M/s Sree Narayana Tourist Home vs Church Of South India Trust Association (CSITA)

P.B.Suresh Kumar, J.

When this matter came up for admission, Adv.K.R.Vinod entered appearance on behalf of the respondent and agreed that the matter can be heard finally at the admission stage itself. As the learned counsel for the petitioners also agreed to the said course and made available a compilation of photocopies of the relevant documents, the matter was finally heard at the admission stage itself.

Respondents in a proceedings for eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) are the petitioners in this revision petition. The revision petition is instituted challenging an order passed by the Rent Control Court as affirmed by the Appellate Authority in an application filed by the petitioners seeking orders deciding the maintainability of the eviction petition as a preliminary issue. Parties are referred to in this order hereinafter, as they appear in the proceedings before the Rent Control Court.

The petitioner is an association called “Church of South India Trust Association.” One Sri.Babu Abraham represented the petitioner in the proceedings claiming to be its Power of Attorney holder and Chairman. Eviction was sought in the proceedings in respect of three different portions of a building described in items 1 to 3 of the schedule to the eviction petition. It is pleaded in the eviction petition that item No.1 was leased out to the respondents on 06.06.2008 on a monthly rent of Rs.87,000/-, item No.2 was leased out to the respondents on 15.06.2009 on a monthly rent of Rs.22,700/-and item No.3 was leased out to the respondents on 07.01.2011 on a monthly rent of Rs.42,000/-. It is alleged in the eviction petition that the respondents committed default in remitting the rent payable and a demand notice was accordingly sent to the respondents claiming Rs.85,95,839/-and the respondents have not complied with the said demand. It is on the above premise, eviction of the respondents was sought in the proceedings under Section 11(2)(b) of the Act.

On entering appearance in the proceedings, the respondents filed I.A.No.1 of 2021 invoking Rule 14 of Order XIV of the Code of Civil Procedure seeking a direction to the petitioner to produce the lease agreements dated 06.06.2008, 15.06.2009 and 07.01.2011 referred to in the eviction petition as also the original of the Power of Attorney, on the basis of which Sri.Babu Abraham has instituted the eviction petition. It was alleged in the affidavit filed in support of the said application that the said documents are necessary for the respondents to file their counter statement in the eviction petition. The petitioner has not filed any written objection to I.A.No.1 of 2021. Instead, when I.A.No.1 of 2021 was taken up, it was pointed out on behalf of the petitioner that the lease agreements are registered documents which are accessible to the respondents and there is no written Power of Attorney. I.A.No.1 of 2021 was dismissed in the light of the said stand taken by the petitioner. The respondents challenged the order in I.A.No.1 of 2021 before this Court in O.P.(RC) 84 of 2021 and the said original petition was disposed of giving liberty to the respondents to prefer an application in the nature of I.A.No.1 of 2021 afresh after filing a counter statement in the eviction petition.

Thereafter, the respondents filed a detailed counter statement in the eviction petition. In the counter statement, among others, it was contended by the respondents that the authority of the signatory to the eviction petition namely, Sri.Babu Abraham who represents the petitioner is not evident from the records produced along with the eviction petition; that Sri.Babu Abraham is neither the Chairman nor the duly authorised Power of Attorney of the petitioner and that there is therefore no valid authorisation in his favour to institute the eviction petition. It was also contended by the respondents in the counter statement that the rent control petition being one instituted to recover possession of properties alleged to be held under three separate lease agreements stated to have been entered into on three different dates, there is misjoinder of cause of action and the claims for eviction under the three different transactions cannot be combined in one eviction petition. It was also contended by the respondents in the counter statement that there are no agreements or registered agreements between the petitioner and the respondents as asserted by the counsel for the petitioner at the time of hearing of I.A.No.1 of 2021 and that there is no landlord-tenant relationship between the parties as understood in the Act so as to attract the jurisdiction of the Rent Control Court. In order to substantiate the contention that there is no landlord-tenant relationship between the parties as understood in the Act, it was stated by the respondents in the counter statement that pursuant to an arrangement made with the Bishop of the Church of South India, the respondents have taken possession of the land with the skeleton structure of the building after paying an advance of Rs.1,57,75,000/- and have invested more than three crores for the construction of the building into a fully-furnished and functional hotel with lodging facilities and that the transaction being a composite one of land and a few structures with the right to effect improvements, the same cannot therefore be accepted as lease arrangements as understood in the Act. Paragraphs 4 to 8 of the counter statement of the respondents read thus:

“4. The authority of the signatory, Sri. Babu Abraham to represent the Petitioner is not evident from the records produced with the Rent Control Petition. Sri. Babu Abraham is neither the Chairman nor the duly authorized attorney of the Petitioner. There is no valid authorization in his favour.

The Rent Control Petition is filed to recover possession of properties alleged to be held under three separate lease agreements executed on different dates i.e, 06- 06-2008, 15-06-2009 and 07-01-2011. The properties alleged to be leased out are described separately as item No.1, 2 and 3 in the Rent Control Petition. On the averments made in the Rent Control Petition it is clear that there is mis-joinder of cause of action. The claim for eviction under three alleged lease agreements cannot be combined in a single Rent Control Petition.

The notice preceding the Rent Control Petition and the Rent Control Petition refer to three alleged lease agreements dated 06.06.2008, 15.06.2009 and 07.01.2011. The Rent Control Petition does not aver that the three agreements are registered instruments.

However, such an assertion was made by the counsel for the Petitioner at the hearing of I.A No 1 of 2021 and this is recorded in the order dated 09.08.2021 passed by this Hon'ble Court. It is submitted that there is no agreement/s or registered agreement/s as asserted by the counsel for the Petitioner at the hearing of I.A. No. 1 of 2021.

There is no landlord-tenant relationship between the parties as understood in the Kerala (Building and Rent Control) Act, 1965 so as to attract the jurisdiction of this Hon'ble Court under Section 11 of the Act. The denial of title is made bona fide.

The Respondents have paid a deposit amount of Rs.1,57,75,000/- (Rupees One crore fifty seven lakhs and seventy five thousand only) to the CSITA represented by the Bishop of the CSI, North Kerala Diocese, Shornur and taken possession of a parcel of land with the skeletal structures of building/s. The Respondents have invested more than Rs.3 Crores for the construction of the building into a fully furnished and functional hotel with lodging facilities having 2 dormitories and 58 rooms of various standards spread over 4 floors. The transaction is a composite one of land and a few structures with right to effect improvements and not a lease of a shop room or premises as understood in the Kerala (Building and Rent Control) Act. 1965.”

After having filed the counter statement aforesaid, the respondents filed another interlocutory application in the nature of I.A.No.1 of 2021 as permitted by this Court in O.P.(RC) No.84 of 2021 calling upon the petitioner to produce before the court, the Power of Attorney, on the basis of which Sri.Babu Abraham has instituted the eviction petition and the three lease agreements referred to therein. The said application was allowed by the Rent Control Court and on allowing the said application, deviating from the stand taken in I.A.No.1 of 2021, the petitioner produced a Power of Attorney executed by them through its honorary Secretary and honorary Treasurer in terms of which one Rt.Rev.D.N.Fenn or his nominees and three persons have been appointed as its attorneys. The petitioner has also produced in court, pursuant to the order in the above interlocutory application, a document styled as a lease agreement dated 06.06.2008, a document styled as a licence agreement dated 15.06.2009 as also a document styled as “indenture of conveyance” dated 17.01.2011 purported to be the documents evidencing the transactions referred to in the eviction petition.

The respondents thereupon filed I.A.No.6 of 2022 seeking orders deciding the question of maintainability of the eviction petition as a preliminary issue, contending mainly that Sri.Babu Abraham has no authority to institute the eviction petition; that there is misjoinder of cause of action and that there is no landlord-tenant relationship. Paragraphs 3 to 8 of the affidavit filed in support of I.A.No.6 of 2022 read thus:

“3. The petitioners herein has filed his counter in the rent control petition on 20.09.2021. The counter dated 20.09.2021 filed by the petitioners may be treated as part of this affidavit.

In the counter filed by these petitioners, the title of the landlord has been specifically denied.

Apart from the above contentions, the petitioners herein, in the above-mentioned counter, has also taken the contention that a single legal proceeding initiated based on three sets of buildings alleged to have been entrusted separately in the years 2008, 2009 and 2011 is not maintainable under law.

In addition to the above, contentions the petitioners, in their counter, have also taken a contention that the petitioners herein were entrusted with some area which were only in a structural form and the entire buildings as it stands now to run a tourist home were built by the petitioners using their money and hence the provisions of Kerala Building lease and rent control act will not be applicable in the instant case.

As per the second proviso of Section 11 of the Act, it is the duty of this Hon'ble Court to decide on the title of the land lord or claim of permanent tenancy, etc., separately.

On 22.03.2022, the petitioner in the rent control petition (respondent herein) has filed a petition for issuance of show cause to these petitioners, under section 12 (1) of the Act for an order from this Hon'ble Court for a direction against these Petitioners to pay entire arrears of rent.”

It is seen that the Rent Control Court took the view that the respondents have denied in their counter statement the title of the plaintiffs over the building and consequently, proceeded to consider the question as to whether the facts disclose a bona fide denial of title of the petitioner by the respondents and held that there is no bona fide denial of title. The Rent Control Court also took the view that the respondents have raised the question of maintainability of the eviction petition, as the petitioner has sought eviction of three portions of the building having different door numbers in one proceedings and proceeded to consider the question as to whether the eviction petition could be said to be maintainable on that ground and held that a single petition is maintainable, as the parties are one and the same in all the transactions referred to in the eviction petition.

Aggrieved by the decision of the Rent Control Court aforesaid, the respondents preferred an appeal before the Appellate Authority and the Appellate Authority took the view that in the light of the decision of the Full Bench of this Court in Jamal v. Safia Beevi, 2005 (2) KLT 359, the eviction petition is maintainable inasmuch as the parties to all the transactions referred to in the eviction petition are one and the same. The Appellate Authority also took the view that inasmuch as the respondents have stated in a writ petition filed against Munnar Grama Panchayat as W.P.(C) No.24759 of 2022 that there is landlord-tenant relationship between the petitioner and the respondents, the respondents cannot be heard to contend that there is no landlord-tenant relationship. Consequently, the appeal was dismissed. It is aggrieved by the said decisions of the authorities below that the respondents have come up with this revision petition.

Sri.P.B.Krishnan, the learned counsel for the respondents contended at the outset that the authorities below have misdirected themselves in the matter of deciding the maintainability of the eviction petition raised by the respondents. It was argued that instead of deciding the question whether the eviction petition is maintainable, the authorities have decided the question whether there is bona fide denial of title of the petitioner by the respondents, which is not a question raised by the respondents at all. It was also argued by the learned counsel that the contentions relating to the maintainability raised in paragraphs 3, 4 and 5 of the counter statement as reiterated in paragraph 3 of the affidavit filed in support of I.A.No.6 of 2022, have not been considered at all by the Rent Control Court. It was pointed out by the learned counsel that the Appellate Authority considered the question of misjoinder of cause of action, ignoring the pleadings of the parties, the evidence on record and even the written submissions made by the respondents. The learned counsel has also argued based on the Power of Attorney produced by the petitioner that the same does not in any manner empower Sri.Babu Abraham to institute the eviction petition on behalf of the petitioner. The learned counsel has elaborated the said submission placing reliance on the contents of the Power of Attorney and the various decisions of this Court. It was also argued by the learned counsel that the argument of misjoinder is based on the subject matter of jurisdiction as also the territorial jurisdiction and the same have not been conceived at all by the authorities below. It was contended by the learned counsel that the Rent Control Court has no jurisdiction over the subject matter of the transactions disclosed in the documents referred to in the eviction petition, especially, in the light of the provision contained in the License Agreement dated 15.06.2009 to the effect that only the Civil Court at Ottapalam has the jurisdiction to entertain any lis in respect of the same and the provision contained in the agreement dated 07.01.2011 that the disputes between the parties are to be resolved by recourse to arbitration. According to the learned counsel, the said documents cannot be construed as lease deeds. It was also argued by the learned counsel that in any event, to construe the two documents as leases, the documents will have to be relied on and since the transactions referred to therein are seen to have been entered into for a period of ten years, the documents cannot be treated as lease deeds for want of registration in view of Section 49 of the Registration Act. The documents are also not properly stamped and are liable to be impounded under Section 33 of the Stamp Act, as argued by the learned counsel. It was also argued by the learned counsel that the concept of misjoinder arises on account of the bundle of facts that insists that the matter covered by the three separate lease deeds should go to a Civil Court or arbitration. It was also argued by the learned counsel that the subject matter of jurisdiction and territorial jurisdiction are ignored for the purpose of conferring jurisdiction on the Rent Control Court. In the context of the view taken by the authorities below, it was also argued by the learned counsel that the theory that every case involving only two contestants can be made the subject matter of a single rent control petition, is inapplicable to a case where the cause of action of the bundle of facts includes separate jurisdiction clauses.

Per contra, Sri.K.R.Vinod, the learned counsel for the petitioner contended that the eviction petition is maintainable and none of the contentions raised by the respondents as regards the maintainability of the eviction petition is sustainable in law. The learned counsel has relied on a large number of decisions of this Court and that of the Apex Court in support of the various arguments advanced by him.

We have scrutinized the pleadings of the parties as made available to us and also considered the elaborate submissions made by the learned counsel for the parties.

As noted, even though the eviction petition was one instituted on behalf of the petitioner by a person who is stated to be the Power of Attorney holder of the petitioner, the Power of Attorney was not produced along with the eviction petition. Initially, when the respondents sought orders for production of the Power of Attorney, on the basis of which the eviction petition was instituted, the stand taken by the petitioner was that there is no Power of Attorney. Nevertheless, in the counter statement filed by the respondents, it was contended by them that Sri.Babu Abraham who has instituted the eviction petition on behalf of the petitioner has no authority to represent the petitioner. It is thereafter that the petitioner, deviating from their earlier stand, produced the Power of Attorney. It is in the light of the contents of the said Power of Attorney that it was argued on behalf of the respondents in I.A.No.6 of 2022 that the eviction petition instituted by Sri.Babu Abraham is not maintainable for want of authority for him to institute the eviction petition on behalf of the petitioner. Similarly, the stand taken by the petitioner earlier at the time of filing I.A.No.1 of 2021 is that the lease agreements referred to in the eviction petition are registered instruments. It was later, the petitioner produced the said documents in the light of the order passed by this Court in O.P. (RC) No.84 of 2021. It is on the basis of the contents of the three documents evidencing the transactions referred to in the eviction petition as produced by the petitioner in the proceedings that it was argued on behalf of the respondents that in the nature of the said documents, the eviction petition is not maintainable.

It is not clear from the materials on record as to whether the various arguments raised before this Court to contend that the eviction petition is not maintainable have been raised before the Rent Control Court. But it is seen that a written argument note has been filed before the Appellate Authority on 25.02.2023 on behalf of the respondents raising the various contentions raised before this Court relating to the maintainability of the eviction petition. It is seen that, it is thereafter that the matter was heard by the Appellate Authority on 27.02.2023 and the impugned decision was rendered on 28.02.2023 without adverting to the various contentions raised by the respondents. The petitioner has no case that such an argument note has not been filed on behalf of the respondents. In the circumstances, inasmuch as the various contentions raised by the respondents relating to the maintainability of the eviction petition are to be decided having regard to the pleadings of the parties and the documents produced by them, we deem it appropriate to remit this matter to the Appellate Authority with a direction to consider the appeal afresh. We take this view in the light of the contentions taken by the respondents that the documents evidencing the transactions referred to in the eviction petition as made available by the petitioner in the proceedings are not admissible in evidence, not properly stamped etc.

In the result, the revision petition is allowed, the impugned judgment of the Appellate Authority is set aside and R.C.A.No.1 of 2022 is directed to be considered afresh after affording the parties an opportunity of hearing. The parties are directed to appear before the Appellate Authority on 12.06.2023. The Appellate Authority shall dispose of the appeal within one month thereafter.