Allowed

Radhakrishnan v. Vijaya

Kerala HC7 Feb 2013SA/433/2001

Case brief

AI extract

What is this about?

Second Appeal allowed. Held that a tenant can only be evicted under the Buildings (Lease and Rent Control) Act due process. Appeals under the Municipalities Act are not an equally efficacious remedy to prevent immediate dispossession; a permanent prohibitory injunction is granted against unauthorized demolition.

What did the court decide?

Permanent prohibitory injunction granted against defendants from demolishing the plaint schedule building without evicting the tenant under due process of law.

Radhakrishnan Vs Vijaya — Landlord and Tenant | Kerala HC (2013)

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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 N.K.BALAKRISHNAN

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THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934

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SA.No. 433 of 2001 (B)

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---------------------AGAINST THE JUDGMENT IN AS.252/1993 of DISTRICT COURT, PALAKKAD DATED 30-11-2000

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AGAINST THE JUDGMENT IN OS.394/1989 of ADDL.MUNSIFF COURT, PALAKKAD DATED 29-07-1993

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APPELLANT(S):

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RADHAKRISHNAN, S/O.LAKSHMI AMMA, RESIDING AT VADAKKANTHARA AMSOM, PALAKKAD TALUK.

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BY ADV. SRI.T.C.SURESH MENON

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RESPONDENT(S):

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1. VIJAYA, WIDOW OF VIJAYARAMAN

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2. BIJU, S/O. VIJAYARAMAN

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3. SAJEEV, S/O. VIJAYARAMAN

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4. REGHA, D/O. VIJAYARAMAN

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5. R.S.RAJAN, S/O.RAGHAVA PANICKER

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RESPONDENTS 1 TO 5 ARE RESIDING AT VADAKKANTHARA AMSOM, PALAKKAD TALUK.

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SA.No. 433 of 2001 (B)

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6. LAKSHMIKUTTY AMMA, WIDOW OF R.NARENDRAN

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7. REGHU, S/O. R.NARENDRAN

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8. REKHA, D/O. R.NARENDRAN

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9. RAVI, S/O. R.NARENDRAN

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RESPONDENTS 6 TO 9 ARE RESIDING AT PADMA VILLA, PULICKAL LINE, WEST NADAKKAVU, KOZHIKODE.

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R1 TO R9 BY ADVS. SRI.M.N.PRATHAPAN

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SRI.T.K.SHAJI RAJ

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JJJ

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N.K. BALAKRISHNAN, J.

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S.A. No: 433 of 2001

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Dated this the 7^th day of February, 2013

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J U D G M E N T

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The plaintiff in a suit for injunction is the appellant. His

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suit was decreed by the trial court but it was reversed by the appellate court.

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The plaintiff was the tenant under the deceased respondent. Supplemental respondents are the legal heirs of the deceased 1^st respondent. The landlord (1^st respondent) had filed a petition for eviction before the Rent Controller, Palakkad under sections 11(2)(b) and 11(4)(ii) of the Kerala Act 2 of 1965. Commission was taken out by the landlord in that case to prove that the tenant/plaintiff herein used the building in such a manner as to reduce its value and utility materially and permanently. After conducting enquiry the Rent Controller dismissed the petition for eviction as evidence by Ext.A1. The landlord took up the

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S.A. No: 433/2001

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matter in appeal before the Rent Control (Appellate Authority). That appeal was admittedly dismissed by the Rent Control (Appellate Authority).

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This suit was filed by the plaintiff/tenant since the landlord and others attempted to pull down the building which is the subject matter of lease, on the premise that the Municipality had issued a notice to pull down the building stating that the building is in a dangerous position. This, according to the plaintiff, was a notice caused to be issued by the 1^st respondent in order to evict the tenant unauthorisedly by using the office of the Municipality, after the landlord had a successive defeat in the claim for eviction under the provisions of the Buildings (Lease and Rent Control) Act, Kerala Act 2 of 1965. The plaintiff contend that since he is admittedly the tenant he can be evicted only by recourse to the provisions contained in Buildings (Lease and Rent Control) Act. Though the defendant/respondent

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S.A. No: 433/2001

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contended that under the Kerala Municipality Act, the Municipality has got authority to order demolition of the building when it is in a dangerous condition, that contention was negatived by the trial court. Accepting the plaintiff's contention, the suit was dismissed.

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The learned District Judge in appeal found that the plaintiff had an equally efficacious remedy but that was not availed of. In other words, according to the lower appellate court, the plaintiff should have filed appeal against the order of the Municipality and not approached the civil court without exhausting the remedy provided under that Act and so discretionary relief of injunction cannot be granted. Thus allowing the appeal the suit was dismissed.

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The following substantial questions of law were framed in this Second Appeal:

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(i) When the appellant is admittedly a tenant of the plaint schedule building, is the lower appellate

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S.A. No: 433/2001

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court justified in declining the relief of injunction when the respondent/landlord attempted to evict

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the tenant otherwise than under due process of law?

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(ii) When urgent relief against dispossession is claimed, whether the appeal provisions in the Municipalities Act can be treated as an equally and efficacious remedy so as to non-suit the plaintiff?

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Sri. Appu, the learned counsel appearing for the appellant, submits that admittedly the plaintiff is a tenant. Even if it is assumed that the building was old and in a dilapidated condition, that could only be a ground available to the landlord to file a petition for eviction under section 11 (4)(iv) of Kerala Act 2 of 1965. But instead of that the landlord surreptitiously caused a notice to be issued by the Municipality under the pretext that the building is in a dangerous position. But at the same time, the landlord

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S.A. No: 433/2001

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relied upon the Commissioner's report, which was produced in Ext.A1 proceedings, to contend that the building was in a dangerous position. The fact that the Rent Controller and the Appellate Authority did not accept that report to hold that the landlord is entitled to get an order of eviction was ignored by the learned District Judge. It is submitted that on going through the appeal judgment, it can be seen that the learned District Judge was persuaded to hold that the building was in a dangerous condition based on the report submitted by the Advocate Commissioner in Ext.A1 proceedings.

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According to the learned counsel that should not have been acted upon since the Rent Control Court and the Appellate Authority did not find favour with that report so as to order eviction of the tenant. Since Ext.A1 order which was confirmed by the Appellate Authority is binding on the landlord, he cannot get over that order by resorting to a

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S.A. No: 433/2001

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procedure which cannot be recognised by the court of law. Only because a provision is there for filing appeal against the order issued by the Municipal Commissioner, it cannot be said that it is an equally efficacious remedy, for that will not enable the plaintiff/tenant to legally obstruct the landlord from pulling down the tenanted building unauthorisedly. Therefore, the view taken by the appellate court that the plaintiff was having an equally efficacious remedy and since that was not resorted to, the discretionary relief should not be granted to the plaintiff, is devoid of any merit.

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It has already been found that even if an appeal is provided under the Kerala Municipality Act, it is not an efficacious remedy to prevent immediate dispossession and as such the lower appellate court was not justified in nonsuiting the plaintiff on that ground.

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S.A. No: 433/2001

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It was also found that the appellant being the

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tenant can be evicted only under due process of law. The observations made by the Commissioner filed in the R.C.P cannot be a ground to say that the building is in such a dangerous position so as to throw out the plaintiff, who is admittedly a tenant.

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Considering all the aspects, in reversal of the judgment of the appellate court, this Second Appeal is allowed. A permanent prohibitory injunction is granted against the defendants from demolishing the plaint schedule building without getting eviction of the plaintiff/tenant under due process of law. In the circumstances, there shall be no order as to costs.

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Sd/N.K. BALAKRISHNAN, JUDGE

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//True Copy//

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P.A. to Judge

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jjj/das

Radhakrishnan v. Vijaya

Case brief

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Radhakrishnan v. Vijaya

Case brief

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