Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943 OP (RC) NO. 11 OF 2021 AGAINST THE ORDER DATED 21.07.2020 IN I.A.NO.1620 OF 2019 IN R.C.(OP)NO.8 OF 2010 OF THE RENT CONTROL COURT, THODUPUZHA PETITIONER: ALIL E.S. AGED 42 YEARS S/O.SAITHU MUHAMMED, EDASSERIL HOUSE, VENGALLOOR P.O.,THODUPUZHA, IDUKKI DISTRICT, PIN - 685 608. BY ADVS. P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER RESPONDENTS:
1 ALIYAR (DELETED) AGED 55 YEARS S/O.ANTHRU, KUPPAKKATTIL HOUSE, PALLIPRAM KARA, MARAMBALLY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN - 683 107. 2 MOIDEEN (DELETED) AGED 58 YEARS S/O.BEERAN, CHERUMMODDAN HOUSE, PALLIPRAM KARA, MARAMBALLY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN - 683 107. (RESPONDENTS R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 11/03/2022 IN IA .2/2022 IN OP(RC) 11/2021.) 3 RAVEENDRAN AGED 72 YEARS S/O.ACHUTHAN, GEETHA BHAVAN HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685 608.
4 GLADY MATHEW AGED 43 YEARS S/O.MATHEW, VEMPILLIL HOUSE, VENGALLOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685 608. BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB REXY ELIZABETH THOMAS THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Anil K. Narendran, J.
The petitioner, who is the additional 3rd petitioner in R.C. (OP)No.8 of 2010 on the file of the Rent Control Court, Thodupuzha, who claims title over the petition schedule property on the strength of a sale deed bearing No.1247 of 2012 of the Sub Registrar Office, Thodupuzha, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P9 order dated 21.07.2020 of the Rent Control Court, Thodupuzha in I.A.No.1620 of 2019 in R.C.(OP)No.8 of
2010. The said Rent Control Petition is one filed by his predecessors-in-interest, namely, respondents 1 and 2, seeking eviction of the 3rd respondent herein-tenant under Section 11(2)
(b) and 11(3) of the Kerala Buildings (Lease and Rent Control)
Act, 1965. The Rent Control Court rejected the claim for eviction under Section 11(3) of the Act and passed an order of eviction under Section 11(2)(b) of the Act. Challenging the order dated 31.01.2011 of the Rent Control Court in R.C.(OP)No.8 of 2010, the petitioner filed R.C.A.No.1 of 2011 before the Rent Control Appellate Authority, Thodupuzha, invoking the provisions under Section 18(1)(b) of the Act, which ended in dismissal by the
judgment dated 05.09.2012. Challenging the said judgment,
R.C.Rev.No.404 of 2012 was filed before this Court. By the order
dated 25.07.2018 in R.C.Rev.No.404 of 2012, this Court remanded the matter to the Rent Control Court for reconsideration and the parties were directed to appear before that court on 17.09.2018. Paragraphs 9 to 13 of that order read thus;
“9. It is true that the paramount title deed of the landlord need not be established in a Rent Control Petition, seeking an order of eviction under Section 11 of the Act and the scope and extent of considerations and interpretations of landlord and tenant must be confined to Sections 2(3) and 2(6) of the Act only. But, in the instant case, the purchase was effected within one year before the institution of the Rent Control Petition and the revision petitioner denied the respondent's title and possession over the petition schedule building. Admittedly, there was no payment of rent as contemplated under Sections 2(3) and 2(6) of the Act. Moreover, according to the revision petitioner, he has been paying rent to Glady Mathew, as she is the title holder in possession of the petition schedule building.
10. The revision petitioner has produced copy of all the
prior title deeds before this Court and drew our attention to Ext.A2 title deed, Ext.A9 title deed and Annexures 4 and 5 the prior title deeds and contended that the respondent's title over the petition schedule building cannot be derived from the prior title deeds.
11. Where title of the landlord over the tenanted building is
denied by the tenant, it is incumbent upon the Rent Control Court to consider and pass orders on the preliminary issue “whether the denial of title is bona fide or not”, invoking the jurisdiction and power under Section 11(1) of the Act. In the instant case, the Rent Control Court has framed such an issue and conducted an enquiry. But, all the prior title deeds were not produced before the Rent Control Court or the Appellate Authority, at the time when the courts below considered the aforesaid question. Therefore, no enquiry was properly conducted on the basis of the prior title deeds of Ext.A9, on the denial of title. The prior title deeds of Ext.A9 are produced before this Court as Annexures A4 and A5. We are of the opinion that the issue whether the denial of title is bona fide or not requires reconsideration in the light of all the prior title deeds of Ext.A9. In the absence of all the prior title deeds of Ext.A2 sale deed before the courts below, we do not find fault with the courts below.
12. But, for the interest of justice, we are inclined to grant
an opportunity to both parties to adduce further evidence on the issue, whether the denial of the tile is bona fide or not? The Rent Control Court is directed to consider the said issue afresh in the light of all the prior title deeds of Ext.A2
sale deed, to be produced by the revision petitioner and further evidence to be adduced by both parties. It is needless to say, after consideration of the said issue afresh, the Rent Control Court is inclined to pass an order, as provided under the second proviso to Section 11(3) (1) of the Act. If the denial of title is bona fide, the Rent Control Court will lose jurisdiction to proceed further. Whereas, if the denial is not bona fide, the Rent Control Court shall proceed further and pass order under Section 11(2)(b) of the Act.
13. In the above view, we set aside the judgments passed
by the courts below in part and the Rent Control Petition is remitted back to the Rent Control Court, for fresh consideration and disposal on the claim for eviction under Section 11(2)(b) of the Act. The order dismissing the claim for eviction under Section 11(3) of the Act will stand as such without disturbance. The order of remand would be confined to fresh enquiry under Sections 11(2)(b) of the Act only, after the determination of the preliminary issue, on the denial of title. The parties are at liberty to adduce further evidence. The Rent Control Court shall pass a fresh order, untrammeled by the observations made by this Court on merits, at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the Rent Control Court on 17.09.2018.”
2. After the order of remand, the 4th respondent herein
filed I.A.No.1620 of 2019 (Ext.P7) before the Rent Control Court in R.C.(OP)No.8 of 2010, seeking an order to get himself impleaded as the additional 2nd respondent. Paragraph 3 of the affidavit filed in support of that interlocutory application reads thus;
“3. The petitioners in OP have no ownership and possession on petition schedule building. The petition schedule building belongs to me and as well as the legal heirs of the deceased V.M. Joseph. I have been receiving the rent from the respondent in the OP and so far no arrears of rent. There is no tenant landlord relationship between the petitioners and respondent in the OP. The above contention is accepted by the Hon'ble High Court in RC (Revision)No.404 of 2012. I am a necessary party in the present Rent Control Petition. The actual state of affairs with regard to the ownership and possession of the petition schedule building is suppressed by the original petitioners. Since I am the owner in possession of the petition schedule building I got to adduce evidence before this Court for the fair disposal of the petition for which i have to be made a necessary party in the original petition. If I am not made a party to the original petition, it will cause irreparable hardships, injuries and loss to me. I have filed a petition to implead me as a additional 2nd respondent in the original petition and that may kindly be allowed.”
3. The petitioner herein filed a detailed objections (Ext.P8) in I.A.No.1620 of 2019, raising various contentions. Paragraphs 2 and 3 of that objections read thus;
“2. The above I.A is not maintainable either in law and on facts. The present petitioner is having no locus standi to file this petition and to be impleaded in the above Rent Control Petition. If, the original respondent is having any dispute over the title of the property, it is his duty to plead and prove the same, with documents and witnesses. The original respondent has all rights to produce a person, who claimed to be the owner of the petition schedule room. Instead of that, the present petition has no right to raise a 3rd party claim or ownership over the petition schedule room, in the above O.P.
3. Moreover, the present petition had filed two another
suits before the Hon'ble Munsiff's Court, Thodupuzha,as O.S.No.186 of 2012 and O.S.No.215 of 2012. The 1 st one is for permanent prohibitory injunction and the later is for cancellation of my title deed and declaration of the title of the present petitioners and others, who claimed to be the legal heirs of one Mr.V.M. Joseph. I was the 4 th defendant in those suits. Both those suits are dismissed with costs to me and there is no appeal was filed by the present petitioner herein so far. Hence, the claim of title over the petition schedule room as well as the property, in which the petition schedule room is situated are already adjudicated by a proper civil court. Hence, this petition is
bad for res judicata and without bona fides. The intention of the plaintiff is to harass me and to prolong the matter anyhow. Now, my vendors also colluded to the present petitioner to conduct claims against me for making illegal gain to them. In all perspectives, the present petitioner is having no locus standi to file this petition and to get impleaded in the above O.P. Hence, the above petition may be dismissed.”
4. By the impugned order dated 21.07.2020 (Ext.P9), the Rent Control Court allowed I.A.No.1620 of 2019 in R.C.(OP)No.8 of 2010. The said order reads thus;
“Heard both side and on hearing the counsel for both parties. This court of the considered view that the petitioner is also to be impleaded in this case for the just disposal of this case and in the interest of justice. In the circumstance, this IA is allowed and the petitioner is allowed to be impleaded in the case.” (underline supplied)
Feeling aggrieved by the order dated 21.07.2020, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article invoking 227 of the Constitution of India of the Constitution of India.
5. On 19.01.2021, when this original petition came up for
admission, this Court admitted the matter on file and issued notice to the respondents by speed post. This Court granted an interim order staying all further proceedings in R.C.(OP)No.8 of 2010 on the file of the Rent Control Court, Thodupuzha, for a period of three months. The said interim order, which was extended from time to time, is still in force.
6. Respondents 3 and 4 entered appearance through counsel. By the order dated 11.03.2022 in I.A.No.2 of 2022, respondents 1 and 2 are deleted from the party array, at the risk of the petitioner.
7. Heard the learned counsel for the petitioner and also the learned counsel for respondents 3 and 4.
8. The issue that arises for consideration in this original
petition is as to whether any interference is warranted, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, on Ext.P9 order dated 21.07.2020 of the Rent Control Court, whereby I.A.No.1620 of 2019 filed by the 4 th respondent herein stands allowed by impleading the said respondent as the 2nd respondent in R.C(O.P)No.8 of 2010.
9. I.A.No.1620 of 2019 is one filed by the 4 th respondent
herein seeking an order to get himself impleaded as additional 2 nd respondent in R.C.(O.P)No.8 of 2010 pending before the Rent Control Court, Thodupuzha. In that I.A the petitioner herein filed a detailed objections raising various legal and factual contentions. A copy of I.A.No.1620 of 2019 is marked as Ext.P7 and a copy of the objections filed by the petitioner herein is marked as Ext.P8. It is without adverting to any of the contentions raised in the objections filed by the petitioner herein against the impleadment of the 4th respondent herein, the court below has passed the impugned order, whereby that application stands allowed by impleading the applicant for the just disposal of this case and in the interest of justice.
10. In Breen v. Amalgamated Engineering Union
[1971 (1) All. E.R. 1148] Lord Denning, M.R. observed that, the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.
11. In Chairman and Managing Director, United
Commercial Bank v. R.C. Kakkar [(2003) 4 SCC 364], following the principle laid down in the decisions referred to above, the Apex Court held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance.
12. In Woolcombers of India Ltd. v. Woolcombers
Workers Union [(1974) 3 SCC 318] the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947 held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions.
13. In Assistant Commissioner, Commercial Tax
Department v. Shukla and Brothers [(2010) 4 SCC 785] the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion, showing proper application of mind. Violation of either of them could, in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction.
14. Ext.P9 order of the court below, which is one passed
without adverting to the legal and factual contentions raised by both sides, cannot be sustained in law in view of the law laid down in the decision referred to supra. In the result, this original petition is allowed by setting aside Ext.P9 order dated 21.07.2020 in I.A.No.1620 of 2019 and by directing the Rent Control Court to reconsider that application with notice to both sides and take an appropriate decision, after adverting to the legal and factual contentions raised by both sides, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this
judgment.
Sd/- ANIL K. NARENDRAN JUDGE Sd/- P.G. AJITHKUMAR JUDGE yd APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PETITION DATED THE FILE OF THE RENT CONTROL COURT, THODUPUZHA. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 25/07/2019 IN R.C.R.NO.404 OF 2012 ON THE FILES OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE I.A.NO.1 OF 2020 IN R.C.(OP) NO.8 OF 2010 ON THE FILE OF THE RENT CONTROL COURT, THODUPUZHA. EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED
(OP) NO.8 OF 2010 ON THE FILE OF THE
RENT CONTROL COURT, THODUPUZHA. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 10/07/2020 IN I.A.NO.1 OF 2020 IN R.C.(OP) NO.8 OF 2010 ON THE FILE OF THE RENT CONTROL COURT, THODUPUZHA. EXHIBIT P6 TRUE COPY OF THE COMMON JUDGMENT IN O.S.NO.196 OF 2012 AND O.S.NO.215 OF 2012 ON THE FILE OF THE MUNSIFF'S COURT, THODUPUZHA. EXHIBIT P7 TRUE COPY OF THE I.A.NO.1620 OF 2019 IN R.C.(OP) NO.8 OF 2010 DATED 07/12/2019 ON THE FILE OF THE RENT CONTROL COURT, THODUPUZHA. EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED R.C.(OP) NO.8 OF 2010 ON THE FILE OF THE RENT CONTROL COURT, THODUPUZHA. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 21/07/2020 IN I.A.NO.1620 OF 2019 IN R.C.(OP) NO.8 OF 2010 ON THE FILE OF THE RENT CONTROL COURT, THODUPUZHA. RESPONDENT'S EXHIBITS:NIL