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Kallianikutty Amma Vs. Velayudhan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberO.P. No. 2899 of 1975
Judge
Reported inAIR1976Ker102
ActsConstitution of India - Articles 226 and 227; Kerala Buildings (Lease and Rent Control) Act, 1959 - Sections 11 and 18
AppellantKallianikutty Amma
RespondentVelayudhan and ors.
Advocates: O.O. Mathew, Adv.
DispositionPetition dismissed
Cases ReferredBalwanit Singh v. Sant Ram Sharma
Excerpt:
- - ' 3. the principle in this case cannot apply to an order like the impugned order which is specifically made under the proviso to section 11 of the act......by the rent controller. wadakkancherry under the provisions of the kerala buildings (lease and rent control) act. holding that the first respondent's denial of the petitioner's title and right to evict him from the portion of the building described in the rent control petition is bona fide and allowing the petitioner to file a suit for eviction of the respondents in the r. c. o. p. in a civil court. the petitioner is the landlord of the building concerned and she brought forward the rent control petition alleging that the house had been orallv entrusted to the first respondent on a monthly rent of rs. 20/-. the first respondent denied the entrustment by thepetitioner and contended that the lease was from the father of the petitioner, that there was a subseaunet oral agreement of the.....
Judgment:
ORDER

T. Chandrasekhara Menon, J.

1. The petitioner in this Original Petition challenges the validity of an order Exhibit P-l passed by the Rent Controller. Wadakkancherry under the provisions of the Kerala Buildings (Lease and Rent Control) Act. holding that the first respondent's denial of the petitioner's title and right to evict him from the portion of the building described in the Rent Control Petition is bona fide and allowing the petitioner to file a suit for eviction of the respondents in the R. C. O. P. in a Civil Court. The petitioner is the landlord of the building concerned and she brought forward the Rent Control Petition alleging that the house had been orallv entrusted to the first respondent on a monthly rent of Rs. 20/-. The first respondent denied the entrustment by thepetitioner and contended that the lease was from the father of the petitioner, that there was a subseaunet oral agreement of the sale of the leasehold property to him and in pursuance of the agreement he was put in possession of the property. The order of the Rent Control Court was obviously passed on the basis of Second proviso to Section 11 of the Act, wherein it is stated-

'Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.'

2. It appears to me that the petitioner could take up the matter under Section 18 of the Rent Control Act in appeal to the Appellate Authority. The relevant provision is Section 18 (b) of the Act. As per the above mentioned provision, any person aggrieved by an order passed by the Rent Control Court may prefer an appeal. But the learned counsel for petitioner contends that it is not the final order as such and therefore an appeal may not be the correct remedy. He invited my attention to the decision of the Punjab High Court in Balwanit Singh v. Sant Ram Sharma, ILR (1964) 2 Punj 127. There. Justice Grover, as he then was held

'that when a question arises in proceedings before the Rent Controller under tile Delhi Rent Control Act, 1'958, whether relationship of landlord and tenant exists, between the parties the order disposing of that issue is not one which is made under any of the provisions of the Act. That question has to be decided for settling whether the Rent Controller would have jurisdiction to entertain and proceed with the application for fixation of standard rent or for eviction, as the case may be, which has been filed before him. But while deciding that matter the Rent Controller is not making any order under the Act although he may have to consider the definitions of the expressions 'landlord' and 'tenant' given in Section 2. It is difficult to hold that every order made by the Rent Controller in the exercise of his jurisdiction as such would be an ordermade under the Act. No appeal, mere-fore, lies from an order made by the Rent Controller on a preliminary issue as to whether relationship of landlord and tenant exists between the parties or not.'

3. The principle in this case cannot apply to an order like the impugned order which is specifically made under the proviso to Section 11 of the Act. Apart from the fact that the impugned order is an order under the Act as such, it may be noted that Section 18 (b) of the Kerala Act is differently worded from Section 38 (1) of the Delhi Rent Control Act. Section 18 (b) of the Kerala Act is as follows :--

'Any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction, In computing the thirty days aforesaid the time taken to obtain a certified copy of the order appealed against shall be excluded.' Section 38 (1) of the Delhi Rent Control Act is' as follows:--

'An appeal shall lie from every order of Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the official gazette.'

4. Apart from the fact that under the Kerala Act for an appeal to lie, the order need not be an order made under the Act as such but will lie from every order of the Rent Control Court, it may, also be stressed here that an order refusing to exercise jurisdiction on the ground that the matter will have to be fought out in a Civil Court, is an order under the Act because of the specific proviso to Section 11 of the Act.

5. The alternative remedy available to the petitioner fa quite adequate; apart from the fact that the appellate authority will be a judicial officer, not below the rank of a Subordinate Judge, there is the right of a revision to the District Court. The revision is heard by the District Court as a Court under the Code of Civil Procedure and therefore a further revision also lies in the High Court. In these circumstances, it will not be proper to exercise the extra-ordinary jurisdiction of the Higih Court under Art. 226 or 227 of the Constitution in the matter. An order declining jurisdiction will certainly be a final order as far as the Tribunal is concerned.

6. I see no reason to admit the Original Petition and issue notice to the respondents. The O. P. is disposed of as above.


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