Allowed

Thresia v. K.V. Kesava Mallan

Kerala HC8 Jul 2009CRP/2657/2001

Case brief

AI extract

What is this about?

The High Court allowed civil revision petitions, setting aside an eviction order due to misjoinder of causes of action in a single rent control petition against multiple tenants. The court permitted fresh separate petitions and tentatively fixed future rent at Rs. 600 per month.

What did the court decide?

Eviction order set aside; respondent permitted to file fresh separate Rent Control Petitions; monthly rent tentatively fixed at Rs. 600 with effect from 01/08/09.

Thresia Vs K.V. Kesava Mallan — Landlord and Tenant | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931

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CRP.No.2657 of 2001(D)

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----------------------------RCP.68/1997 of ADDL.MUNSIFF COURT (RENT CONTROL),KOCHI RCA.41/2001 of D.C. & SESSIONS COURT, ERNAKULAM

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REVN. PETITIONER(S):- (1ST RESPONDENT IN RCA.41/01 OF THE DISTRICT COURT, ERNAKULAM AND IN RCP.68/97 OF THE RENT CONTROL COURT, KOCHI)

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--------------------------------------------------------------------------------

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THRESSIA, WIFE OF CHACKO OF VAZHAPILLI HOUSE, NOW RESIDING IN AROOR VILLAGE IN CHERTHALA TALUK.

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BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT

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RESPONDENT(S):- [APPELLANT IN THE RCA.41/01 OF DISTRICT COURT, ERNAKULAM AND PETITIONER IN RCP.68/97 OF RENT CONTROL COURT, KOCHI]

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K.V.KESAVA MALLAM, S/O VENKITESWARA MALLAN, KONGINISSERI PARAMBIL, PALLURUTHY, KOCHI TALUK, KOCHI - 682 006.

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ADV. SRI.P.F.THOMAS, SENIOR ADVOCATE FOR R SRI.SUNIL THOMAS SRI.JOJI SUNIL SMT.A.K.RANI

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, ALONG WITH CRP NO. 3118 OF 2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ.

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C. R. P. Nos.2657 & 3118 of 2001

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Dated this the 8^th day of July, 2009

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ORDER

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Pius C. Kuriakose, J

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Under challenge in these revision petitions is the

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common judgment of the Rent Control Appellate Authority ordering eviction on the ground of bona fide own occupation. The CRP No.3118/01 is filed by the second respondent in the RCP while CRP No.2657/01 is filed by the first respondent in the RCP. The second respondent in the RCP had taken a specific contention that the Rent Control Petition filed as a single petition for evicting two tenants occupying different portions of a larger building belonging to the landlord is not maintainable in law due to the vice of misjoinder of causes of action. He had also contended that the RCP

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C. R. P. Nos.2657 & 3118 of 2001 -2-

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is not maintainable for non-joinder of necessary parties since according to him, the real tenant was not him but his brother Alphonse. Both these contentions were practically accepted by the Rent Control Court. The evidence adduced by the petitioner in CRP No.3118/01 in support of his contention that the real tenant was his brother Alphonse was Exts.B14 and B15 as well as Ext.B5 series. Exts.B14 and B15 were

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certified copies of the Property Tax Assessment Register pertaining to the building in question maintained by the Cochin Corporation and those documents revealed that Alphonse, brother of the second respondent in the RCP is in possession of that building as tenant. Ext.B5 series were triplicates of the treasury challan receipts pertaining to remittance of licence fee for doing business in the building in

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C. R. P. Nos.2657 & 3118 of 2001

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question and going by those documents the Corporation licensee of the business carried on in the building was Sri.Alphonse and not Sri.Job, the second respondent. Thus, Exts.B14, B15 and B5 series gave strong support to the contention of Job that the real tenant in possession was Alphonse and not Job. The Rent Control Appellate Authority, however, would reverse the finding of the Rent control Court regarding the identity of the tenant and hold that Job himself is the tenant. This was done by relying Ext.A8 letter which indicates that the tenant was Job and not Alphonse. In the light of the decision that we are taking in these CRPs, we are not deciding the question as to whether it was the second respondent in the RCP or his brother Alphonse who was the tenant of the building sought to be evicted from the second

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C. R. P. Nos.2657 & 3118 of 2001

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respondent. But we will only observe that Exts.B14 and B15 being documents coming within the ambit of Section 26 of Act 2 of 1965 are documents which enjoyed very strong statutory presumptions regarding the correctness of the entries therein unlike Ext.A8.

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As already stated another contention which was prominently and initially raised by Job, the petitioner in CRP No.3118/01 is that the RCP is not maintainable in view of misjoinder of causes of action. The above contention ought to have been upheld in view of the authoritative pronouncement by a Full Bench of this Court in Jamal v. Safia Beevi (2005(2) KLT, 365).

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Sri.Shiju Varghese, the learned counsel for the respondent submitted that it has been found by the Rent Control Court that the contention regarding

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C. R. P. Nos.2657 & 3118 of 2001 -5-

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misjoinder of causes of action raised by Job is not a serious contention. He argued that no evidence was

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adduced by the second respondent in the RCP to substantiate that contention. We cannot agree. It was on a reference made by a Division Bench that the issue came up before the Full Bench. The Full Bench answered the issue in the following terms:-

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“(i) Landlord can unite several causes of action against single tenant if he is occupying the same building in the event of which there will not be misjoinder of causes of actions and misjoinder of parties since tenant is single tenant occupying the same structure.

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(ii) Landlord can prefer an application under S.11 (4)(iv) against various tenants who are occupying distinct portions of the same structure since the

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C. R. P. Nos.2657 & 3118 of 2001

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tenants are jointly interested in the causes of action and the defence available to all the tenants would be by and large common and hence, there will not be any misjoinder of causes of actions or misjoinder of parties.

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(iii) Landlord cannot unite different causes action in a single petition filed against various tenants whether they are in occupation of same building or different building. Such a petition would be bad for misjoinder of causes of actions and misjoinder of parties.

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(iv) Objection as to the misjoinder of causes of

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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

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been caused to the parties.

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C. R. P. Nos.2657 & 3118 of 2001

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(v) Rent Control Court can consolidate the

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applications for eviction if there are similarity or identity of the matters in issue in the petitions which is

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to be left to the discretion of the Rent control Court, depending upon the facts and circumstances of each case.”

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It is not in dispute that the second respondent

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in the RCP raised this contention seriously at the earliest opportunity when he filed a statement of objection to the RCP. It is also clear from the judgment of the Rent Control Court and the Appellate Authority that he went on pursuing the contention. Question of adduction of evidence to substantiate the contention to decide whether any prejudice has been caused arises only in cases where no contention as such is raised. The judgment of the Full Bench has to

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C. R. P. Nos.2657 & 3118 of 2001

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be followed and it has to be held that the Rent Control Petition which is filed as a single petition seeking eviction of two tenants governed by two separate tenancies is bad for misjoinder of causes of action and hence, not maintainable in law. The order of eviction passed by the Appellate Authority on a Rent Control Petition which is not maintainable in law has necessarily to be set aside. We set aside the judgment of the Rent Control Appellate Authority and the order of the Rent Control Court and dispose of the CRPs permitting the respondent/landlord to file fresh and separate Rent Control Petitions against the tenants on all available grounds. We have not decided the question as to who is the tenant of the building sought to be evicted from the second respondent in the RCP. But we feel having regard to Exts.B14, B15 and B5

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C. R. P. Nos.2657 & 3118 of 2001

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series that it would be ideal if the respondent/landlord

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arrays Sri.Alphonse also as a party in the fresh RCP

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which he may file in respect of that building.

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We are informed that the contract rent which

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is being paid monthly by the tenants in occupation of the two rooms which are subject matter of the RCP is only Rs.60/- per mensm. It is not in dispute that these rooms are situated close to Palluruthy Nada. According

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to learned counsel for the landlord going by the current rates, if these buildings are let out now, they should fetch monthly rent ranging between Rs.3,000/and Rs.4,000/-. Though we feel that there is a little bit of exaggeration in the version of the learned counsel for the respondent, we are of the view that the sum of Rs.60/- paid now is far below the fair rent which is payable for the building. Considering the location of

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C. R. P. Nos.2657 & 3118 of 2001 -10-

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the building and the obvious position that each building has got roughly 200 sq. ft. of carpet area, we tentatively re-fix the monthly rent payable by the tenants in occupation of the two rooms at Rs.600/per mensem prospectively with effect from 1^st of August, 2009. The tenants concerned will be liable to pay rent at that rate with effect from that date. It is open to either of the parties to move the competent court for fixation of fair rent. Our fixation of rent is without prejudice to that right.

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These CRPs are allowed. The respondent is permitted to file fresh Rent Control Petitions against the tenants in respect of the buildings arraying all necessary parties on all available grounds. Rent payable by the tenant for each of the building is fixed tentatively at Rs.600/- mensem with effect from

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C. R. P. Nos.2657 & 3118 of 2001

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01/08/09. The tenant shall pay rent at the above rate thereafter unless fixed otherwise by a competent court.

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PIUS C. KURIAKOSE JUDGE

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P. Q. BARKATH ALI JUDGE

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kns/-

Thresia v. K.V. Kesava Mallan

Case brief

What is this about?

What did the court decide?

Thresia v. K.V. Kesava Mallan

Case brief

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What did the court decide?

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