Chandramathi vs Pandikasala Niyas
2022 Latest Caselaw 8728 Ker

            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

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

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

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

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