Monday, 16 December 2019

Nature of title to be proved by landlord for getting eviction decree against tenant

As regards the legal status of the landlord to claim eviction, this Court has come to a definite finding that what matters is not the absolute title over the property in question, but his legal right to claim eviction as landlord under the provisions of the Act. After examining the various decisions of the Hon'ble Supreme Court and this Court on the point, we have come to a finding that the landlord in this case would satisfy the definition of "landlord" under the Act, and that the question of absolute title claimed by him as the adopted son of the original landlord will have to be decided by the competent civil court. In paragraph 19 of the common order dated 14.2.2019 in R.C.R. Nos. 210/2016 and 215/2016, this Court found thus, "the jurisdiction of the Rent Control Court is only to decide, whether the petitioner is entitled to get an order of eviction on any of the grounds as a "landlord", and not whether the petitioner has the legal right and status to claim eviction. That will have to be decided by the competent civil court." In paragraph 16 of the order also, this Court has found as follows, "whether the petitioner has proprietary title, or whether he can claim title as the adopted son of Subhalakshmi Ammal must be left to be decided by the competent civil court."

8. Thus, as discussed above, the right of the landlord to claim eviction was considered in detail by this Court, and this Court has found that he is entitled to claim eviction as landlord, as meant and defined under the Act, though the question of his absolute title as true owner will have to be ultimately decided by the competent civil court.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 RC Rev. 215/2016,

Decided On: 29.08.2019

Jayan Pisharody  Vs.  T.S. Rajagopalan

Hon'ble Judges/Coram:
K. Harilal and P. Ubaid, JJ.

Citation: 2019(1) RCR(Rent) 357 Kerala


1. The petitioners in these four Review Petitions are the revision petitioners in R.C.R. Nos. 210 & 215 of 2016. The respondent in all these petitions is the landlord, who claimed eviction in the trial court, as the adopted son of the original landlady. The review petitioners are the legal heirs of the original tenant R.V. Pisharadi. The landlord sought eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (the Act), and in the eviction proceedings, the tenants made a denial of title of the landlord. Their further case is that, their predecessor R.V. Pisharadi was in fact permitted to occupy the petition schedule building by the original owner Subhalakshmi Ammal, and it was not a lease arrangement. Practically, the tenants contended that there is no landlord-tenant relationship between them and the petitioner, who claimed eviction as landlord.

2. The trial court formulated the points for decision and proceeded for trial. Though the tenants denied the title of the landlord, the Rent Control Court straight away proceeded to record evidence without deciding the issue of denial of title as a preliminary issue. After recording evidence on both sides, the trial court found that the plea of denial of title made by the tenants is not bona fide, and on facts as regards the grounds of eviction, the trial court found partly in favour of the landlord and partly in favour of the tenants. Accordingly, the prayer for eviction under Section 11(2)(b) of the Act was allowed, but the prayer for eviction under Section 11(3) of the Act was disallowed.

3. Aggrieved by the order disallowing eviction under Section 11(3) of the Act, the landlord filed appeal before the appellate authority as R.C.A. No. 32/2013. Aggrieved by the order of eviction under Section 11(2)(b) of the Act, the tenants filed appeal as R.C.A. No. 29/2013. On a re-appraisal of the entire materials, the appellate authority found that the order of eviction under Section 11(2)(b) of the Act is liable to be confirmed, and that the landlord is entitled to get eviction under Section 11(3) of the Act also. Accordingly, the appellate authority allowed R.C.A. No. 32/2013 directing the tenants to vacate the petition schedule building under Section 11(3) of the Act, and dismissed the R.C.A. No. 29/2013, confirming the order of eviction under Section 11(2)(b) of the Act. Aggrieved by the decision of the appellate authority, the tenants brought the above revisions before this Court under Section 20 of the Act. R.C.R. No. 215/2016 was filed against the judgment of the appellate authority in R.C.A. No. 29/2013, and R.C.R. No. 210/2016 was filed against the judgment of the appellate authority in R.C.A. No. 32/2013.

4. In view of the divergent findings of the two learned Judges of the Division Bench before whom the two revisions came up for hearing, the matter was referred to one of us for opinion and decision. By majority decision, the two revision petitions were dismissed by this Court, confirming the order of eviction granted by the courts below under Sections 11(2)(b) and 11(3) of the Act, and also finding that the denial of title made by the tenants is not bona fide. Aggrieved by the majority decision of this Court in the two revisions, the tenants approached the Hon'ble Supreme Court for Special Leave to file appeal. On 15.3.2019, the Hon'ble Supreme Court disallowed the Special Leave Petitions on the finding that there is no ground warranting interference with the order of this Court. However, the Hon'ble Supreme Court granted four months' time to the tenants to vacate the premises, subject to their furnishing an undertaking before the Supreme Court within four weeks, that they will not create any third party rights, they will clear all the rent in the meanwhile, and will peacefully vacate the premises at the end of the four month's period. Much after the dismissal of the Special Leave Petitions, the tenants brought these Review Petitions. R.P. Nos. 636 and 676 of 2019 are to review the orders passed by us in R.C.R. No. 215/2016, and R.P. Nos. 641 and 673 of 2019 are the petitions to review the orders in R.C.R. No. 210/2016.

5. After the dismissal of the Special Leave Petitions, and when the tenants failed to file affidavit as directed by the Hon'ble Supreme Court, the landlord filed Execution Petition before the Principal Munsiff's Court, Thiruvananthapuram as E.P. No. 25/2014. Stating that the Hon'ble Supreme Court has not given any direction as to what shall be done if no undertaking is filed by the tenants, and also on the ground that the time stipulated for vacating the premises was not over, the learned Munsiff declined execution by order dated 24.6.2019. The said order is under challenge in O.P.(R.C.) No. 115/2019, brought under Article 227 of the Constitution of India.

6. We heard the learned counsel on both sides in detail on the question of review, and also on the order of the executing court disallowing execution. The learned counsel for the review petitioners argued very much on the legal right of the landlord to claim eviction, and he also submitted that in view of the provisions in Section 11(16) of the Act, an order of eviction could not have been passed in favour of the claimant.

7. On a perusal of the grounds of review in the four review petitions, we find that mainly and practically, the tenants seek review on factual aspects, as regards the right of the landlord to claim eviction. This Court has considered this issue and has come to a finding that the claim of denial of title made by the respondents is not bona fide at all, and that, the landlord is entitled to get an order of eviction. This Court has considered and decided all the issues including the legal right of the landlord to claim eviction under the Act. As regards the legal status of the landlord to claim eviction, this Court has come to a definite finding that what matters is not the absolute title over the property in question, but his legal right to claim eviction as landlord under the provisions of the Act. After examining the various decisions of the Hon'ble Supreme Court and this Court on the point, we have come to a finding that the landlord in this case would satisfy the definition of "landlord" under the Act, and that the question of absolute title claimed by him as the adopted son of the original landlord will have to be decided by the competent civil court. In paragraph 19 of the common order dated 14.2.2019 in R.C.R. Nos. 210/2016 and 215/2016, this Court found thus, "the jurisdiction of the Rent Control Court is only to decide, whether the petitioner is entitled to get an order of eviction on any of the grounds as a "landlord", and not whether the petitioner has the legal right and status to claim eviction. That will have to be decided by the competent civil court." In paragraph 16 of the order also, this Court has found as follows, "whether the petitioner has proprietary title, or whether he can claim title as the adopted son of Subhalakshmi Ammal must be left to be decided by the competent civil court."

8. Thus, as discussed above, the right of the landlord to claim eviction was considered in detail by this Court, and this Court has found that he is entitled to claim eviction as landlord, as meant and defined under the Act, though the question of his absolute title as true owner will have to be ultimately decided by the competent civil court. The Hon'ble Supreme Court did not find any reason or ground to interfere with the findings of this Court as regards the right of the landlord to claim eviction. We find that the present review petitions are quite experimental, or rather, another attempt to delay the process of execution, or to continue at the premises somehow.

9. Another ground urged by the review petitioners is the application of Section 11(16) of the Act. That provision applies only when the petitioner has claimed eviction as an agent of the landlord. In this case, eviction is not sought by the claimant as an agent of the landlord. He himself claims to be the landlord, or as the person having the right to represent the estate. This issue has already been found in his favour by this Court by majority view. When the court has already come to a finding that the claimant is entitled to claim eviction as landlord, who comes within the definition of "landlord" under the Act, there is no question of applying the provisions of Section 11(16) of the Act, because the claim is not as an agent of the landlord. We fail to understand, why the tenants have projected such a ground in the review applications. This must be as part of a design to continue at the premises somehow by making one or the other claim by way of review or otherwise, and thus to drag on the proceedings for ever without vacating the premises. We are quite unhappy with the conduct of the tenants, who have brought the review petitions with the full knowledge that they cannot obtain orders in review, or that, there is no ground at all for reviewing the orders passed by this court on merits.

10. We do not find any error apparent on the face of the record to review our decisions. The scope of review must be within the confines of Order XLVII Rule 1 of the Code of Civil Procedure. The Supreme Court in Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.) [MANU/SC/0098/1995 : 1995 (1) SCC 170] described the mistake or error apparent on the face of the record thus:- "an error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. In other words an error, which has to be established by long-drawn process of reasoning on points where there may conceivably be two opinions can hardly said to be an error apparent on the face of the record." The tenants have not been able to point out any error or mistake warranting review of the decisions, or to project anything found out as new material, or which went unnoticed by the court while taking decision on merits. When Court has taken a decision on merits, after considering all the relevant aspects and evidence, and when the order stands confirmed by the Supreme Court, a review cannot be thought of. If any person is aggrieved by the decision of the court on merits, the remedy is to approach the higher forum and not to seek review. The findings made by the court on merits, and the decision taken on a consideration of all the relevant aspects and evidence cannot be disturbed or re-opened by way of review. The purpose of review is not to unsettle a position settled and decided by the court. The aggrieved tenants have already approached the Hon'ble Supreme Court against the findings of this Court on merits, but the Supreme Court has declined special leave on the finding that there is absolutely no ground warranting interference in the decisions of this Court. In such a situation, the review petitions are liable to be dismissed. Thus, we find no reason or ground to review our orders granting eviction under Sections 11(2)(b) and 11(3) of the Act, or to review our finding regarding the right of the landlord to claim eviction under the Act. What is intended in these Review Petitions is nothing other than re-writing of the judgment, after a rehearing. The review petitions are meritless and are liable to be dismissed.

11. Now, we come to the question of execution. Of course, the executing court has stated that the application for execution was filed before the expiry of the period granted by the Hon'ble Supreme Court. Any way, now the period is over and the tenants admittedly have not filed such an affidavit or undertaking as directed by the Hon'ble Supreme Court. We are not happy with the way in which the learned Munsiff dealt with the execution matter. We find an instance of failure to exercise jurisdiction on the part of the learned Munsiff. The order of the Hon'ble Supreme Court is very clear that in case the tenants failed to file affidavit within four weeks, the order of eviction can very well be executed. It appears that the learned Munsiff has not understood the spirit and purport of the order of the Hon'ble Supreme Court. The order of the Hon'ble Supreme Court disallowing Special Leave is quite clear that the order of eviction can be executed in case of failure on the part of the tenants to file affidavit as directed. We find that now the order can very well be executed, when the period is over, and the tenants have failed to file affidavit as directed by the Hon'ble Supreme Court. In such a circumstance, the order of the executing court will have to be set aside, directing the executing court to revive the execution proceedings and proceed for execution, according to law.

In the result, all the review petitions are dismissed as meritless. But, O.P.(R.C.) No. 115/2019 is allowed. Accordingly, the order of the executing court dated 24.6.2019 in E.P. No. 25/2014 will stand set aside, and the execution proceedings will stand revived in the executing court. The executing court is directed to proceed for execution according to law, and to dispose of the execution proceedings within six weeks. The tenants cannot be allowed a free ride without making themselves liable for the experiment made by them before this Court by way of review with the full knowledge that they cannot obtain orders in the review petitions. They have been trying all ways possible to continue at the premises, and the present review petitions are also the last attempt to delay the process somehow, or to deny relief to the landlord. On a consideration of the various aspects, we feel it appropriate to direct the review petitioners to pay a cost of Rs. 25,000/- (Rupees Twenty five thousand only) to the respondent (landlord), and we do so.


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