Kerala High Court
Parvathy Antharjanam vs Eldho Paul on 3 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:75648
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
OP (RC) NO. 104 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 05.07.2024 IN RCP NO.91 OF
2020 OF III ADDITIONAL MUNSIFF COURT, ERNAKULAM (RENT CONTROL)
PETITIONER(S)/PETITIONERS 1-3, 5-15:
1 PARVATHY ANTHARJANAM
AGED 78 YEARS
WIFE OF LATE E.A SANKARANARAYANAN BHATTATHIRIPAD,
HOUSEWIFE, RESIDING AT SREESYLAM-EDATHAMARAMANA,
37/1953, KALOOR-KADAVANTHRA ROAD, KALOOR P.O.,
ERNAKULAM DISTRICT, PIN - 682017
2 E.S. MADHU
AGED 55 YEARS
SON OF LATE E.A SANKARANARAYANAN BHATTATHIRIPAD,
BUSINESS, RESIDING AT SREESYLAM-EDATHAMARAMANA,
37/1953, KALOOR-KADAVANTHRA ROAD, KALOOR P.O.,
ERNAKULAM DISTRICT, PIN - 682017
3 E.S. MAHESH
AGED 53 YEARS
SON OF LATE E.A SANKARANARAYANAN BHATTATHIRIPAD,
BUSINESS, RESIDING AT SREESYLAM-EDATHAMARAMANA,
37/1953, KALOOR-KADAVANTHRA ROAD, KALOOR P.O.,
ERNAKULAM DISTRICT, PIN - 682017
4 NALINI ANTHARJANAM,
AGED 76 YEARS
WIFE OF E.A SREEDHARAN BHATTATHIRIPAD, HOUSEWIFE,
RESIDING AT RAJASREE-EDATHAMARAMANA, 63/477,
CENTRAL SCHOOL ROAD, KADAVANTHRA P.O,
ERNAKULAM DISTRICT, PIN - 682020
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OP (RC) NO. 104 OF 2024
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5 RAJESH E.S.
AGED 54 YEARS
SON OF E.A SREEDHARAN BHATTATHIRIPAD, BUSINESS,
RESIDING AT RAJASREE-EDATHAMARAMANA, 63/477,
CENTRAL SCHOOL ROAD, KADAVANTHRA P.O,
ERNAKULAM DISTRICT, PIN - 682020
6 SREEJA E.S.
AGED 52 YEARS
DAUGHTER OF E.A SREEDHARAN BHATTATHIRIPAD,
BUSINESS, RESIDING AT RAJASREE-EDATHAMARAMANA,
63/477, CENTRAL SCHOOL ROAD, KADAVANTHRA P.O,
ERNAKULAM DISTRICT, PIN - 682020
7 E.A. RAMAN BHATTATHIRIPAD
AGED 86 YEARS
SON OF LATE SRI. ARYAN BHATTATHIRIPAD, BUSINESS,
RESIDING AT EDATHAMARAMANA, 37/314 A,
KALOOR-KADAVANTHRA ROAD, KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 682020
8 SREEDEVI ANTHARJANAM
AGED 73 YEARS
WIFE OF E.A. RAMAN BHATTATHIRIPAD, HOUSEWIFE,
RESIDING AT EDATHAMARAMANA, 37/314 A,
KALOOR-KADAVANTHRA ROAD, KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 682020
9 E.R. MINI
AGED 50 YEARS
DAUGHTER OF E.A. RAMAN BHATTATHIRIPAD,
BANK EMPLOYEE, RESIDING AT EDATHAMARAMANA,
37/314 A, KALOOR-KADAVANTHRA ROAD,
KADAVANTHRA P.O., ERNAKULAM, PIN - 682020
10 E.A. VIRUPAKSHAN BHATTATHIRIPAD
AGED 74 YEARS
SON OF LATE VALIYA ARYAN BHATTATHIRIPAD,
BUSINESS, RESIDING AT MALIKA-EDATHAMARAMANA,
37/314A, KALOOR-KADAVANTHRA ROAD,
KADAVANTHRA P.O., ERNAKULAM, PIN - 682020
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11 SANTHA ANTARJANAM
AGED 66 YEARS
RETIRED PROFESSOR,
RESIDING AT MALIKA-EDATHAMARAMANA, 37/314A,
KALOOR-KADAVANTHRA ROAD, KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 682020
12 GAUTHAM ARYAN
AGED 44 YEARS
BUSINESS,
RESIDING AT MALIKA-EDATHAMARAMANA, 37/314A,
KALOOR-KADAVANTHRA ROAD,
KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 682020
13 E.V. NEELIMA
AGED 42 YEARS
HOUSEWIFE,
RESIDING AT MALIKA-EDATHAMARAMANA, 37/314A,
KALOOR-KADAVANTHRA ROAD,
KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 682020
14 NIRMALA K.
AGED 74 YEARS
WIFE OF LATE CHERIYA ARYAN BHATTATHIRIPAD,
RETIRED PROFESSOR,
RESIDING AT EDATHAMARAMANA, 37/314,
KALOOR-KADAVANTHRA ROAD,
KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 682020
BY ADVS.
BASIL MATHEW
NINAN JOHN
SANJANA SARA VARGHESE ANNIE
ARYA A.R.
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OP (RC) NO. 104 OF 2024
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RESPONDENT(S)/RESPONDENT/PETITIONER NO.16:
1 ELDHO PAUL
AGED 49 YEARS
SON OF M.A. PAULOSE, BUSINESS, E & B HARDWARES,
C.C. 55/1018, GROUND FLOOR, EDATHAMARAMANA
SHOPPING COMPLEX (E.M.S. SHOPPING COMPLEX)
KADAVANTHARA, KOCHI, ERNAKULAM, PIN - 682020
2 SARITHA ARYAN
AGED 49 YEARS
DAUGHTER OF LATE CHERIYA ARYAN BHATTATHIRIPAD,
MEDICAL PRACTITIONER, RESIDING AT EDATHAMARAMANA,
37/314, KALOOR-KADAVANTHRA ROAD, KADAVANTHRA
P.O., ERNAKULAM DISTRICT, PIN - 682020
BY ADV BABU CHERUKARA
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:75648
OP (RC) NO. 104 OF 2024
5
JUDGMENT
Amit Rawal, J.
1. The present revision petition is directed against the impugned order dated 05.07.2024 in R.C.P.No.91/2020 whereby on the application submitted by the respondent - tenant as culled out in the objection by denying the title of all the rent petitioners, parties were directed to lead evidence regarding the maintainability of bonafides of the title as preliminary issue. It is contended that the petitioners in the rent petition had categorically asserted that in the year 1984 after having surrendered the piece of land for developing Sahodaran Ayyappan Road had constructed a 'Edathamaramana Shopping Complex' consisting of 67 shops. Cochin Municipal Corporation assigned the said commercial complex as C.C.No.55/1017 to 55/1075. Though the commercial complex was constructed jointly by the co-owners but for the sake of convenience and 2024:KER:75648 OP (RC) NO. 104 OF 2024 6 for easy collection of rent, shop rooms were assessed individually in the name of some of above mentioned family members and lease deeds were executed in the name of said family members. Building bearing Cochin Corporation Door No.55/1018 having carpet area of 235.6 sq. ft. situated in the ground floor was let out to the respondent - tenant by petitioner No.15 as per the lease deed dated 31.03.2013. Since they have now decided to expand their business and decided to start a supermarket in the ground floor of the reconstructed building and basement as car parking, submitted fifty one(51) petitions for seeking ejectment on the ground of bonafide necessity. Out of all 51 petitions, in seven(7) cases tenant was proceeded ex parte and ejectment order has been passed, remaining forty(43) petitions are pending. In all the aforementioned rent petitions respondent - tenant has taken the objection of denial of the title of all the petitioners by admitting the relationship of landlord - tenant vis-a-vis one of the 2024:KER:75648 OP (RC) NO. 104 OF 2024 7 petitioners ie., the executant of the lease deed.
2. Petitioners have also moved an application for clubbing of all the rent petitions as it would unnecessarily protract the trial of the rent petition for the respondent - tenant would be made to give statement in all the forty three (43) cases. Even otherwise the trial of the rent petition bearing No.91/2020 is at infancy stage, thus question of title should not have been ordered to be decided as preliminary issue.
3. On the other hand, Sri.Babu Cherukara, learned counsel appearing on behalf of the respondent submitted that tenant has admitted the lease deed vis-a-vis petitioner No.15 but opposed the title of other co-owners and rightly so, the Rent Controller framed the issue of denial of title as preliminary issue as the other petitioners in the rent petition are not necessary and proper parties.
4. We have heard the learned counsel for the parties and appraised the paper book.
2024:KER:75648 OP (RC) NO. 104 OF 2024 8
5. There is categoric averment in paragraph Nos.6 and 7 of the rent petition whereas in paragraph No.7 of the objection petition, respondent- tenant has admitted the premises to have been taken on lease by petitioner No.15. Paragraph Nos.6 and 7 of the rent petition and paragraph No.7 of the objection petition read as under:
"Paragraph Nos.6 and 7 of the rent petition
6. Even though the said commercial complex was constructed jointly by the co-owners, for the sake of convenience and for easy collection of rent, the shop rooms were assessed individually in the name of some of the above mentioned members of the family. As such, lease deeds were also executed in the name of the said member of the family in the capacity as Lessor.
7. Building bearing Cochin Corporation Door No. 55/1018 having a carpet area of 235.6 Sq. Ft. situated in the ground floor of said Edathamaramana Shopping Complex was let out to the respondent by Petitioner No. 15 as per lease deed dated 31.3.2013. The aforesaid building is more particularly described in the schedule hereunder and hereinafter referred to as the "Schedule Building". Even though in the lease deed, the area of the Schedule Building was shown as 219.5 Sq. ft, the actual area is 235.6 Sq. ft. The present monthly rent of the Schedule Building is Rs. 6,468/-. The respondent is conducting a hardware business by name E & B hardwares in the Schedule Building.
2024:KER:75648 OP (RC) NO. 104 OF 2024 9 paragraph No.7 of the objection
7. It is true that building bearing Cochin Corporation Door No. 55/1018 having a carpet area of 235.6 Sq. Ft. situated in the ground floor of said Edathamaramana Shopping Complex was let out to the respondent by Petitioner No. 15 as per lease deed dated 31.03.2013. It was not after measuring the petition schedule building, the lease agreement was executed. The lease agreement was executed upon the assurances made by the petitioner. The respondent has no objection regarding the monthly rent mentioned in the petition. The respondent has been conducting a hardware store in the name E&B hardware in the Schedule Building from the date of lease."
6. It is settled law that rent petition for ejectment can be filed by any of the co-owners. Similarly, in order to avoid the objection from the tenant of non impleadment of all the co-owners, petitioners - landlords as an abundant caution instituted a petition on behalf of all the co-owners given the consent in favour of petitioner No.15 executant of lease deed. All these factors have not been noticed in the impugned order, which reads as under:
2024:KER:75648 OP (RC) NO. 104 OF 2024 10 "Both sides represented. Respondent represented. The respondent is denying the title of petitioners in their objection. Hence this court is of the view that by virtue of Sec 11(1) of the Kerala Buildings Lease & Rent Control Act, bonafide of the question raised regarding the denial of title of petitioner with regard to the petition schedule property be heard first. Since common question of law was raised by the respondents in all other connected rent control petition's, this common question be considered altogether. Hence for hearing on maintainability as to the bonafides of question of title, Last chance."
7. Perusal of the impugned order do not reflect the application of mind. While sitting on this roster, we have come across many orders of such nature wherein Rent Controllers in a total slip-shod manner pass orders without adverting to the arguments as well as pleadings of the parties. Such exercise in our considered view is not proper and liable to be deprecated. Be that as it may.
8. Since there is already candid admission by the respondent - tenant with regard to the tenancy to have 2024:KER:75648 OP (RC) NO. 104 OF 2024 11 been taken on rent by petitioner No.15 the executant of lease deed, there was no need for framing of the issue regarding denial of the title and that too, as preliminary issue. Accordingly, the impugned order is set aside. Revision petition stands allowed. Petitioners are at liberty to press the application for clubbing all the petitions in accordance with law.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE nak 2024:KER:75648 OP (RC) NO. 104 OF 2024 12 APPENDIX OF OP (RC) 104/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE RENT CONTROL PETITION IN R.C.P. 91/2020 OF THE RENT CONTROL COURT, ERNAKULAM Exhibit P2 THE TRUE COPY OF THE OBJECTION DATED 19.05.2023 FILED BY THE FIRST RESPONDENT IN RCP 91/2020 ON THE FILES OF HON'BLE RENT CONTROL COURT, ERNAKULAM ALONG WITH ITS TYPED ENGLISH TRANSLATION.
Exhibit P3 THE TRUE COPY OF I.A. NO. 1/2024 IN RCP 91/2020 ON THE FILES OF HON'BLE RENT CONTROL COURT, ERNAKULAM Exhibit P4 THE TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT IN I.A. NO. 1/2024 IN RCP 91/2020 DATED 07.03.2024 ON THE FILES OF HON'BLE RENT CONTROL COURT, ERNAKULAM.
Exhibit P5 THE TRUE COPY OF THE ORDER DATED 05.07.2024 IN RCP 91/20220 ON THE FILES OF THE RENT CONTROL COURT, ERNAKULAM