{"id":87466,"date":"2011-01-05T00:00:00","date_gmt":"2011-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/akbar-ali-vs-u-narayanankutty-on-5-january-2011"},"modified":"2019-02-06T03:16:50","modified_gmt":"2019-02-05T21:46:50","slug":"akbar-ali-vs-u-narayanankutty-on-5-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/akbar-ali-vs-u-narayanankutty-on-5-january-2011","title":{"rendered":"Akbar Ali vs U.Narayanankutty on 5 January, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
Akbar Ali vs U.Narayanankutty on 5 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 3 of 2011()\n\n\n1. AKBAR ALI, S\/O.SULAIMAN, RESIDING AT\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. U.NARAYANANKUTTY, S\/O.K.S.UNNIKRISHNAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.V.CHITAMBARESH (SR.)\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice N.K.BALAKRISHNAN\n\n Dated :05\/01\/2011\n\n O R D E R\n                       PIUS C. KURIAKOSE &\n                      N.K.BALAKRISHNAN, JJ.\n                -----------------------------------------------\n                R.C.R.Nos.3,7,8,9,10,11 & 12 of 2011\n                -----------------------------------------------\n\n               Dated this the 5th day of January, 2011.\n\n                                O R D E R\n<\/pre>\n
Balakrishnan, J.\n<\/p>\n<\/p>\n
      The short point that arises for consideration in these seven<\/p>\n
Rent Control Revisions is whether the order for joint trial and<\/p>\n
the consequent order of eviction passed by the learned Rent<\/p>\n
Controller u\/s.11(3) of Act 2\/65 which was confirmed in appeal<\/p>\n
by the learned Appellate Authority suffer               from the vice of<\/p>\n
illegality, irregularity or impropriety warranting invocation of the<\/p>\n
revisional jurisdiction of this Court under S. 20 of the Act.<\/p>\n
      2. Eight Rent Control Petitions were filed by the same<\/p>\n
landlord against different tenants inter alia raising the common<\/p>\n
ground for eviction under S.11(3) of the Act. All the petition<\/p>\n
R.C.R.3\/2011 and connected cases   2<\/p>\n
schedule rooms form part of the ground floor of a larger building.<\/p>\n
The common ground urged by the landlord is that he requires all<\/p>\n
the petition schedule buildings\/rooms for the purpose of<\/p>\n
conducting a departmental store. It was averred that in order to<\/p>\n
conduct a departmental store,        necessary    modifications and<\/p>\n
alternations will be effected by him after the buildings are got<\/p>\n
vacated. Against some of the       tenants apart from Section 11(3),<\/p>\n
other grounds like Section 11(4)(iii) and 11(4)(v) were also<\/p>\n
projected.\n<\/p>\n
      3. All the eight Rent Control Petitions were jointly tried and<\/p>\n
a common order of eviction was passed         by the Rent Control<\/p>\n
Court on the ground of bonafide need and on other grounds also.<\/p>\n
      4.   The respondent in R.C.P.No.1\/2008 did not file any<\/p>\n
appeal. It is reported that he subsequently vacated the building<\/p>\n
held by him.\n<\/p>\n
      5. The appeals filed by other seven tenants were dismissed<\/p>\n
by the learned Appellate Authority confirming the order of eviction<\/p>\n
R.C.R.3\/2011 and connected cases   3<\/p>\n
under Section 11(3) of the Act.        Challenging the    concurrent<\/p>\n
verdicts the tenants have come up in revision. They contend that<\/p>\n
the joint trial allowed by the Rent Controller is unsustainable since<\/p>\n
there is differentiality in the defensive pleas taken by the tenants<\/p>\n
and that merely because all the rooms are under the common roof<\/p>\n
belonging to the same landlord, it cannot be held that the petitions<\/p>\n
can be jointly tried.\n<\/p>\n
      6. Sri. V.Chitambaresh, learned senior counsel has relied<\/p>\n
upon the decision in Ebrahim Ismail Kunju v. Phasila Beevi<\/a><\/p>\n
[1991(2) KLT 861] and submitted that since the common ground<\/p>\n
urged by the landlord is under Section 11(3), the tenants can have<\/p>\n
different defensive pleas pertaining to the second proviso to<\/p>\n
Section 11(3) and the evidence that can be let in by the tenants to<\/p>\n
prove entitlement of the benefit under the second proviso must<\/p>\n
certainly vary depending upon the various         defences taken by<\/p>\n
them. In Ebrahim Ismail Kunju v. Phasila Beevi<\/a> [1991(1) KLT<\/p>\n
861] this Court was considering a case where there were two<\/p>\n
R.C.R.3\/2011 and connected cases    4<\/p>\n
landlords. Smt.Phasila Beevi was the landlady in one case and her<\/p>\n
husband was the landlord in the other two cases. They filed a<\/p>\n
petition for joint trial. In that case it was found that a joint trial<\/p>\n
would work out serious prejudice to the parties and therefore it<\/p>\n
was held that order for joint trial cannot be sustained. But here, the<\/p>\n
landlord is the same. The decision in Ebrahim Ismail Kunju v.<\/p>\n
Ogasuka       Beevi<\/a> (cited supra) was followed in Sasidharan v.<\/p>\n
Saroja<\/a> (2004(2) KLT 885). That decision was also relied upon<\/p>\n
by the learned senior counsel for the revision petitioner, where it<\/p>\n
was held:\n<\/p>\n
         “Landlord in all       the cases is the same.\n<\/p>\n
         Tenants are different. Need urged is also<\/p>\n
         the same. That by itself, in our view, is not<\/p>\n
         sufficient to order a joint trial. A Division<\/p>\n
         Bench     of this Court in Ibrahim     Ismail<\/p>\n
         Kunju v. Phasila Beevi,<\/a> 1991(1)KLT<\/p>\n
         861,while dealing with the scope of Section<\/p>\n
R.C.R.3\/2011 and connected cases    5<\/p>\n
         23 of Act 2 of         1965 in a case where<\/p>\n
         eviction was sought for under Section 11<\/p>\n
         (3) held that the mere fact that three shop<\/p>\n
         rooms are under a common roof would not<\/p>\n
         justify the running of a joint trial”.\n<\/p>\n
       7. It may be remembered that the decision in Sasidharan’s<\/p>\n
case was rendered as the application        for joint trial was opposed<\/p>\n
and not in a case like this, where the application was not opposed<\/p>\n
at all and the parties lay by it and submitted to the jurisdiction and<\/p>\n
suffered the orders of eviction after a full fledged enquiry. Not<\/p>\n
only that, no contention was raised in the appeal that any prejudice<\/p>\n
was caused to them because of joint trial. Therefore, the decision<\/p>\n
in Sasidharan’s case cited supra also has no application to the<\/p>\n
facts of this case.\n<\/p>\n
      8. The learned counsel for the landlord has pointed out that<\/p>\n
when joint trial petition was filed by the landlord, the same was<\/p>\n
not opposed by the tenants. The further fact is that only one of<\/p>\n
R.C.R.3\/2011 and connected cases   6<\/p>\n
the tenants raised the plea of protection under the second proviso<\/p>\n
to Section 11(3) but he could not succeed because of the fact that<\/p>\n
he could not prove the second ingredient of the second proviso to<\/p>\n
Section 11(3).          The learned counsel therefore submits that<\/p>\n
objection raised for the first time before this Court regarding<\/p>\n
joint trial must necessarily fail.\n<\/p>\n
       9. The decision in Abdul Aziz v. Shankaran [2002(2) KLT<\/p>\n
613] can also be referred to. That was a case where the tenants in<\/p>\n
the two RCPs filed by the same landlord were brothers who<\/p>\n
subsequently jointly constructed a building in the same town and<\/p>\n
the landlord therein sought eviction of those tenants under Section<\/p>\n
11(4)(iii) of the Act. When application for joint trial was filed, it<\/p>\n
was allowed by the trial court holding that joint trial of the two<\/p>\n
cases would minimise the evidence and would be convenient for<\/p>\n
both the parties. It was further held in the aforesaid case that the<\/p>\n
Rent Control Court has inherent power to direct joint trial of cases<\/p>\n
if the joint trial will sub-serve the interest of the parties and is<\/p>\n
R.C.R.3\/2011 and connected cases   7<\/p>\n
necessary in the interest of justice.   There    is   no     statutory<\/p>\n
prohibition for ordering joint trial. The Rent Control Court would<\/p>\n
normally be in a position to modulate its procedures in such a<\/p>\n
manner as to best sub-serve the interest of the litigants.     Every<\/p>\n
issue regarding joint trial has to be decided on its own merit. In<\/p>\n
the case on hand, facts to be proved to substantiate the claim for<\/p>\n
eviction in all the petitions are the same.\n<\/p>\n
      10. The main thrust of the argument advanced by the learned<\/p>\n
Senior counsel appearing for the revision petitioners is that since<\/p>\n
each of the tenants would be entitled to claim protection under the<\/p>\n
second proviso to Section 11(3) the evidence that can be adduced<\/p>\n
by each of them, at least with regard to the first limb of the second<\/p>\n
proviso would be certainly different. But even then it is not a case<\/p>\n
where any prejudice would be caused to the tenant because<\/p>\n
entitlement of the second proviso to Section 11(3) claimed by each<\/p>\n
of the tenant may have to be considered independently and<\/p>\n
separately. If any of the tenants could succeed in establishing that<\/p>\n
R.C.R.3\/2011 and connected cases   8<\/p>\n
he was mainly depending on the income derived from the business<\/p>\n
carried on in the petition schedule building and if he proves that<\/p>\n
there were no suitable buildings available in the locality at the<\/p>\n
relevant time he may have to be granted protection under the<\/p>\n
second proviso which can never depend upon the rejection, if any<\/p>\n
of a similar claim made by other tenants under the second proviso<\/p>\n
to Section 11(3). A piquant situation may arise where there are<\/p>\n
two or more tenants occupying separate portions under the same<\/p>\n
roof and more than one tenant out of them could succeed in<\/p>\n
proving the first limb of the second proviso but only one suitable<\/p>\n
vacant room was available in the locality at the relevant time; then<\/p>\n
who has to be given the protection or deny the protection under<\/p>\n
the second proviso may be a pertinent question. But here, that<\/p>\n
situation does not arise. Even in a situation as mentioned above<\/p>\n
prejudice may be caused only to the landlord and not to the<\/p>\n
tenant, as the benefit may have to be given to the tenant.<\/p>\n
R.C.R.3\/2011 and connected cases   9<\/p>\n
      11.    The decision in Mohammed Salim v. Habeeb &<\/p>\n
Company<\/a> [2002(2) KLT 93] was rendered in a case in which the<\/p>\n
common ground for eviction was reconstruction under Section 11<\/p>\n
(4)(iv) of the Act. In that case it was held that the facts were in<\/p>\n
favour of allowing a joint trial application as evidence regarding<\/p>\n
the present condition of the building, approval of plan, licence etc.<\/p>\n
are the same and that allocation of the reconstructed         building<\/p>\n
would also be more convenient for the tenants if the cases are<\/p>\n
jointly tried. It was further observed that to avoid conflict of<\/p>\n
findings and save the time of the court also joint trial is convenient.<\/p>\n
The learned Senior Counsel for the revision petitioners would<\/p>\n
strenuously argue that the ingredients to prove the ground under<\/p>\n
Section 11(4)(iv) are totally different and that the evidence to be let<\/p>\n
in such a case is common and that no prejudice will be caused to<\/p>\n
the tenant in such cases since there can be no difference in the<\/p>\n
defensive pleas, but when the ground for eviction is under Section<\/p>\n
R.C.R.3\/2011 and connected cases   10<\/p>\n
11(3) there would be difference in the defensive pleas especially<\/p>\n
when the respective tenants put forward claim for protection under<\/p>\n
the second proviso to Section 11(3) of the Act.<\/p>\n
      12. Another decision of this Court in Sasikumar v. Sheeba<\/p>\n
[2009(4) KLT 384] [in which one of us was a party – Pius C.<\/p>\n
Kuriakose, J.] has also been referred to in this connection. There<\/p>\n
also, the ground for eviction was under Section 11(4)(iv) of the<\/p>\n
Act. It was held in that case that objections as to misjoinder of<\/p>\n
causes of action and misjoinder of parties should be taken at the<\/p>\n
earliest opportunity failing which the court could not interfere<\/p>\n
unless it is shown that serious prejudice has been caused to the<\/p>\n
parties. The Division Bench       followed the Full Bench decision in<\/p>\n
Jamal v. Safia Beevi<\/a> [2005(2) KLT 359 (F.B.)].<\/p>\n
      13. The Full Bench decision in Jamal v. Safia Beevi<\/a> [2005<\/p>\n
(2) KLT 359 (F.B.)] was rendered pursuant to a reference made by<\/p>\n
a Division Bench for a decision on the question as to whether a<\/p>\n
single Rent Control Petition can be maintained for evicting two<\/p>\n
R.C.R.3\/2011 and connected cases   11<\/p>\n
tenants covered by two different tenancy arrangements on the same<\/p>\n
or several grounds of eviction. Out of the five answers given by<\/p>\n
the Full Bench to the reference, the fourth answer given is<\/p>\n
regarding the misjoinder of causes of action and misjoinder of<\/p>\n
parties. It was held :\n<\/p>\n
      “(iv) Objection as to the misjoinder        of causes of<\/p>\n
      actions and misjoinder of parties should be taken at the<\/p>\n
      earliest opportunity, failing which Court would not<\/p>\n
      interfere unless it is shown that serious prejudice has<\/p>\n
      been caused to the parties.\n<\/p><\/blockquote>\n
      (v)    Rent    Control     Court can    consolidate   the<\/p>\n
      applications for eviction if there are similarity or<\/p>\n
      identity of the matters in issue in the petitions which is<\/p>\n
      to be left to the discretion of the Rent Control Court,<\/p>\n
      depending upon the facts and circumstances of each<\/p>\n
      case.”\n<\/p><\/blockquote>\n
The 5th answer given by the Full Bench as quoted above would<\/p>\n
support the view that there can be consolidation of applications for<\/p>\n
eviction if there are similarity or identity of the matters. In the<\/p>\n
present case admittedly objection regarding misjoinder of causes<\/p>\n
R.C.R.3\/2011 and connected cases   12<\/p>\n
of action and misjoinder of parties was not raised either before the<\/p>\n
Rent Control Court or before the Appellate Authority and has been<\/p>\n
raised for the first time before this Court in revision. Therefore<\/p>\n
objection now raised regarding the procedure followed by the<\/p>\n
learned Rent Controller having a joint enquiry after allowing the<\/p>\n
petition filed by the landlord for that purpose is unsustainable.<\/p>\n
The fact that no objection was raised before the Rent Control Court<\/p>\n
or before the Rent Control Appellate Authority according to the<\/p>\n
learned Senior counsel appearing for the petitioners can not save<\/p>\n
the situation or come to the rescue of the landlords since it affects<\/p>\n
the very jurisdiction of the Rent Control Court to have a joint trial.<\/p>\n
We are not persuaded to accept that submission. The jurisdiction<\/p>\n
of the Rent Control Court was not affected because joint trial was<\/p>\n
not opposed at all.\n<\/p>\n
       14. The bonafide need projected by the landlord in all these<\/p>\n
petitions is common that all the petition schedule buildings\/rooms<\/p>\n
under the same roof are required for conducting a departmental<\/p>\n
R.C.R.3\/2011 and connected cases   13<\/p>\n
store for which the landlord says that after getting eviction the<\/p>\n
intervening walls would be removed. That is the case set up by the<\/p>\n
landlord in all the rent control petitions. As regards the claim<\/p>\n
under Section 11(3) the defence raised by all the tenants is<\/p>\n
common.       It was held by the Apex Court in Om Prakash<\/p>\n
Srivastava v. Union of India and<\/a> another [2007(2) SCJ 263] :<\/p>\n
      “The cause of action has no relation to the defence that<\/p>\n
      may be set up by the defendant nor does it depend upon<\/p>\n
      the character of the relief prayed for by the plaintiff”<\/p><\/blockquote>\n
      15. This decision was followed by the Division Bench of this<\/p>\n
Court in Kunhamu v. Arun Kumar<\/a> [2010(3) KLT 640] which<\/p>\n
was authored by one among us [Pius C. Kuriakose, J.]. So far as<\/p>\n
the ground under Section 11(3) in this case is concerned, the cause<\/p>\n
of action is the conception of a need in the mind of the landlord to<\/p>\n
occupy the entire building for the purpose of conducting<\/p>\n
department stores in the whole of the larger building.<\/p>\n
      16. The learned counsel for the revision petitioners would<\/p>\n
submit that when the decision of a coordinate Bench of the same<\/p>\n
R.C.R.3\/2011 and connected cases     14<\/p>\n
High Court was brought to the notice of another Bench, it is to<\/p>\n
be respected and is binding. If the other Bench wants to take a<\/p>\n
different view or to doubt the correctness of the earlier decision,<\/p>\n
the course open to the later Bench is to refer the question to a<\/p>\n
larger Bench.      In support of his submission, the learned senior<\/p>\n
counsel has relied upon the decision in U.P. Gram Panchayat<\/p>\n
Adhikari Sangh v. Daya Ram Saroj<\/a> (2007) 2 Supreme Court<\/p>\n
Cases 138, where it was held in paragraph 26:\n<\/p>\n
          “Judicial discipline      is self-discipline. It is an<\/p>\n
          inbuilt mechanism in the system itself.       Judicial<\/p>\n
          discipline     demands that when the decision of a<\/p>\n
          coordinate Bench of the same High Court is<\/p>\n
          brought to the notice of the        Bench, it is to be<\/p>\n
          respected and is binding, subject of course, to the<\/p>\n
          right    to take a different view or to doubt the<\/p>\n
          correctness of the decision and the permissible<\/p>\n
          course then open is to refer the question or the case<\/p>\n
          to a larger Bench. This is the minimum discipline<\/p>\n
          and     decorum       to be  maintained    by  judicial<\/p>\n
          fraternity”.\n<\/p><\/blockquote>\n
R.C.R.3\/2011 and connected cases    15<\/p>\n<\/blockquote>\n
      17. The argument put forward by the learned senior counsel<\/p>\n
is that if this Court wants to take a different view than what was<\/p>\n
taken in Ebrahim Ismail Kunju v. Phasila Beevi<\/a> (1991(1) KLT<\/p>\n<\/blockquote>\n
861) and Sasidharan v. Saroja<\/a> (2004(2) KLT 885), the proper<\/p>\n
course is to refer the question, whether a joint trial of two or<\/p>\n
more petitions filed by the same landlord against different tenants<\/p>\n
occupying      portions      of a larger building for bonafide own<\/p>\n
occupation under S.11(3) is maintainable, to a larger Bench so as<\/p>\n
to have an authoritative pronouncement on that point and set at<\/p>\n
rest   the controversy.         But this argument has been      taken<\/p>\n
exception by the learned counsel for the landlord pointing out the<\/p>\n
inapplicability of the decision to the facts of this case since in the<\/p>\n
present case no objection as to misjoinder of the causes of action<\/p>\n
was taken by the tenants either before the Rent Control Court or<\/p>\n
before the Appellate Authority and also in view of the later<\/p>\n
decision rendered by the Division Bench in Kunhamu v. Arun<\/p>\n
R.C.R.3\/2011 and<\/a> connected cases    16<\/p>\n
Kumar (2010(3) KLT 640). The Supreme Court decision in Om<\/p>\n
Prakash Srivastava cited supra would also run counter to the<\/p>\n
plea of prejudice put forward by the tenants.<\/p><\/blockquote>\n
      18. As stated above, there is concurrent finding by the two<\/p>\n
Courts with regard to the bonafide need projected by the landlord<\/p>\n
that he requires the building for starting a department store after<\/p>\n
effecting alterations and modifications.       We have gone through<\/p>\n
the order of the learned Rent Controller and the judgment of the<\/p>\n
learned Appellate Authority. We are reminded of the contours of<\/p>\n
our revisional jurisdiction under Section 20 of the Act. There is<\/p>\n
no illegality, irregularity or impropriety in the finding entered by<\/p>\n
the courts below.       Since the tenants could not succeed in proving<\/p>\n
the two ingredients required for the protection of the second<\/p>\n
proviso to Section 11(3), the orders of eviction passed in all the<\/p>\n
cases have to be sustained.\n<\/p>\n
      19. Sri.Chitambaresh, learned senior counsel for the revision<\/p>\n
petitioners made a fervent appeal to grant two years time to the<\/p>\n
R.C.R.3\/2011 and connected cases   17<\/p>\n
tenants to vacate the premises. This request is strongly opposed<\/p>\n
by the learned counsel for the landlord. Since the tenants are<\/p>\n
conducting business in some of the rooms, we find that it is just<\/p>\n
and proper to grant them time till 31.12.2011 subject to certain<\/p>\n
conditions. We also notice that the rent that is paid by some of<\/p>\n
the tenants is too low. Since all the rooms are having almost<\/p>\n
identical space, we think it proper to fix the monthly occupation<\/p>\n
charges at Rs.1500\/- in respect of each of the rooms. It shall be<\/p>\n
paid with effect from 01.02.2011.\n<\/p>\n
      20. The result therefore is:\n<\/p>\n
      The revision petitions will stand dismissed.    The revision<\/p>\n
petitioners are granted time till 31.12.2011 to vacate  the petition<\/p>\n
schedule buildings on the following conditions:<\/p>\n
  The tenants\/revision petitioners shall file affidavits before the<\/p>\n
Execution Court within three weeks from today undertaking to<\/p>\n
give peaceful surrender of the petition schedule building to the<\/p>\n
respondent\/landlord on or before 31.12.2011. The tenants shall<\/p>\n
R.C.R.3\/2011 and connected cases   18<\/p>\n
also undertake through the same affidavits that          occupation<\/p>\n
charges at the rate of Rs.1,500\/- per month will be promptly<\/p>\n
paid with effect from 01.02.2011 as and when it falls due.<\/p>\n
        We     make it clear that the revision petitioners would be<\/p>\n
entitled to get the benefit of      extension of time    only if the<\/p>\n
affidavits are filed within three weeks from today and           the<\/p>\n
undertakings given by them are honoured.\n<\/p>\n<\/p>\n
                                            PIUS C. KURIAKOSE,
\n                                                           JUDGE.\n<\/p>\n
\n                                           N.K.BALAKRISHNAN,
\n                                                            JUDGE<\/p>\n
rka<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Akbar Ali vs U.Narayanankutty on 5 January, 2011 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. […]<\/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-87466","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAkbar Ali vs U.Narayanankutty on 5 January, 2011 - 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\/akbar-ali-vs-u-narayanankutty-on-5-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Akbar Ali vs U.Narayanankutty on 5 January, 2011 - 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