NARAYANA PANICKER Vs. DAVEED SAIT
LAWS(KER)-1968-3-21
HIGH COURT OF KERALA
Decided on March 08,1968

NARAYANA PANICKER Appellant
VERSUS
Daveed Sait Respondents

JUDGEMENT

- (1.) This writ petition arises out of proceedings for eviction commenced under the Kerala Buildings (Lease and Rent) Control Act 1959, and continued under the practically identical provisions of the Act 2 of 1965. The two petitioners in this writ petition are related to each other as uncle and nephew, and claim to be tenants of the building from which eviction was sought. The respondent is the successor in interest of the original landlord who let the building in question. The grounds on which eviction was sought were: (1) non payment of rent (2) subletting without the consent of the landlord; (3) Waste; (4) that the landlord needs the building bona fide for his own occupation; and (5) that the building is in such a condition that it needs reconstruction and the landlord bona fide required to reconstruct the same. The Rent Control Court found in favour of the landlord on grounds relating to nonpayment of rent, requirement for the purpose of reconstruction and bona fide need for the landlord's own occupation and allowed eviction on these grounds. It recorded no finding on the ground of subletting, and found against the landlord on the ground of waste. Against the order of the Rent Control Court the tenants preferred an appeal to the Appellate Authority (the Principal Sub Judge, Trivandrum). The said Authority found that as far as the ground relating to non payment of rent is concerned, the landlord had not issued a valid notice, as he was required to do under S.11(2) of the Act. Subletting was found against on the ground that there was no specific averment in the petition regarding the date or the time of subletting. Waste was also found against. It agreed with the Rent Control Court in its finding in regard to the landlord's bona fide need for the building for his own occupation and bona fide requirement to reconstruct the same. The Appellate Authority was of the definite opinion that relief should be given to the tenant under the second proviso to S.11(3) of the Kerala Act 2 of 1965. It was of the view that it had been brought out that the tenant had a business of his own in the room from which eviction was sought and that there was no other building for him to occupy in the locality in case eviction was ordered. Having found this, instead of refusing eviction on the ground of bona fide need for the landlord's own occupation under S.11(3) of the Act, the Appellate Authority made a direction that the landlord will provide a room for the tenant in the building to be reconstructed by him, of an area equivalent to that now occupied by him, with frontage to the East Fort Road within six months of the date of the vacation of the room by the tenant or of eviction by the landlord. In the result, it dismissed the tenant's appeal subject to the direction noticed above. Against the order of the Appellate Authority, the present petitioners preferred a revision to the Revisional Authority viz. the District Judge; and the present respondent preferred a memorandum of cross objections objecting to the direction of the Appellate Authority regarding the provision of alternative accommodation to the tenant. The Revisional Authority confirmed the findings of the Appellate Authority and dismissed the appeal. It also accepted the cross objections filed by the landlord and directed that the direction of file Appellate Authority that the landlord will provide a room in the reconstructed building to the tenant would stand discharged. The revision petition was accordingly dismissed. Ext. P 2, P 3 and P 6 respectively, are copies of the orders of the Rent Control Court, the Appellate Authority and the Revisional Authority. The writ petition is to quash these orders.
(2.) The main ground on which the petitioner attacked the order of the Revisional Authority was that there was no scope or provision for filing a memo of cross objections under the provision of the Rent Control Act before the Revisional Authority, and the Revisional Authority acted without jurisdiction in entertaining and allowing the same, and in vacating the directions incorporated by the Appellate Authority that the landlord should provide alternative accommodation to the petitioners in the reconstructed building. In evaluating this contention in these proceedings there are certain aspects to be noticed. No objection was raised before the Revisional Authority that a memo of cross objections would not lie. Before me it was argued by the petitioner on the decision in Sri Rajah Yenumala Latchanna Dora Varu v. Sri Raja Venumala Mallu Dora Varu ( AIR 1941 Mad. 55 ) and Venkitarama Naicker v. Ramaswami Naicker ( AIR 1952 Mad. 504 ) that a memo of cross objections cannot be entertained in revision. Counsel for the respondent landlord relied on the decisions in Official Assignee of Madras v. Ranganayaki Ammal (1928 Mad. 784); Sundar Lal v. Sabira Begam (1950 Allah LJ 672); and Jia Lal Kak v. Mohan Lal Kak (AIR 1960 J. & K. 22) and maintained to the contrary.
(3.) The decisions relied on by either counsel were rendered with respect to S.115 of the Civil Procedure Code. The right of revision under the Buildings (Lease and Rent) Control Act is conferred by S.20 of the Act, which reads as follows: "20 Revision-- (1) In cases where the appellate authority empowered under S.18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference there to as it thinks fit. (2) The costs of and incident to all proceedings before the High Court or District Court under sub-s.(1) shall be in its discretion." It is unnecessary to pronounce finally on the question as to whether a memo of cross objections can be entertained in a revision under the above provision. On the actual facts disclosed it is plain that the appellate authority's direction to the landlord to provide alternative accommodation to the tenant in the reconstructed building was clearly illegal and cannot be justified with reference to the provisions of the statute. Under the 2nd proviso to S.11(3) of the Act, if the appellate authority were of the view that the tenant was depending for his livelihood mainly on the income derived from the business carried on in the building from which eviction was sought and that there was no other suitable building available in the locality for him to carry on business, it shall not give any direction to the tenant to put the landlord in possession on the ground that the latter needs the building bona fide for his own occupation. Under the second proviso to S.11(4)(iv) of the Act, if the landlord who obtained eviction on the ground that he required the building for reconstruction did not reconstruct the same within a time to be fixed by the Rent Control Court, the Court has power in appropriate cases on application by the tenant to put the tenant back in possession of the building. These being the different provisions of the statute, the appellate authority by clubbing these provisions together, seems to have evolved a method of protecting the interests of the landlord and the tenant by incorporating a direction for the provision of alternative accommodation , to the tenant in the reconstructed building. This was clearly illegal and unsustainable, and was rightly vacated by the District Judge. Even if the Revisional Authority did so on the strength of the memo of cross objections, which may not be strictly entertainable - as to which I express no opinion - there is no ground to interfere with its order under Art.226, as, the result of doing so, would be to perpetuate the illegal order of the appellate authority. This is sufficient to decline interference.;


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