IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
RCREV.NO.406 OF 2018
AGAINST THE JUDGMENT OF THE ADDITIONAL RENT CONTROL APPELLATE
AUTHORITY - II (II ADDITIONAL DISTRICT JUDGE), KOZHIKODE
DATED 30.07.2018 IN R.C.A.NO.63 OF 2017, PREFERRED AGAINST
THE ORDER OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-I),
KOZHIKODE DATED 21.01.2017 IN R.C.P.NO.33 OF 2014
REVISION PETITIONERS:
1 CHANDRAMATHI
AGED 72 YEARS
W/O.THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL
HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE - 673 611.
2 BAIJUNATH.T.
AGED 53 YEARS
S/O.THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL
HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE - 673 611.
3 JAYAMOHAN.T.
AGED 49 YEARS
S/O.THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL
HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE - 673 611.
4 MANOJ.T.
AGED 47 YEARS
S/O.THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL
HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE - 673 611.
5 VIJESH.T.
AGED 45 YEARS
S/O.THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL
HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE - 673 611.
6 SHAJI.T.
AGED 43 YEARS
S/O.THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL
HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE - 673 611.
2
R.C.R.No.406 of 2018
BY ADVS.
P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
RESPONDENTS:
1 PANDIKASALA NIYAS
AGED 43 YEARS
S/O.PANDIKASALA MUHAMMED KUTTY, RESIDING AT
NIYAS NIVAS IN FEROKE AMSOM, NALLUR DESOM OF
KOZHIKODE TALUK, KOZHIKODE - 673 631.
2 KARATTIYATTIL BEERAN
S/O.MUHAMMED, AGED 64, RESIDINGA AT
KARATTIYATTIL HOUSE, CHANDAKADAVU,
FEROKE P.O., KOZHIKODE - 673 631.
3 KUZHIYAMBADATH SADIA
W/O.BEERAN, AGED 54, RESIDING AT KARATTIYATTIL
HOUSE, CHANDAKADAVU, FEROKE P.O.,
KOZHIKODE - 673 631.
4 AIYSHA NIYAS
D/O.PANDIKASALA NIYAS, AGED 17, KARATTIYATTIL
HOUSE, CHANDAKADAVU, FEROKE P.O.,
KOZHIKODE - 673 631.
5 FATHIMA NIYAS
D/O.PANDIKASALA NIYAS, AGED 15, KARATTIYATTIL
HOUSE, CHANDAKADAVU, FEROKE P.O., KOZHIKODE -
673 631.
BY ADV.
SRI.R.RAMADAS
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
R.C.R.No.406 of 2018
ORDER
Ajithkumar, J The legal representatives of the respondent in R.C.P.No.33 of 2014 on the file of the Rent Control Court (Additional Munsiff-I), Kozhikode, are the petitioners in this Rent Control Revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965.
2. The petition for eviction was filed by the respondents-landlords in respect of the petition schedule premises under Section 11(2)(b) and 11(3) of the Act. The bona fide need projected was for the purpose of parking and for that purpose, the petition schedule shop room has to be demolished.
3. The tenant resisted the petition inter alia contending that adequate parking area exists in the premises which is stipulated by the Corporation, that the property has sufficient parking area as is revealed from the plan approved by the Corporation. After the petition was filed, the petitioners leased out a portion of the ground floor on the south eastern side for starting a coffee shop in the 4 R.C.R.No.406 of 2018 name and style 'cafe Malabary'. It was therefore pointed out that there is no bona fides in the need projected by the respondents.
4. The Rent Control Court held that the bona fide need is not established. But eviction was ordered under Section 11(2)(b) of the Act. The tenant filed a petition under Section 11(2)(c) by depositing the arrears of rent and in terms of the order in I.A.No.774 of 2017, dated 12.04.2017, the order of eviction under Section 11(2)(b) was set aside. Matter was taken up in appeal by the respondents herein. The Rent Control Appellate Authority allowed the appeal and ordered eviction under Section 11(3) of the Act.
5. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
6. The legal representatives of the sole respondent in R.C.P No.33 of 2014 on the file of the Rent Control Court (Additional Munsiff-I), Kozhikode are the revision petitioners. He was the respondent in R.C.A No.63 of 2017 also. The learned counsel appearing for the petitioners would contend 5 R.C.R.No.406 of 2018 that the tenant, Sri.Thazhathel Sreedharan who was the sole respondent, died on 21.4.2018, but without impleading his legal representatives the Appellate Authority allowed the appeal on 30.7.2018 resulting in the order of eviction against a dead person. Date of death of Sri.Thazhathel Sreedharan is not in dispute. From the preface of the appellate judgment it is seen that the appeal was finally heard on 18.7.2018 and disposed on 30.7.2018. Legal representatives of Sri.Thazhathel Sreedharan are the petitioners in this revision.
7. In Gurnam Singh (d) through legal representatives and others v. Gurbachan Kaur (d) by legal representatives and others, [2017 (13) SCC 414] the Apex Court held, "In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non - compliance of Rule 3(2) and Rule 4(3) of Order XXII, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry 6 R.C.R.No.406 of 2018 of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994."
8. In the light of the law laid down as above, the impugned judgment is a nullity. It is true that in the face of the unambiguous language in Rule 6 of Order XXII of the Code, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. In such a case, the judgment may be pronounced, notwithstanding the death, and shall have the same force and effect as if the judgment had been pronounced before the death took place. But here, the death of Sri.Thazhathel Sreedharan was much before hearing of the appeal. So the judgment cannot be saved under Rule 6 of Order XXII of the Code.
In such circumstances, the judgment dated 30.7.2018 of the Appellate Authority is liable to be set aside and the appeal remitted to Appellate Authority. We do so by allowing this revision. The appellant will take appropriate steps before 7 R.C.R.No.406 of 2018 the Appellate Authority to bring the legal representatives of Sri.Thazhathel Sreedharan on record and thereafter the Appellate Authority will proceed to dispose of the appeal in accordance with law.
Sd/-
ANIL K.NARENDRAN JUDGE Sd/-
P.G. AJITHKUMAR JUDGE PV