Remanded

M.M. Thomas, v. A.K. Rajagopalan

Kerala HC4 Aug 2023RCRev./131/2023

Case brief

AI extract

What is this about?

This High Court of Kerala held that an appeal under Section 18 of the Kerala Buildings (Lease and Rent Control) Act is maintainable against a Section 12(1) order deciding jurisdiction and liabilities. The court remanded the case for fresh consideration and referred the legal issue to a Larger Bench.

What did the court decide?

Order of the Rent Control Court set aside and matter remanded for fresh consideration within three months. Legal issue referred to Larger Bench.

M.M. Thomas, Vs A.K. Rajagopalan — Civil Procedure and Limitation | Kerala HC (2023)

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RC(Rev.)No.131 of 2023

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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 A.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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FRIDAY, THE 4^TH DAY OF AUGUST 2023 / 13TH SRAVANA, 1945

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RCREV. NO. 131 OF 2023

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AGAINST THE ORDER IN RCP 26/2022 OF THE RENT CONTROL COURT

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(ADDITIONAL MUNSIFF), KANNUR

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RCA 43/2023 OF THE RENT CONTROL APPELLATTE AUTHORITY/

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ADDITIONAL DISTRICT JUDGE IV, THALASSERY

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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M.M. THOMAS,S/O.JOSEPH,AGED 56 YEARS MADATHINA MATTATHIL, EDAYAR, MANANTHERI AMSOM, CHITTARIPARAMBA DESOM, KANNAVAM P.O., KANNUR, PIN - 670650

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BY ADVS. BEJOY JOSEPH P.J. BALU TOM M.RAMESH CHANDER (SR.) BONNY BENNY GOVIND G. NAIR

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RESPONDENT/PETITIONER:

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A.K. RAJAGOPALAN,AGED 62 YEARS S/O.K.V.NARAYANAN NAMBIAR, SWETHA NIVAS", MAYYIL P.O., KANNUR - 670602 BY ADVS. B.KRISHNAN R.PARTHASARATHY

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.07.2023, THE COURT ON 04.08.2023 DELIVERED THE FOLLOWING:

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A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ

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… ...................................................

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RC(Rev.)No.131 of 2023

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… .............................................................. Dated this the 4th day of August, 2023

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ORDER

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Mohammed Nias. C.P. J.

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The revision petitioner is the tenant/respondent in RCP No.26 of 2022 on the file of the Rent Control Court (Additional Munsiff), Kannur, a proceeding instituted by the respondent herein/landlord claiming eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). Pending the proceedings, the landlord filed an application, IA No.1 of 2022 under Section 12 of the Act, for a direction to the tenant-petitioner to pay the arrears of Rs.46,10,000/- alleging that the same is the rent due from the tenant.

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The tenant objected to the same, contending that the Rent Control Petition itself was not maintainable as he was granted permission to run a crusher unit pursuant to a licence agreement dated 7.11.2016 for a period of five years subject to the conditions therein. The said deed stipulated that the tenant would pay Rs.1,30,000/- every month, but as per clause 6, if the

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crusher unit could not be conducted for more than 15 days, the rent for the said period need not be paid. The tenant further contended that due to their difference of opinion, the respondent gave in writing to the Geologist to cancel the permit, and accordingly, the same was cancelled, and the unit could not function thereafter. The respondent tried to evict the petitioner, forcing him to approach the civil court, and an exparte injunction was also granted, which is pending. In short, the tenant's contention was there was no payable rent or licence fee to the petitioner, and the contention that rent was in arrears from 01.01.2017 to 1.1.2018 was denied. The further contention of the landlord that the tenant had not paid rent from 1.1.2017 to 1.1.2018 at the rate of Rs.1,30,000/- or thereafter at the rate of Rs.1,75,000/-.was also denied. It is also the contention of the tenant that he had invested around Rs.3,50,00,000/- for erecting fresh machinery.

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The Rent Control Court found, as per order dated 23.2.2023, that the landlord-tenant relationship is admitted by the respondent in his counter statement and that the respondent had also admitted the rate of rent and the increase to Rs.1,75,000/- and therefore, the admitted rate of rent was Rs.1,75,000/-. Therefore, on the assumption that the revision petitioner admits the landlord-tenant relationship and that the admitted rate of rent is Rs.1,75,000/- though the agreement was not produced by the landlord at the time of filing the petition and it is not known whether the respondent had produced the same, the trial court directed the petitioner herein to pay rent at the rate of Rs.1,75,000/- from 1.1.2021. It is also the direction to pay the rent from November 2021 to January 2023 at the rate

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of Rs.1,75,000/- per month in lump sum (arrears of rent) within four weeks with a further direction to continue the pay the same rent within 15 days from the date on which it falls due. The said order of the Rent Control Court, purportedly under Section 12(1), was challenged before the Rent Control Appellate Authority and Additional District Judge IV, Thalassery, in Rent Control Appeal No.443 of 2023, wherein the appellate court relying on the judgment in Siddharthan v. Hassankutty Haji [1994 (2) KLT 419] found that no appeal would lie against a procedural order, which did not determine the rights of the parties finally or one which cannot be said to affect some right or liability and accordingly held that the appeal was not maintainable and dismissed the same. Aggrieved by the same, this revision is filed.

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Learned counsel for the petitioner argues that the order impugned before the appellate authority is clearly wrong. The rejection of the appeal as not maintainable is equally wrong as the finding that the rate of rent or the total dues payable has not attained finality, and therefore, it cannot be challenged under Section 18 of the Act is wrong. It is also argued that the Rent Control Court passed the order without evidence, as the petitioner did not produce the agreement between the parties. The jurisdiction of the Rent Control Court to decide the dispute was questioned, and the terms of the agreement were also not considered before passing the impugned order.

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We have heard Sri. Ramesh Chander, instructed by Sri.Bejoy, Joseph, and Sri.Balu Tom and Sri. B. Krishnan, who appeared on behalf of the respondent.

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Learned senior counsel for the petitioner argues that the order of the appellate authority holding that appeal against the order under Section 12(1) of the Act is not maintainable is clearly erroneous. He argues that the said order did contain findings on the question of jurisdiction, on the question of the rate of rent as well as the period from which it was allegedly due, and these matters cannot be said to be procedural or not affecting the right or liabilities of the parties. According to him, Section 18(1) enables him to file an appeal against an order that decides the rights of the parties. The judgment in Siddharthan (supra) does not lay down the correct law, and the dismissal of the appeal relying on the said judgment is to be interfered with.

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On the other hand, the learned counsel for the respondent Sri.B.Krishnan argues that the order now passed is not final and that the petitioner will get a chance to challenge the correctness of the order if ultimately an order under Section 12(3) is passed, and in an appeal against an order under Section 12(3) he can also canvass the correctness of the order passed under Section 12(1) of the Act and therefore, the finding of the Rent Control Appellate authority in the appeal against the order under Section 12(1) of the Act as not maintainable calls for no interference.

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Having heard the rival contentions on the question of maintainability of the appeal as aforesaid, we have to note our reservations on the judgment of the appellate authority as well as on the judgment in Siddharthan (supra) that was relied on by the appellate authority.

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The learned counsel for the respondent-landlord contended on the basis of the judgment in Siddharthan (supra) that no appeal would lie against an order passed under Section 12(1) of the Act as no rights are decided. This Court had relied on the judgment of the Supreme Court reported in Central Bank Of India v Shri Gokal Chand ( AIR 1967 SC 799), which held that only those orders affecting some right or liability are amenable to appeal. He also cites the judgment in Sathyaseelan and others v. Chengot Abdul Samad and others [2021 (1) KLT 795] which also held that an appeal would lie under Section 18 of the Act only if some rights are decided. The same proposition is seen laid in the judgment reported in Basil. N.M. v. Regional Sports Centre, Kadavanthra [2023 (2) KLT 804]

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However, the learned senior counsel for the tenant-appellant argues that the judgments above cited only held that an appeal is maintainable only when rights are decided. He argues on the basis of the judgment of the Supreme Court in Central Bank of India (supra) that the Supreme Court had cataloged certain cases where it held that no rights are decided and, therefore, no appeal lies. Those were cases like an order

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summoning witnesses, order for discovery, production or inspection of documents, issue of commission for inspection of the premises, fixing a date of hearing, admissibility of a document, relevancy of a question, etc. It is true that in those cases, no rights are decided finally and that in an appeal against the final order, parties get a chance to challenge those findings rendered at the interlocutory stage. He, however, argues that in the instant case, the very jurisdiction of the Rent Control Court, the arrears of rent, etc. were in dispute, and by the impugned order, the same has been decided erroneously and in such cases, it cannot be said that the rights of the tenant are not affected, more so, when the question of jurisdiction is found against him, and if it were found in his favour, the whole proceedings before the Rent Control Court would have been terminated. He also relies on the judgment of this Court in Basil. N.M .(supra) contends that the question of whether an order affects the parties' rights has to be decided on a case-to-case basis, and no straight jacket formula can be evolved.

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After hearing the rival submissions, we are of the view that in cases like the instant one, which did decide the rights of the parties, it cannot be said that an appeal is not maintainable going by the language used in Section 18. Section 18 is not confined to an appeal against orders ordering eviction, and the meaning of Section 18 in plain words cannot be restricted as such. We note that the cases cataloged by the Supreme Court in the judgment reported in Central Bank of India (supra), which has been followed in all the subsequent decisions, clearly showed that they

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were interlocutory orders not affecting any right of the parties and still further they were all open to be challenged when the final order is to be challenged. In the instant case, we find that the order did decide the question of jurisdiction and the arrears without considering the impact of the deed executed between the parties. In such cases, we cannot subscribe to the view that the tenant has to suffer an order under Section 12(3) of the Act and then file an appeal challenging the order passed under Section 12(1) also, as the same will result in a miscarriage of justice in cases where the impugned order decides the rights and liabilities of the parties. We, therefore, feel that the judgment in Siddharthan (supra), which another Division Bench followed in R.C.R. 174/2021, requires a re-consideration by a Larger Bench. Though we feel that the view taken in the above judgments is against the plain terms of Section 12 and Section 18, since a Division Bench rendered those judgments, we deem it appropriate to refer the issue as regards the maintainability of an appeal against an order passed under Section 12(1) of the Act and also for deciding the correctness of the judgment in Siddharthan (supra) that holds such appeals to be not maintainable, to the Honourable Chief Justice to constitute a larger Bench for deciding the same.

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However, that does not detain us from interfering with the order passed by the trial court under Section 12(1) in the instant case, as the same does not reflect any consideration of the rival contentions. Though the appeal was dismissed as not maintainable in view of the judgment of

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this Court in Siddharthan (supra), the parties need not await the answering of the reference since we are setting aside the order of the Rent Control Court on another point. Accordingly, we set aside the order passed by the trial court dated 23.02.2023 and remit the same for fresh consideration, in accordance with law, within an outer time limit of three months from the receipt of a copy of this judgment.

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The Rent Control (Rev.) is disposed of as above.

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Sd/- A.K. JAYASANKARAN NAMBIAR JUDGE

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Sd/- MOHAMMED NIAS C.P. JUDGE

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dlk/15.7.2023

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