of the allegation regarding the<\/p>\n
soundness of his mind. Lastly if it comes to that, the court<\/p>\n
can refer him to a doctor or a team of doctors.     It would<\/p>\n
appear as if no such enquiry comparable to the one which is<\/p>\n
contemplated by rule 15 of Order 32 has been conducted in<\/p>\n
this case and hence the order of the Rent Control Appellate<\/p>\n
Authority is only to be sustained.     We however, are not<\/p>\n
inclined to sustain the order of the   Rent Control Appellate<\/p>\n
Authority in view of the following reasons:<\/p>\n
     1. Though in IA. No.926\/05 it was rule 5 of Order 32<\/p>\n
which was specifically invoked by Mr. Sreenivasan, the son<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                              -24-<\/span><\/p>\n
of the tenant it is clear to us that the Rent Control Court<\/p>\n
allowed that application by invoking its inherent powers as a<\/p>\n
judicial tribunal cast with a duty to adjudicate the disputes<\/p>\n
between landlords and tenants.\n<\/p>\n
     2. Though the Rent Control Court did not insist on the<\/p>\n
attendance of the allegedly unsound person, the tenant, or<\/p>\n
conduct a voir dire by putting questions to that person to be<\/p>\n
satisfied prima facie regarding the soundness of the mind of<\/p>\n
the person that court had medical certificate produced by<\/p>\n
Sreenivasan, the son of the tenant strongly supporting the<\/p>\n
allegation in the affidavit that his mother due to<\/p>\n
unsoundness of mind is no longer capable of taking care of<\/p>\n
her interest. It was considering that medical certificate also<\/p>\n
that the court became inclined to allow the application.<\/p>\n
     3. Regarding the correctness of the averments in the<\/p>\n
affidavit submitted by Sreenivasan in support of IA.<\/p>\n
No.926\/05 there was complete agreement between the<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -25-<\/span><\/p>\n
parties before the Rent Control Court. To a specific query<\/p>\n
put by us, Sri.S.V.Balakrishna Iyer, learned senior counsel<\/p>\n
for the tenant would submit that even if we were to order<\/p>\n
attendance of the allegedly insane person the tenant and<\/p>\n
conduct a voir dire we will be convinced that Smt.Devaky,<\/p>\n
the tenant even now continues to be a person of unsound<\/p>\n
mind.\n<\/p>\n
     4. It is common ground that Smt.Devaky, the tenant<\/p>\n
and Sreenivasan, her son have no conflicting interest in the<\/p>\n
subject matter of the rent control proceedings, the building.<\/p>\n
In fact the admissions and the evidence will reveal that the<\/p>\n
business is being carried on by Sreenivasan himself in the<\/p>\n
building on behalf of the tenant by Sreenivasan himself and<\/p>\n
that it is the personal interest of Sreenivasan also, that<\/p>\n
adverse order against the tenant in the RCP is averted.<\/p>\n
     5. The evidence will reveal that Sreenivasan did not<\/p>\n
leave any stone unturned in substantiating the contentions<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -26-<\/span><\/p>\n
which had been raised by his mother in the RCP and that he<\/p>\n
decided to have the case conducted by the very same<\/p>\n
advocate who had been engaged by his own mother.<\/p>\n
     6. The rent control appeal was preferred against the<\/p>\n
eviction order passed by the Rent Control Court by<\/p>\n
Sreenivasan styling himself as the next friend of his mother<\/p>\n
on the strength of the order passed by the Rent Control<\/p>\n
Court in I.A. 926\/05. Even RCR No. 86\/09 is filed before<\/p>\n
this Court by Mr. Sreenivasan in the same capacity. Though<\/p>\n
not in so many words, the Rent Control Court by allowing<\/p>\n
the IA filed by Mr. Sreenivasan has appointed Mr.<\/p>\n
Sreenivasan as the guardian at litem for his insane mother.<\/p>\n
     7. No prejudice whatsoever has been occasioned to<\/p>\n
the tenant Devaky or her son Sreenivasan by the non-<\/p>\n
conduct of a full-fledged enquiry under rule 15 of Order 32<\/p>\n
CPC by the Rent Control Court.     In the instant case the<\/p>\n
unsoundness of Smt.Devaky’s mind is conceded by all<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                             -27-<\/span><\/p>\n
parties and established by the medical evidence put in by<\/p>\n
Sreenivasan, Devaky’s only son and de-facto guardian. At<\/p>\n
any rate it is inequitable to set aside the order of eviction<\/p>\n
passed in favour of the landlord accepting a contention by<\/p>\n
Mr. Sreenivasan who is beneficiary of the order passed by<\/p>\n
the Rent Control Court in IA. No. 926\/05.\n<\/p>\n
     12. The result of the above discussions is that RCR. No.<\/p>\n
86 of 2009 stands dismissed.      RCR. No. 36 of 2009 will<\/p>\n
stand allowed. The judgment of the Rent Control Appellate<\/p>\n
Authority to the extent it vacates the order of eviction<\/p>\n
passed by the Rent Control Court is set aside. The order of<\/p>\n
the Rent Control Court passed under subsection (3) of<\/p>\n
section 11 is restored. Respondent is given time till 15-11-<\/p>\n
2009 to vacate the premises subject to the following<\/p>\n
conditions.\n<\/p>\n
     Sri.Sreenivasan S\/o Devaky, who is the next friend of<\/p>\n
the respondent Devaky shall file an affidavit stating that he<\/p>\n
RCR. N0s. 36 & 89 of 2009
\n                                -28-<\/span><\/p>\n
shall vacate the RCP schedule building peacefully and put<\/p>\n
the revision petitioner in possession of the same on or<\/p>\n
before 15-11-2009 and that he will discharge arrears of rent<\/p>\n
if any, and will continue to pay rent which falls due<\/p>\n
subsequently in respect of the building. Affidavit as directed<\/p>\n
shall be filed on or before 30th May, 2009.          If such an<\/p>\n
affidavit is filed the building in question will not be delivered<\/p>\n
over to the revision petitioner before 16-11-2009.<\/p>\n
                            (PIUS C.KURIAKOSE, JUDGE)<\/p>\n
                            (C.K.ABDUL REHIM, JUDGE)<\/p>\n
ksv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Abdul Asees vs Devaki on 8 April, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 36 of 2009(E) 1. ABDUL ASEES, S\/O.AHAMMEDKUTTY, … Petitioner Vs 1. DEVAKI,W\/O.NARAYANAN,PADAMBATH,BALUSSERY … Respondent For Petitioner :SRI.R.RAMADAS For Respondent :SRI.K.JAYAKUMAR The Hon’ble MR. Justice PIUS C.KURIAKOSE The Hon’ble MR. Justice C.K.ABDUL REHIM Dated :08\/04\/2009 O […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-190543","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAbdul Asees vs Devaki on 8 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abdul-asees-vs-devaki-on-8-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abdul Asees vs Devaki on 8 April, 2009 - 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