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Sivarama Menon Vs. Raghavan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1277 of 1971
Judge
Reported inAIR1972Ker166
ActsKerala Buildings (Lease and Rent Control) Act, 1959 - Sections 11(1)
AppellantSivarama Menon
RespondentRaghavan and ors.
Appellant Advocate K.V. Nair, Adv.
Respondent Advocate T.V.S. Iyer, Adv.
DispositionPetition dismissed
Cases ReferredPanchamal Narayana Shenoy v. Basthi Venkatesha Shenoy
Excerpt:
.....section 11 (1) of kerala buildings (lease and rent control) act, 1959 - landlord-respondent sought eviction of tenant-petitioner - tenant-petitioner claimed that suit not entertainable in rent control court unless value of improvements effected by him in property in question adjudicated in civil court in view of proviso (2) to section 11 (1) - two grounds available under proviso 2 to section 11 (1) for ousting jurisdiction of rent control court are denial of title of landlord and claim of right of permanent tenancy - neither of grounds present in case of appellant-tenant - held, petition dismissed. - - the building is to be enjoyed by him without committing any waste. ' the position thus is well fortified that the tenant is not entitled to put forward the claim for value of..........scope for the contention that he is entitled to fixity of tenure by virtue of the fact that he has effected improvements in the building. no fixity of tenure has become vested in him by virtue of any other circumstance. decisions are uniform that the rent control court is not expected to go into the question of value or improvements. it is not a matter falling within the jurisdiction of the rent control court. the act is a complete code on the rights and liabilities of the landlord and tenant in respect of matters falling within the purview of landlord and tenant in respect of the building and it is not permissible for a landlord or tenant in cases governed by the act, to fall back upon the provisions of the transfer of property act or the contract of tenancy or other extraneous matters......
Judgment:
ORDER

K. Sadasivan, J.

1. The tenant is the revisionpetitioner. Against him the landlord filed R. C. P. 109/68 for eviction on the ground of arrears of rent sub-letting and bona fide requirement for own occupation. The tenant (revision petitioner) denying these grounds filed M. P. 2686/69 claiming fixity of tenure and also that unless the value of improvements effected by him in the building amounting in all to Rupees 40,000/- is paid the landlord is not entitled to evict him and praying that this question may primarily be decided. In other words, his case is that the matter is governed by proviso (2) to Section 11 (1) of the Kerala Buildings (Lease and Rent Control) Act (shortly stated the Act) and the proper forum for deciding the questionwhether he could be evicted is the civil court and so according to the tenant the landlord should be directed by the Rent Control Court to move the civil court for appropriate orders. This petition was dismissed by the Rent Controller; but allowed in appeal by the learned appellate authority, which decision has been reversed by the District Judge in revision.

2. I think the decision of the learned District Judge is correct and does not call for interference in this further re-vision. Proviso (2) reads:--

'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.'

The two grounds, therefore, recognised by the Act for ousting the jurisdiction of the Rent Control Court are:--

(1) denial of title of the landlord; and

(2) claim of right of permanent tenancy.

I do not think either of these requirements is present in the instant case. Ex-Dl is the rent deed executed by the revision petitioner in favour of Balagopala Menon and Gopinathan who are successors-in-interest of Ammukutty Amma who was the original owner. The document contains a conditional undertaking to pay rent at the rate of Rs. 175/- per mensem and also the municipal tax. On arrears, he has taken upon himself the liability to pay interest. The building is to be enjoyed by him without committing any waste. In the face of these clear undertakings, I see no scope for the contention that he is entitled to fixity of tenure by virtue of the fact that he has effected improvements in the building. No fixity of tenure has become vested in him by virtue of any other circumstance. Decisions are uniform that the Rent Control Court is not expected to go into the question of value or improvements. It is not a matter falling within the jurisdiction of the Rent Control Court. The Act is a complete code on the rights and liabilities of the landlord and tenant in respect of matters falling within the purview of landlord and tenant in respect of the building and it is not permissible for a landlord or tenant in cases governed by the Act, to fall back upon the provisions of the Transfer of Property Act or the contract of tenancy or other extraneous matters. The Travancore Cochin High Court had occasion to deal with this matter at some length and has held in GomathiAmmal v. Cinnakannu Pilial, (1954 Ker LT 278) = (AIR 1954 Trav-Co 291) that-

'There is nothing in the Buildings (Lease and Kent Control) Order to indicate or suggest that cases where the tenant has a claim against the landlord for value of improvements effected by him in the building or for amounts charged on the building are excluded from the scope of the order. There is no provision in that order empowering the Controller to adjudicate upon such claims. Naturally therefore, it lies within the province of civil court to consider such claims and to adjudicate upon the same by passing an appropriate decree or order when the matter is agitated before such Court. Irrespective of the question of the existence or the tenant's claim for value of improvements as embodied in a decree or otherwise the jurisdiction to order his eviction is conferred on the controller and on him alone and the existence of such a claim cannot stand in the way of his exercising that jurisdiction. The Legislature has conferred such an exclusive and absolute jurisdiction on the controller in respect of all building tenancies within his territorial jurisdiction excepting those expressly excluded by the two provisos to Sub-section (1) of Section 9. The conditions necessary to attract the jurisdiction of the controller to entertain an application for eviction of the tenant have been specified in the Rent Control Order itself and these are that the parties approaching him must occupy the positions of landlord and tenant as defined in the order, that there must be a rental arrangement between them in respect of a building situated within the territorial jurisdiction of the Controller and that one or more of the grounds enumerated in Section 9 as enabling the landlord to get back possession of the building from the tenant must be made out by him as against the tenant. Where these conditions exist, consideration of extraneous matters would be irrelevant in the matter of determining the controller's jurisdiction to entertain an application for eviction.'

This has been re-affirmed by the Kerala High Court in Appukuttan Pillai v. Thiru-vadinatha Pillai, (1958 Ker LT 440) wherein the learned Judge observed:--

'The order for eviction passed by the controller under Clause 9 of the Order, cannot adjudge any compensation for improvements in favour of the tenant. The Court executing that order for eviction under Clause 11 can only execute that order as if it were its own decree and has no jurisdiction to entertain any claim for such compensation.'

The Mysore High Court in Panchamal Narayana Shenoy v. Basthi Venkatesha Shenoy, (1966-2 Mys LJ 133), has also taken the same view. The court observed:--

'The last contention advanced on behalf of the petitioner is that he had effected vast improvements to the suit premises; under Ex. B-6 the previous landlord had agreed to pay compensation for the improvements effected by him at the time of his eviction from the suit premises; therefore no order for eviction against him could have been passed without first providing for the payment of compensation for the improvements effected by him.... It is one thing to say that no eviction could be ordered without paying compensation for improvements effected, it is yet another thing to say that the tenant is entitled for compensation for the improvements effected by him. The right to get compensation is an independent right. It could be claimed by means of independent proceedings. Pleadings apart, my attention has not been invited to any provision in the Act under which the court can direct payment of compensation for a tenant before ordering his eviction. While asking for the petitioner's eviction the respondent was enforcing a statutory right of his. The relief prayed for by him could be refused only on one or the other of the grounds found in the Act. As mentioned earlier, the tenant if he has a right to compensation could enforce the same in an appropriate proceeding. But he cannot make that a ground to resist the eviction proceeding against him.'

Against this decision, appeal was filed before the Supreme Court in Panchamal Narayana Shenoy v. Basthi Venkatesha Shenoy, (AIR 1971 SC 942), wherein this position was approved in the following terms:--

'Mr. Chagla further urged that before his client is evicted his claim for compensation should have been considered by the Rent Controller. It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings.'

The position thus is well fortified that the tenant is not entitled to put forward the claim for value of improvements in bar of eviction and the Rent Control Court is not empowered to adjudicate such a matter, as it is not within its jurisdiction. In case the tenant denies the title of the landlord, or claims right of permanent tenancy and the Rent Control Court thinks that either of these claims is bona fide, it is open to the Court to record a finding to that effect and direct the matter to be decided by the civil court. Such a contingency does not arise in the present proceedings. Learned counsel then made another feeble attempt to bring the matter under the law of Contract. He stated that the landlord had agreed at the time of letting to pay for all improvements effected and without making such payment he could not claim recovery of the building. I see no basis for this claim. Such an agreement isconspicuously absent in Ex. D-1 rent deed executed by the petitioner. The case is that such an undertaking was given by the original landlord Ammukutty Amma and it is on the strength of her word that the improvements were effected. This would further weaken their claim as there is no whisper of it in Ex. D-1. If, in fact, there was any such undertaking by Ammukutty Amma, the petitioner when he took Ex. D-1 would normally have got it endorsed in Ex. D-1 itself. In any view of the matter, the claim for value of improvements is one to be adjudicated in the civil court and not before the Rent Controller.

3. The order of the Court below fa, in the circumstances, correct and in confirmation of it this revision petition is dismissed.


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