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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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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3
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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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:
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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
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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
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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.
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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.
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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:
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"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
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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
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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
