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Case Number

C.R.P No. 75 of 1991-A

Advocates

For the Appellant: C.K.Koshy

Judges

K. Sukumaran
L. Manoharan, JJ.

Acts

U.P Rent Control Act

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Smart Summary

Summary of the Opinion — Sukumaran, J.

Factual and Procedural Background

Three shop rooms in Kayamkulam Municipality were occupied by tenants: Ebrahim Ismail Kunju and Abdul Sathar Kunju (one shop), Philipose John (second shop), and G. Krishnan Kavayyathu (third shop). Phasila Beevi claimed to have purchased rights over one building under a 1985 document. The landlady (and the husband in separate petitions) sought surrender of the buildings and, because the tenants resisted, eviction proceedings were initiated primarily on the ground of bona fide need under Section 11(3).

Separate petitions were filed: R.C.P. 7 of 1987 by Phasila Beevi (alleging her husband was dependent on her and intended to start a wholesale business; he had no employment but had funds to invest), and R.C.Ps. 6 and 9 of 1987 by the husband (asserting his own need). An application (I.A. No. 344 of 1988) sought a joint trial of all three petitions on the basis that the evidence was common. The Rent Controller allowed joint trial on grounds of convenience; the Appellate Authority dismissed the appeal and upheld the view of common evidence and absence of prejudice. The common order directing joint trial was challenged in revision.

Legal Issues Presented

Whether the Rent Controller (and the Appellate Authority) could permissibly direct a joint trial of the three separate eviction petitions.
Whether there is an enumerated statutory power under the Rent Control enactment to permit joinder or consolidation of separate proceedings, or whether such power can be read in from a broader view of tribunal powers (including the conjoint reading of Section 23 and the provisions of the Civil Procedure Code referred to therein).
Whether the order permitting joint trial caused prejudice to the tenants and was therefore unsustainable.
Whether a late-raised contention that the order was not appealable (and thus the Appellate Authority acted without jurisdiction) could be entertained at the revision stage.

Arguments of the Parties

Petitioners' (Landlords') Arguments

Phasila Beevi (R.C.P. 7/1987) asserted bona fide need: her husband was dependent on her and intended to start a wholesale business; though the husband had no employment, he had financial capacity to invest.
The husband (petitioners in R.C.Ps. 6 and 9/1987) projected his own need for occupation of the premises.
In support of joint trial, it was contended (by petitioners) that the nature of evidence to be adduced in all three cases was the same, and therefore convenience justified a joint trial.

Tenants' (Respondents') Arguments

The tenants opposed joint trial on the grounds that the parties in the three cases are different and the evidence to be adduced would be different; hence there was no justification for joint trial.
They asserted that a joint trial would cause incalculable prejudice and damage to the tenants.

Additional/Later Contentions Raised by Respondent's Counsel

After hearing, respondent's counsel sought to raise a new contention by C.M.P. No. 741 of 1991 that the order permitting joint trial was not appealable and thus the Appellate Authority's order was without jurisdiction; further, that a revision by the tenants was not maintainable.
The Court declined to permit this new plea at the late stage, noting that the appeal had been filed long ago and the maintainability had not been questioned earlier.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Babu Ram Ram Gopal v. Mathura Dass, JT 1990 (3) SC 25 : AIR 1990 SC 879	Emphasis on the social object of rent control legislation and its benevolent purpose to protect weakest sections of society.	The decision was cited to justify a purposive, socially conscious approach to the Act rather than a narrow textualist search for enumerated powers.
Kochappan Pillai v. Chellappan, 1976 KLT 1	Contains wide observations on Rent Control procedure and jurisdictional issues (including views later said to be unsound).	The Court expressed reservations about many wide observations in this decision, noting some findings (e.g., that the Rent Controller cannot take note of subsequent events) are inoperative in light of the Supreme Court.
Narayani v. District Judge, 1991 (1) KLJ 311	Followed 1976 KLT 1 on aspects of pleadings and procedure before Rent Controller.	The Court noted this recent Division Bench decision followed Kochappan Pillai but observed that some of those aspects require deeper examination by a larger Bench.
Rangaier Sons (P) Ltd. v. Rukhiyabi, 1982 KLT 658 : AIR 1982 Ker (NOC) 147	Previously taken position on procedural/pleading aspects in Rent Control matters.	The Court observed that Rangaier Sons had been overruled in some respects by later decisions and discussion in other cases.
Achamma v. Sankaran Nair, 1990 (1) KLT S.N 26	Illustrates trend in decisions concerning pleadings and disciplinary requirements before Rent Control authorities.	Noted as part of a trend emphasizing adequate pleadings and procedural discipline.
Cheru Ouseph v. Kimjipathumma, 1981 KLT 495 : AIR 1981 Kerala 266	Principles evolved over time (centuries) that serve as guideposts for tribunal practice, including consolidation/joint trial considerations.	Referred to as authority that enduring principles developed historically can guide a tribunal's exercise of procedural powers like joinder/consolidation.
Kalawati Reja v. II Addl. Civil Judge, 1983 (2) RCJ 48 : 1983 All LJ 563	Consolidation is not a matter of right and rests in the sound discretion of the court; a factor against consolidation is that the proceedings are not of like nature.	Quoted in support of the proposition that refusal to consolidate is proper where proceedings are unlike, and that joint trial could cause prejudice.
Thomas John v. Kochammini Amma, 1991 (1) KLT 99	Concerns appealability/contestability of certain orders before Rent Controllers/Appellate Authorities.	The Court held that Thomas John did not apply to the present case and therefore refused to permit the respondent's late plea based on that decision.

Court's Reasoning and Analysis

The Court undertook a stepwise analysis grounded in the statutory scheme, practical consequences, and precedent:

Statutory Power and Approach: The Court rejected a narrow approach that insists upon finding an explicit enumerated power in the Rent Control statute to order joint trials. It preferred a purposive approach (drawing support from the Supreme Court's decision in Babu Ram Ram Gopal) that recognises the socially benevolent aim of rent-control legislation and permits tribunal flexibility where no statutory prohibition exists. The Court indicated that by a conjoint reading of Section 23 and the provisions of the Civil Procedure Code referred to therein, the Tribunal could, in principle, pass orders that best serve the litigant public, but also cautioned that the Rent Controller and Appellate Authority must be circumspect in invoking such power.
Procedural Principles and Tribunal Functioning: The Court stressed modern realities—Tribunals play an increasing role and should generally be empowered to ordain their procedures to serve litigants efficiently, avoiding undue technicality. Nonetheless, invocation of such broad procedural power must respect enduring principles and not be exercised carelessly.
Commonality of Evidence Not Sufficient Per Se: The Court examined the specific justification for joint trial advanced by both the Rent Controller and Appellate Authority — namely, that only a common question of bona fide need arises and the shop rooms being under the same roof made joint trial appropriate. The Court rejected this reasoning as insufficient. It noted that a common roof does not necessarily imply common ownership, identical grounds, or identical evidence; plurality of landlords and tenants and variations in pleadings and defenses are foreseeable.
Potential for Prejudice and Divergent Defences: The Court emphasized that the landlords' pleas could differ (for example, Phasila Beevi's petition relied on dependency of her husband and need for his wholesale business — matters that require strong, substantial evidence and can vary in degree), and tenants will have individualized defences. Differences in factual matrices, personalities, and range of defences could produce serious prejudice if consolidated. The Court relied on Kalawati Reja to underline that consolidation is discretionary and inappropriate where proceedings are not of a like nature.
On Late-Raised Jurisdictional Plea: The Court refused to entertain a late-raised contention that the order permitting joint trial was not appealable and that the Appellate Authority had no jurisdiction. It noted that the appeal was filed long ago without challenge to maintainability; the late plea was therefore not permitted, and the Thomas John decision relied upon by the respondents was held inapplicable. The Court also observed it had jurisdiction under Articles 226 and 227 of the Constitution to correct the error.
Conclusion of Analysis: Considering the foregoing, the Court concluded that the order of joint trial could not be sustained in principle or on precedent because it would work serious prejudice to the parties and there was inadequate justification for joint trial in the facts of the case.

Holding and Implications

Holding: The Court set aside the orders of the Rent Controller and the Appellate Authority directing joint trial, allowed the revision, and granted costs to the revision petitioner. The petitions are to be tried separately but expeditiously. (Petition allowed.)

Implications:

Direct effect: The joint-trial order is quashed; each of the three petitions will proceed to separate trials conducted on an expedited basis.
On precedent and broader law: The Court endorsed a purposive, facilitative approach to tribunal procedure—observing that tribunals should ordinarily be able to modulate procedures to serve litigants in the absence of statutory prohibition—but cautioned that such powers must be exercised circumspectly. The opinion expressed reservations about certain prior decisions (notably parts of Kochappan Pillai) and highlighted that some earlier views had been superseded by the Supreme Court. However, the remedy granted was directed to the facts before the Court rather than an outright, general overruling of previous authorities; the Court suggested that some larger questions be examined by a larger Bench.

Petition allowed.

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Ebrahim Ismail Kunju And Another v. Phasila Beevi .

Sukumaran, J.:— Three shop rooms situate in Kayamkulam Municipality are in the occupation of tenants, Ebrahim Ismail Kunju and Abdul Sathar Kunju, as regards one, Philipose John as regards the other, and G. Krishnan Kavayyathu in respect of the third. Phasila Beevi claims to have purchased the rights over one building under a document of 1985. The landlady desired surrender of the buildings. The tenants were disinclined to surrender. The inevitable proceedings for eviction were initiated. The prominent ground projected for seeking eviction was a bona fide need, as envisaged in S. 11(3). In R.C.P 7 of 1987, Phasila Beevi is the petitioner. It was averred by her that her husband was dependant on her, and was intending to have a wholesale business. The fact that her husband was without any employment or occupation and that he had the financial capacity for investment of funds in a business were also stated therein. The husband himself is the petitioner in R.C.P Nos. 6 and 9 of 1987. What is projected therein is his own need.

2. A petition I.A No. 344 of 1988 was filed for joint trial of R.C.P Nos. 6 and 9 of 1987 along with R.C.P 7 of 1987. It was contended that the evidence is common in all the three cases. The application was opposed. The parties in the three cases are different; the evidence to be adduced is also different; there is no justification for joint trial; a joint trial will cause incalculable prejudice and damages to the tenants — so went the grounds of objection. The objections were overruled. The Rent Controller observed:

“………the nature of evidence to be adduced in all the cases is one and the same. Considering the convenience of the parties as well as the court this petition is allowed.”

The appeal was dismissed. The Appellate Authority also took the view that “the nature of the evidence to be adduced is one and the same.” An additional reason was advanced by the Appellate Authority for sustaining the order of the Rent Controller directing joint trial:

“Moreover no prejudice will be caused to the appellants even if joint trial is allowed.”

The common order directing joint trial is attacked in the revision.

3. There is a larger contention urged on behalf of the revision petitioner. That is about the absence of an enumerated power of the Rent Controller in permitting joint trial of the cases. It does not appeal to us. A narrower approach to the Act will prompt an authority to search the limited space of the statute and its scheme to find out an enabling power in relation to the joinder of trials. Such a narrow approach does not commend over itself for our acceptance. A recent decision of the Supreme Court in Babu Ram Ram Gopal v. Mathura Dass, JT 1990 (3) SC 25 : AIR 1990 SC 879, has emphasised the message underlying this socially benevolent legislation intended to relieve the weakest sections of the Society. In this connection, we would like to express our reservations in relation to many of the wide observations as contained in Kochappan Pillai v. Chellappan, 1976 KLT 1. Some of the findings have already become inoperative by the supersession of the views by those of the Supreme Court. As for example, the view that the Rent Controller cannot take note of the subsequent events. This was held to be an unsustainable proposition by the Supreme Court. We may also refer to the discussion on furnishing negative evidence as yet another area which appears to us to be unsound in law. So too is the view expressed there on the question of pleadings. We are not unaware of a recent Division Bench decision in Narayani v. District Judge, 1991 (1) KLJ 311, which has followed 1976 KLT 1 supra, and overruled Rangaier Sons (P) Ltd. v. Rukhiyabi, 1982 KLT 658 : AIR 1982 Ker (NOC) 147. With great respect, it has to be pointed out that some of the larger aspects have been discussed at greater length by Viswanatha Iyer, J. in C.R.P No. 841 of 1978 and by the decision in 1982 KLT 658 supra. This trend is seen adopted by Padmanabhan, J. in Achamma v. Sankaran Nair, 1990 (1) KLT S.N 26, Case No. 27 as well. Experience over the years would indicate that insistence on the adequacy pleadings made in 1982 KLT 658 supra and other decisions had disciplined the proceedings before the Rent Control authorities.

4. It will be wrong to ignore the increasing problem of shrinking space available for residence or for trade. Rent Control litigation has become, to many, a matter of survival in business and protection from starvation. Pleadings in such a litigation with far reaching effect cannot be permitted to be vague and indefinite, indubitably causing prejudice to the party who has to meet a case. Judicial discipline, however, impels us to await a deeper examination of the question by a larger Bench of this Court.

5. The increasing importance of the Tribunals in the vast changing life of the community cannot be ignored by a modern court. A modern ostrich even in the distant deserts may not make such limited use of its eyes. Many valuable rights of the modern citizen are deeply involved with the adjudicatory processes of the Tribunals. Many areas hitherto occupied by courts are now the domains of the Tribunals. A liberal appraoch towards their functioning and a larger view about the powers they need are the requirements of the times. A Tribunal should be facilitated to do all that a court could do in similar situations; and much more than that. Greater speed and a total liberation from the tentacles of technicalities, give a better look and greater efficiency for effectively manned Tribunals. If there be no statutory prohibition, the Tribunal should therefore normally be in a position to ordain its affairs and modulate its procedures in such a manner as to best subserve the interest of the public, and in particular the litigant public. Looked that way, even in the absence of an enumerated head of statutory power on the conjoint reading of Section 23 and the enumerated provisions of the C.P.C referred to in that section, we would have permitted the Tribunal to pass an order which would better serve the interest of the litigant and of the Tribunal. However, the Rent Controller and the Appellate Authority should be circumspect in the invocation of the power and in the issue of an order invoking such a jurisdiction.

6. As to whether an order of joint trial is justified in the circumstances has to be determined with due advertence to the rights and obligations of the parties to the litigation and the effective and smooth functioning of the Tribunal itself. Quite often, principles which have been evolved in the course of centuries, with an enduring appeal and an enduring logical base, should be a good enough guide, in the exercise of the power of the Tribunal so conceived of and so conceded by decisions on the subject. (See Cheru Ouseph…Petitioner; v. Kimjipathumma…., 1981 KLT 495 : AIR 1981 Kerala 266.

7. The rule against hearsay as for example had been found to be useful in the working of a Tribunal, even when technically the provisions of the Evidence Act are not attracted in dealing with the matter before the Tribunal.

8. Both the authorities have proceeded on the assumption that only a common question of bona fide need arises in all the three cases. The mere fact that the three shop buildings are under a roof, which covers quite a number of rooms under it, does not justify a rush to joint trial. It is possible that owing to a variety of reasons, a common roof will be linked with a multiplicity of ownerships or possessions. The Rent Controller observed:

“All the three rooms are situated on the same roof as well.”

(We would assume that the bad structure of the sentence was due to an oversight when the order was hurriedly scribbled. The Appellate Court, however, should have bestowed greater attention when it repeated the same idea with the same jarring wording:

“According to the petitioner, all the 3 rooms are situate on the same roof……”

Notwithstanding the existence of a common roof, the landlords can be different, due to the possible transactions and transfers relating to fractions of the building. Under the scheme of the enactment, even a portion of an original building would itself come within the wide ambit of the term ‘building’ as defined in Section 2. The plurality of landlords and of tenants in respect of smaller patches of shop buildings could be easily conceived of and come across. There is hardly any ground for ordering joint trial, when the grounds would be definitely different in relation to any individual landlord or any individual tenant, in respect of the allegations of aggressive pleading or differentialities in the defensive pleas.

9. Even when the ownership of a combination of buildings under the same roof, come to the husband and a wife each owning distinct buildings possessed by different tenants, the plea could be very different, the defence could be widely divergent; and the entire perspective may change from case to case. We may illustrate the emerging situation with reference to the facts arising from the order under attack. In the wife's petition projecting the husband's dependance and the need for his whole business, much more than a ordinary simple and straightforward case of ‘own occupation’ arises. Dependency — whatever be the shades of meaning and the scope of that term — is one aspect which has to be established by substantial and strong evidence. The existence and extent of dependency will necessarily vary.

10. Similarly, different tenants could have varying ranges of pleas depending upon their personal personalities. The decision in Kalawati Reja v. II Addl. Civil Judge, 1983 (2) RCJ 48 : 1983 All LJ 563 supports the view taken by us. In that case, an order refusing consolidation of two proceedings under the U.P Rent Control Act was upheld by the High Court. Consolidation of actions, it was noted, is not a matter of right and rested in the sound discretion of the court. The fact that two proceedings are not of a like nature was held to be a valid and vital factor for declining consolidation. In the background of these existing and live facts, a joint trial would work serious prejudice to the parties. Such an order cannot therefore be sustained either in principle or on precedent.

11. After the hearing was over and orders reserved, counsel for the respondent filed C.M.P No. 741 of 1991, seeking to raise an additional contention. According to him, the order was not appealable and consequently the Appellate Order was one without jurisdiction. A revision is not maintainable at the instance of the tenants is the next submission. We are unable to permit this new plea, at this juncture. The appeal was filed long time back. Its maintainability was not questioned at that time. The order permitting joint trial does involve a significance of a graver type than in relation to a simple and single piece of evidentiary material like a report of the Commissioner and the objection thereto or the remission thereof. The decision in Thomas John v. Kochammini Amma, 1991 (1) KLT 99, would not therefore apply to the present case. That apart this Court has got power under Arts. 226 and 227 of the Constitution to correct an error of this nature which has been brought to the notice of the court.

12. In the result, we set aside the orders of the Rent Controller and of the Appellate Authority and allow the revision with costs. The petitions will be tried separately but expeditiously.

Petition allowed.

Ebrahim Ismail Kunju And Another v. Phasila Beevi .

Summary of the Opinion — Sukumaran, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' (Landlords') Arguments

Tenants' (Respondents') Arguments

Additional/Later Contentions Raised by Respondent's Counsel

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ebrahim Ismail Kunju And Another v. Phasila Beevi .

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