Citation Codes

Equivalent Citations

citation codes

Case Number

O.P No. 3168 of 1990

Judges

V.S Malimath, C.J
T.L Viswanatha Iyer, J.

Acts

Rent Control) Act, 1965 (Act 2 of 1965) hereinafter referred to as the Act),
Section 18 of the Kerala Act 2 of 1965.
Section 20A of Kerala Act, 2 of 1965

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Smart Summary

Structured Summary of the Opinion — Malimath, C.J.

Factual and Procedural Background

This writ petition was filed by tenants challenging an order made by the District Judge, Kozhikode, in Rent Control Revision Petition No. 100 of 1986. The matter was referred by Justice Chettur Sankaran Nair because of an important question whether a District Judge, acting as revisional authority under the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), who set aside an Appellate Authority's order, can himself record findings as an Appellate Authority when the originally notified Appellate Authority has ceased to hold that status.

Relevant facts: Respondents 1 to 6 (landlords) applied before the Rent Controller, Payyoli, for eviction of the petitioners (tenants) invoking sections 11(2), 11(3) and 11(4)(1) of the Act. The Rent Control Court by order dated 30 March 1985 dismissed the petition for eviction. On appeal the Subordinate Judge (then the Appellate Authority) dismissed the appeal, holding that the petition was barred by the proviso to section 11(3) because the eviction claim was filed within less than one year from acquiring the right to recover possession under an instrument of transfer inter vivos. Because of that finding the Appellate Authority did not examine other findings of the Rent Controller.

The landlords challenged the Appellate Authority's order before the Revisional Authority (the District Judge) under section 20 of the Act. The Revisional Authority reversed the Appellate Authority's finding and held the eviction application was not barred by the proviso to section 11(3) and was maintainable.

The Revisional Authority contemplated remitting the matter to the Appellate Authority under section 20A. By the time of its decision, however, the Court of the Subordinate Judge had ceased to be the Appellate Authority because the State Government had notified the District Judge to be the Appellate Authority (notification dated 31-8-1989; Government notification published in Gazette dated 26-9-1989). Confronted with that situation, the Revisional Authority recorded findings himself (purporting to act as Appellate Authority) on issues the Appellate Authority had not addressed, and ultimately passed an order for eviction based on its finding that the landlords' requirement was bona fide and that tenants failed to establish dependence on the business carried on at the premises. The tenants challenged that decision in this writ petition.

Legal Issues Presented

Whether the proviso to section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 is attracted where the landlords acquired the right to recover possession under a deed of partition (i.e., whether a partition is a transfer inter vivos).
Whether the landlords' claim of bona fide requirement was established and whether that finding was vitiated by errors apparent on the face of the record (including questions about burden of proof).
Whether the Revisional Authority (District Judge), having set aside the Appellate Authority's order and when the originally notified Appellate Authority had ceased to exist, could properly record findings as the Appellate Authority (i.e., whether the revisional court could or should function both as revisional court and appellate authority in the circumstances).

Arguments of the Parties

Petitioners' (Tenants') Arguments

The revisional authority's finding that the eviction application is not barred by the proviso to section 11(3) is not in accordance with law (i.e., the petitioners contended the bar in the proviso was attracted).
The revisional court's finding regarding the landlords' bona fide requirement is vitiated by errors apparent on the face of the record and cannot be sustained.
The revisional court could not validly function both as a revisional court and as an Appellate Authority (i.e., it had no authority to sit as Appellate Authority and record findings as such once the Subordinate Judge ceased to be Appellate Authority).

Respondents' (Landlords') Arguments

The landlords sought eviction under sections 11(2), 11(3) and 11(4)(1) of the Act and asserted that their requirement for the premises was bona fide.
Implicit in the proceedings is the contention that the right to recover possession did not arise under an instrument of transfer inter vivos that would attract the proviso to section 11(3) (the Revisional Authority accepted that position).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's analysis proceeded point-by-point as follows, reflecting the reasoning present in the opinion:

On the proviso to section 11(3): The Court accepted the Revisional Authority's conclusion that a deed of partition is not a transfer inter vivos. The opinion explains the legal principle relied on: when a party acquires exclusive possession under a deed of partition, that person is not receiving a transfer inter vivos because he already had a share in the property; a partition is not a transfer inter vivos. Therefore, the bar in the proviso (which applies only when the right to recover possession arises under an instrument of transfer inter vivos) did not apply. The Court held this view to be sound and not requiring interference.
On the alternative contention that the joint family itself acquired title within one year: The Court declined to entertain this new factual contention because it was not specifically pleaded in the Statement of Objections in the Rent Control Court, was not put in issue at trial as such, and was not urged before the Revisional Authority. The Court emphasized procedural fairness and the need for factual investigation: because it would require examination of new facts, the contention could not be raised for the first time in the writ petition.
On bona fide requirement and burden of proof: The Court rejected the petitioners' submission that the judgment indicated the tenants bore the onus to disprove bona fides. Reading the judgment as a whole, the Court found that the landlords made out a prima facie case of bona fide requirement, and the tenants then put forward evidence to challenge that claim. Where both parties led evidence, the question of burden of proof was not determinative. The Court explained that a landlord asserting bona fide requirement may be met by materials from the tenant showing lack of bona fides; the Revisional Authority assessed the evidence from this angle and reached a factual conclusion that the landlords had established bona fide requirement. The Court found no errors apparent on the record in that factual finding.
On the revisional authority acting as appellate authority: The Court addressed the procedural difficulty created by the change in notification of Appellate Authorities (Subordinate Judges ceased to be Appellate Authorities; District Judges were notified as Appellate Authorities). The Court noted that section 20A confers powers of remand on the revisional authority, but that remand is not mandatory in every case where an appellate authority failed to record appropriate findings. The Court stated the settled approach that superior courts should, as far as possible, avoid remanding and should record necessary findings themselves to avoid protraction of litigation.
Applying those principles, the Court held that the Revisional Authority need not have felt helpless because the Appellate Authority had ceased to exist; the Revisional Authority could itself record relevant findings on merits as revisional authority rather than purporting to sit as Appellate Authority. Although the Additional District Judge in this case recorded findings while purporting to act as Appellate Authority, that exercise was unnecessary because the same findings could properly have been recorded by him in his revisional capacity. Therefore, the Court treated the findings as having been recorded by the revisional authority and found no errors apparent on the face of the record to justify interference.
Discretionary relief on vacating: The Court, after hearing counsel, exercised discretion to grant the tenants time to vacate the premises until 31 March 1991 on condition that they give a written undertaking within three weeks that they will voluntarily and unconditionally surrender possession before the expiry of the time granted; if they fail to give the undertaking, they will not be entitled to any time and landlords may execute the eviction order.

Holding and Implications

DISMISSED.

Holding (core rulings):

The Revisional Authority correctly held that a deed of partition is not a transfer inter vivos and therefore the proviso to section 11(3) of the Act did not bar the landlords' eviction application.
The Revisional Authority's factual finding that the landlords' requirement was bona fide was sustained; the finding did not suffer from errors apparent on the face of the record.
The Revisional Authority (District Judge) could properly record the necessary findings on the merits in revision even though the originally notified Appellate Authority had ceased to be such; the findings recorded by the District Judge, though purporting to be in his capacity as Appellate Authority, are treated as findings recorded by him in his revisional capacity and are upheld.
Accordingly, the writ petition of the tenants is dismissed subject to the vacating terms set out below.

Direct consequences for the parties:

The eviction order stands as upheld by the Court.
The tenants were granted time to vacate until 31 March 1991 provided they give a written undertaking within three weeks to voluntarily and unconditionally surrender possession before that date; failure to give the undertaking results in loss of the vacating time and entitles the landlords to execute the eviction order immediately.
No costs were awarded.

Broader implications: The opinion emphasizes that remand by a superior court is not obligatory where the superior court can appropriately record the necessary findings itself to prevent protraction of litigation. The opinion does not state that it establishes a new precedent beyond the application of those principles to the facts of this case.

Orders and Directions

The writ petition is dismissed subject to the time granted for vacating the premises as specified above.
A copy of the judgment was ordered to be forwarded to the Rent Control Court immediately.

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Karekkandi Choyi And Another v. Ayimbadi Meethal Amoo And Others

The Judgment of the Court was delivered by

Malimath, C.J:— This is the tenants' writ petition challenging the order made by the District Judge, Kozhikode, in Rent Control Revision petition No. 100 of 1986. This case has come up before us on a reference made by Justice Chettur Sankaran Nair on the ground that an important question as to whether the District Judge acting as a revisional authority under the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) hereinafter referred to as the Act), having set aside the order of the Appellate Authority finding that in the meanwhile the Court of the Subordinate Judge has ceased to be the Appellate Authority can himself record findings as an Appellate Authority.

2. The relevant facts necessary for the disposal of this case may briefly be stated as follows. Respondents 1 to 6 made an application before the court of Rent Controller, Payyoli, for eviction of the petitioners, invoking section 11(2), 11(3) and 11(4)(1) of the Act. The Rent Control Court by its order dated 30th March, 1985 dismissed the petition. On appeal, the Subordinate Judge, who was then the Appellate Authority, dismissed the appeal holding that the petition for eviction is barred under the proviso to section 11(3) of the Act, the petition for eviction having been filed within a period of less than one year from the date of acquiring the right to recover possession under an instrument of transfer inter vivos. In view of the said finding, the other findings recorded by the Rent Controller were not examined. The landlords then challenged the said order before the Revisional Authority, the District Judge, under section 20 of the Act. The Revisional Authority reversed the finding of the Appellate Authority and held that the application is not barred by the proviso to section 11(3) of the Act and that it is maintainable.

3. Having come to that conclusion, the Revisional Authority felt that the only course open to it is to remit the case to the Appellate Authority, having regard to the powers conferred on it in this behalf by section 20-A of the Act. By the time the revisional authority rendered its decision, the Court of Subordinate Judge which was notified as an Appellate Authority under section 18 of the Act had ceased to be an Appellate Authority, the District Judge having been notified as an Appellate Authority by notification dated 31-8-1989. The Revisional Authority says that he cannot remand the case to the Subordinate Judge who was earlier notified as an Appellate Authority as he has ceased to be the Appellate Authority, from the aforesaid date. Being confronted with a situation like this of not being able to remand the case to a non-existent Appellate Authority, the revisional authority came to the conclusion that it now having become the Appellate Authority under the aforesaid Notification issued by the State Government, notifying the District Judge as an Appellate Authority, he can himself exercise the powers of the Appellate Authority and record findings on those issues on which the Appellate Authority had not recorded its findings. So saying, the District Judge purporting to function as the Appellate Authority records findings on the other issues on which the Rent Control Court had recorded findings against the landlords. The only matter on which the parties joined issue was the claim of the landlords for eviction on the ground of bona fide need. Reversing the findings of the Rent Control Court, the learned District Judge held that the requirement of the landlords is bona fide and that the tenants have failed to establish that they are dependent for their livelihood mainly from the income derived from the business they are carrying on in these premises. In view of these findings, the order of eviction has been passed. It is the said decision that is challenged in this writ petition.

4. Shri Mohankumar, the learned counsel appearing for the petitioners formulated three contentions in support of his contentions, namely, (1) that the finding in the impugned order that the application for eviction is not barred by the proviso to section II(3) of the Act is not in accordance with law, (2) that the finding regarding bona fide requirement of the lardlords is vitiated by errors apparent on the face of the record and cannot be sustained, and (3) that the revisional Court could not have functioned both as a revisional Court as also as an Appellate Authority, as it purports to have done in the impugned order.

5. The finding recorded by the revisional Authority on the first point that the deed of partition is dot a transaction of transfer inter vivos and that therefore the acquisition of right to recover possession under a partition deed by the landlords does not attract the bar engrafted in the proviso to section 11(3) of the Act. The view taken by the revisional authority, in our opinion, is sound. The bar is attracted only when the right to recover possession arises under an instrument of transfer inter vivos. When a party acquires a right to exclusive possession under a deed of partition, there is no transfer of rights inter vivos in his favour as he had already a right along with the others in that property. It is well settled that a partition is not transfer inter vivos. Hence the finding of the revisional authority does not call for interference.

6. It was however contended by Sri Mohankumar, the learned counsel for the petitioners, that the joint family itself has acquired the right in the property within a period of one year from the date of application and therefore the bar contained in the proviso to section 11(3) of the Act is attracted. It has to be pointed out that there is no specific plea raised in the Statement of Objections filed by the petitioner in the Rent Control Court in this behalf. It is no doubt true that an issue has been framed and the parties have joined issue in regard to the operation of the bar contained in the proviso to section 11(3) of the Act. But on a perusal of the judgment of the Rent Control Court, we find that the parties joined issue in regard to acquisition of right under a deed of partition. It was not put in issue that the Joint Family itself acquired title to the property in question within a period of one year from the date of application. Such a contention is not seen urged before the revisional authority. It is therefore clear that it was not the case of the petitioners that the bar is attracted because the Joint Family itself acquired the title to the property if question within one year from the date of filing of the application. Hence we will not be justified in permitting the new contention sought to be raised for the first time in this writ petition, particularly when it is a question of fact that needs investigation of new facts. Hence the new contention sought to be raised in this writ petition cannot be permitted to be raised.

7. The second point which was urged was that the discussion in the judgment under challenge indicates that it was for the appellants-tenants to establish that the requirements of the landlords is not bona fide. On a proper reading of the judgment, it is not possible to take the view that is how the revisional authority has proceeded to deal with the issue. If we read the judgment as a whole, it becomes clear that the landlords having made out a prima facie case about their requirement being bona fide, the case of the tenants was examined and a finding was recorded to the effect that the landlords have established that their requirement is bona fide. When both the parties have led evidence in regard to this aspect of the matter the question of burden of proof does not assume much importance. It is also necessary to point out that when the landlord asserts that his requirement is bona fide, the tenant may place materials and circumstances to show that the requirement is not bona fide. It is from this angle that the evidence has been assessed in the impugned judgment. The finding of tact has been appropriately arrived at on a consideration of the facts and circumstances of the case in the impugned judgment and the same does not suffer from any errors apparent on the face of the record.

8. On the third point, it was contended by Sri. Mohan Kumar that the additional District Judge whose jurisdiction was invoked by the landlords as a revisional authority under Section 20 of the Act could not have functioned both as a revisional authority as also as an appellate authority. The manner in which the additional District Judge has dealt with the matter has given scope for such an argument. This is what has been stated in the impugned order:

“In view of my finding on point No. 1 I would have invoked Section 20A of Kerala Act, 2 of 1965 and remanded the matter to the Appellate Authority for entering findings on the merits of the case. But, as per notification published in the Gazette dated 26-9-1989, the Government of Kerala, in supersession of all the earlier notifications has nominated the District Judges to be the Appellate Authorities under Section 18 of the Kerala Act 2 of 1965. The result of this notification is that Subordinate Judges have ceased to be Appellate Authorities. Hence this is a case where this Court sitting in revision cannot remand the matter to the Subordinate Judge from whose decision as Appellate Authority, this revision arose. Now that this Court is itself the Appellate Authority, the matter will have to be considered on merits by this Court. I therefore propose to decide point No. 2 on the merits.”

9. Merely because Section 20A of the Act confers powers of remand on the revisional authority it does not mean that power must be exercised in every case, whenever appropriate findings on the relevant issues have not been recorded by the Appellate Authority. It is well settled that as far as possible remanding of the case by the superior court to the lower court or authority should be avoided and necessary findings recorded by the very same court or authority to avoid unnecessary protraction of the litigation. In this case, the revisional authority need not have felt helpless on the ground that it cannot remand the case to the subordinate Judge he having ceased to be an appellate authority. The revisional authority could have itself recorded relevant findings on merits on the issues on which the findings were not recorded by the Appellate Authority. That is the permissible and also the appropriate course to be adopted in such circumstances. As a matter of fact, the Additional District Judge in this case has himself recorded finding on merits, though purporting to sit in the chair of the Appellate Authority and not in the chair of the revisional authority. This is a wholly unnecessary and futile exercise as he could do the same as a revisional authority. Though the Additional District Judge purports to have recorded the findings sitting in the chair of the Appellate Authority, as we have come to the conclusion that the very same authority? could have recorded those findings, the findings of the Additional District Judge on merits should be treated as having been recorded by the revisional authority. The findings recorded in the impugned order do not suffer from any errors apparent on the face of the record justifying interference. Thus we find no good grounds to interfere.

10. Shri Mohankumar, the learned counsel appearing for the petitioners, however, requested for reasonable time for vacation of the premises. After hearing the counsel for the respondents, Shri Suresh, we consider it just and proper to giant time to the petitioners to vacate the premises till 31st of March, 1991 on condition that they give a written undertaking within three weeks from this date to the effect that they will voluntarily and unconditionally surrender possession before the expiry of the time granted. In the event of the petitioners not giving an undertaking within the time specified as above, they will not be entitled to any time for vacating and the respondents-landlords would be entitled to execute the order for eviction.

11. Subject to the time granted for vacating the premises as above, this writ petition is dismissed. No costs.

12. Let a copy of this judgment be forwarded to the Rent Control Court immediately.

Karekkandi Choyi And Another v. Ayimbadi Meethal Amoo And Others

Structured Summary of the Opinion — Malimath, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' (Tenants') Arguments

Respondents' (Landlords') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Orders and Directions

Karekkandi Choyi And Another v. Ayimbadi Meethal Amoo And Others

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