KATHRINGA Vs. LONAPPAN
LAWS(KER)-1968-11-14
HIGH COURT OF KERALA
Decided on November 19,1968

KATHRINGA Appellant
VERSUS
LONAPPAN Respondents

JUDGEMENT

- (1.) The petitioner who was in occupation of a building in Ward No. 11 of the Trichur Municipality as a tenant on a monthly rent of Rs. 15 was sought to be evicted therefrom at the instance of the 1st respondent who had become the owner of the building by virtue of a transaction of assignment, dated 1st December 1962. The proceeding for eviction was instituted by the 1st respondent before the Rent Control Court, Trichur as RCP. No. 42 of 1963 on 11th June 1963 on the ground that he needed the building bona fide for his own occupation. In defence of the aforesaid application the petitioner had contended in her counter statement that the contract rent was only Rs. 7.50 per month, that she had been in continuous occupation for over 33 years and as such was not liable to be evicted therefrom, that the allegation put forward by the landlord that he needed the building bona fide for his own occupation was not true, that in any event the trade conducted by the petitioner on the premises was her sole means of livelihood and that therefore she should be protected from eviction in as much as she would be deprived of her means of subsistence as a result of her being directed to vacate the building. At the stage of arguments a further contention was raised by the tenant that the proceeding for eviction was not maintainable in view of the specific provision contained in proviso 3 to S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, since the requisite period of one year had not expired from the date of purchase of the premises by the petitioning landlord.
(2.) The Rent Control Court overruled the objection raised by the tenant regarding the maintainability of the petition and upheld the contention of the landlord that the building was required bona fide for his own occupation. It further held that the income from the trade conducted on the premises by the tenant was not her sole means of subsistence and that therefore she was not entitled to protection from eviction under the second proviso to S.11(3) of the Act. Accordingly by the order Ext. P-1, dated the 23rd February 1965, the Rent Controller ordered the eviction of the tenant granting her time till 1st June 1965 to vacate the premises. Against the aforesaid decision the tenant preferred an appeal before the Subordinate Judge of Trichur but by his judgment evidenced by Ext. P-2, dated 28th February 1966 the appellate authority confirmed the decision of the Rent Controller. A further revision petition preferred by the tenant before the District Judge, Trichur also did not meet with any success. Hence the tenant has come forward with this original petition to quash the orders of the Rent Controller, the appellate authority and the District Judge evidenced by Exts. P-1, P-2 and P-3 respectively. Although originally this petition was filed invoking both Art.226 and 227 of the Constitution, in view of the recent Full Bench Decision of this court holding that the District Judge while exercising his revisional jurisdiction under S.20 of the Act functions as a court and since no application for a writ of certiorari can be maintained as against the decision of a subordinate court, counsel for the petitioner has prayed for relief under Art.227 only.
(3.) The main point urged before me by the learned counsel for the petitioner is that the view taken by the three subordinate tribunals that an order for eviction of the tenant could be passed on the petition filed by the landlord before the expiry of the period of one year from the date of the instrument of transfer inter vivos In his favour on the ground that by the time the application came up for disposal before the Rent Controller the aforesaid period of one year had expired, is erroneous and unsustainable in law. It was Very strongly contended that in view of the specific provision contained in the third proviso to S.11(3) there was no proper application at all before the Rent Control Court on Which any valid order for eviction could have been passed by it and that the mere circumstance that the period of one year during which the landlord was incompetent to make the application had expired by the date on which the matter came up for disposal before the Rent Control Court, would not make any difference whatever in the legal position as regards the maintainability of the application. Reliance was placed by the learned counsel on the decision of this court reported in Themmalapuram Bus Transport, Palghat v. Regional Transport Authority, Palghat 1967 KLT 122 FB, where it has been pointed out that it is the ordinary rule that the rights of parties must be determined as on the date of the action and not on the basis of rights which accrued to them after the institution of the proceedings.;


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