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2006 Supreme(Ker) 115
Judges : M.RAMACHANDRAN,K.T.SANKARAN
K.M.Paul - Appellant
Versus
K.Pradeep - Respondent
Case No : RCR.No.492 of 2005 B
Decided On : 02/23/2006
Advocates Appeared :
For the Appellant : V. Giri, Advocate For the Respondent: R. Sudhish, M. Manju, Advocates.
Headnote:
Tenancy and Land Lord - Kerala Buildings (Lease and Rent Control) Act, 1965 - Section. 11( 2)(b) and 11( 3) - Tenancy - Arrears of rent - Revision petitioner, tenant, challenging concurrent findings of the Rent Control Court and Appellate Authority under Sections 11(2) (b) and 11(3) of Kerala Buildings (Lease and Rent Control) Act - Revision petitioner tenant contended that the authorities below erred in passing an order under Section 11(2)(b) as it was found that the landlord failed to prove the entrustment in 1994 and the rate of rent at Rs.500/- per month - He contended that a landlord can get an order of eviction under Section 11(2)(b) only on the strength of his case and not on the basis of the contentions raised by the tenant - Held, The Scheme of the Act is that the landlord need not repay or re-deposit such amount and the tenant should not be allowed to withdraw such deposit. Such payment or deposit should be towards the rent found to be in arrears. This answer would also lead us to the conclusion that the Rent Control Court is entitled and has jurisdiction to pass an order under S.12(b) of the Act, on the basis of the rate of rent or period of the arrears of rent as stated by the tenant, if the court finds that the landlord failed to prove his case regarding the rate of rent or the period during which the rent fell in arrears.The co-ownership right in the building where the hotel is being run would not disentitle the landlord from claiming eviction of the revision petitioner. The first proviso to S.11(3) would apply only if the landlord has another building of his own in his possession. The fractional interest of the respondent/landlord in the hotel business could not be a ground for denying the claim for eviction of the tenant from the petition schedule building. Even if the landlord is having other business that is not a ground to doubt the bona fide need put forward by him to start a business in the petition schedule building - The proceeding for violation of an order passed by the court during the pendency of Appeal is a separate and independent proceeding and it is not dependant upon the judgment to be passed in the appeal. The disposal of this Rent Control Revision would not deprive the right if any of the tenant to challenge the orders in the aforesaid application in accordance with law, if he is entitled to do so under law.
Sankaran, J.
The revision petitioner, the tenant, challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Sections 11 (2) (b) and 11(3) of the Kerala Buildings (lease and Rent Control) Act (hereinafter referred to as ‘the Act’).
2. The Rent Control Petition was filed by the respondent under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Act. The Rent Control Court rejected the claim under Section 11(4)(ii). The landlord has not challenged the order of the Rent Control Court in appeal and, therefore, the decision under Section 11(4)(ii) has become final. The case of the landlord is that he acquired the property in the year 1978 and the building was entrusted payment of rent for the period from 1.1.1995 and in spite of notice he did not pay the arrears of rent schedule building for conducting Photostat and real estate business. According to him, he has no job or income.
3. The tenant disputed the entrustment of the building on 1.1.1994. He contended that he was a tenant from 1976 onwards on a monthly rent of Rs.25/-. The respondent the landlord, purchased the building only subsequently and the tenant adorned to him and paid rent up to June 1998. The tenant disputed the case of the landlord that the rent is in arrears from 1.1.1995. The bona fide need was disputed by the tenant and he claimed the benefit of the second proviso to section 11(3) of the Act.
4. Before the Rent Control Court the landlord was examined as PWI and Exts.A1 and A1(a) were marked. The tenant was examined as RWI and Exts.B1 to B36 were marked on his side. As stated earlier, the Rent Control Court found against the claim of the landlord under section 11(4)(ii). In so far as the landlord failed to prove the entrustment in 1994, fixing a monthly rent of Rs.500/-. It was also found by the authorities below on evidence that the tenant failed to prove that he paid rent up to june 1998. The authorities below found that since that landlord failed to prove that the rate of rent was Rs.500/- the tenant is liable to pay only Rs.25/- as monthly rent and that he has kept rent in arrears from 1.1.1995 onwards.
The learned counsel for the revision petitioner/tenant contended that the authorities below erred in passing an order under Section 11(2)(b) as it was found that the landlord failed to prove the entrustment in 1994 and the rate of rent at Rs.500/- per month. He contended that a landlord can get an order of eviction under Section11 (2)(b) only on the strength of his case and not on the basic of the contention raised by the tenant. The learned counsel relief on the decision of the Supreme Court in Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee and others ((2004) 7 SCC 708), wherein it is held that the “plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant, if any”. In that case, the Division Bench of the High Court reversed the judgment of the District statement of the Wakf Board had no such case in the plaint. The Supreme Court held that the admission in the written statement of the Wakf Board would not bind the second defendant who contested the suit and the plaintiff could succeed on the strength of its case and not on the weakness of the defence.
6. It is a settled principle of law that in a suit based on title, the plaintiff can succeed only on proof of his title and mere destruction of the defendant’s title carries the plaintiff nowhere (see Moran Mar Baselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others (AIR 1954 SC 526); Brahma Nand Puri v. Neki Puri Since deceased represented by Mathra Puri and another (AIR 1965 SC 1506); Jagdish Narain v. Nawab said Ahmed Khan (AIR 1946 PC 59); Baha Kartar Singh Bedi v. Dayal Das and others (AIR 1939 PC 201) and Kunhikannan v. Damodaran Nambeesan (1992 (2) KLJ 625)
7. The question of title to immovable property is different from a claim for money or a claim fo
