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High Court of Kerala
K.A. Mohamed Shafi, J.
K C P K C V Co - Appellant
Versus
Venkitakrishnan & Ors - Respondent
C.R.P. No. 2296 of 1993
Decided On : 22-01-1997
Kerala Act 2/1965 - The court analyzed the provisions of the Kerala Act 2/1965, particularly S.11(1) which provides for eviction of tenants. The court also referred to the definition of 'building' under S.2(1) of the Act, which includes the building and the garden, ground, well, tank, and structures appurtenant to the building. The court concluded that the provisions of the Act apply only to buildings as defined in the Act.
Fact of the Case:
The revision petitions challenge the order passed by the lower court in an eviction case. The tenants contended that the civil court has no jurisdiction to pass a decree for eviction without recourse to any of the grounds for eviction mentioned in S.11 of the Kerala Act 2/1965. The execution court rejected this contention and directed the decree holder to deposit the value of improvements. The revision petitioners challenge this order.
Finding of the Court:
The court analyzed the provisions of the Kerala Act 2/1965 and the definition of 'building' under S.2(1) of the Act. It concluded that the claim of permanent tenancy referred to in the second proviso to S.11(1) is in respect of a building as defined in S.2(1) of the Act and not in respect of the tenancy contemplated under the provisions of the Land Reforms Act. The court also held that the tenants cannot raise the contention that the decree passed by the civil court is null and void since they did not raise this contention in the previous proceedings. The court further noted that the dominant intention of the parties in the lease was to lease out the building along with the land to run a petrol outlet, and not to lease out the building as provided under the Kerala Act 2/1965.
Ratio Decidendi: The court held that the civil court has jurisdiction to pass a decree for eviction in a suit emanating from a proceedings before the Rent Control Court filed for eviction under the provisions of the Kerala Act 2/1965. The court also held that the tenants cannot raise the contention that the decree passed by the civil court is null and void since they did not raise this contention in the previous proceedings. The court further held that the lease involved in the case is in respect of the land and building, and not just the building as defined in S.2(1) of the Kerala Act 2/1965.
Result: The order passed by the execution court is confirmed and the revision petitions are dismissed. The parties are directed to bear their respective costs in these revision petitions.
K.A. Mohamed Shafi, J.
1. These revision petitions are filed challenging the order dated 20-11-93 passed by the Sub Court, Palakkad in E. P. No. 42/92 in O. S. No. 223/80. The. 4th respondent 4th defendant in the E. P. is the revision petitioner in CRP No. 2296/93, the 5th respondent in the E. P. is the revision petitioner in CRP No. 2302/93 and respondents 3 and 4 - defendants 3 and 4 in the E. P. are the revision petitioners in CRP. No. 2341/93. Since all the revision petitions are filed challenging the very same order passed by the lower court, they are heard and disposed of by this common order.
2. The 1st respondent in these revision petitions filed RCP 12/79 for eviction of the petition schedule premises before the Rent Control Court, Palakkad against the revision petitioner in CRP No. 2296/93 which was a partnership firm constituted by one Velayudhan and Pazanimala as its partners. The lease of the property was to run a petrol outlet under their partnership. They contended that the Rent Control Court has no jurisdiction to entertain and try the petition for eviction since it is a lease of land or compsite lease of land and building and they are entitled to permanent tenancy.
3. The Rent Control Court considered that issue as a preliminary issue since the 2nd proviso to S.11(1) of the Kerala Act 2/1965 was attracted and by the order dated 21-8-1979 found that the lease involved in the case not of building and therefore, the Rent Control Court has no jurisdiction to grant eviction and the remedy for the petitioner is to file a suit for eviction in the civil court. Accordingly the Rent Control Court dismissed the RCP.
4. Thereafter the landlord 1st respondent filed O. S. No. 223/80 before the Sub Court, Palakkad for recovery of possession of the plaint schedule properties with arrears of rent and cost. Since the defendants therein raised a plea of permanent tenancy by claiming commercial lease under S.106 of the Kerala Land Reforms Act, the Sub Court referred the question of tenancy to the Land Tribunal for decision under S.125(3) of the Kerala Act 1/64 as amended. The Land Tribunal by order dated 26-11-1982 found that the defendants are not lessees under S.106 of the K.L.R. Act. The Sub Court accepted the finding of the Land Tribunal and decreed the suit for recovery of possession with arrears of rent by the decree and judgment dated 28-2-1983.
5. Though the defendants in the suit filed A. S. No. 397/83 before this court challenging the decree and judgment passed by the Sub Court, this court confirmed the decree and judgment and dismissed the appeal directing the execution court to ascertain the value of improvements effected by the defendants and allowed delivery of possession to the plaintiff only on the deposit of the value of improvements.
6. Though A.F.A. Nos. 178/91 and 39/92 were filed against the judgment of the single Judge of this Court in A.S.No. 397/83, the Division Bench of this Court dismissed both these appeals.
7. Thereafter the 1st respondent filed the above E. P. before the Sub Court for the issue of a commission to estimate the value of improvements due to the respondents in the E. P. and for delivery of possession of the property. The revision petitioners herein and the other respondents in the E. P. resisted the E. P. by contending inter alia that there is no executable decree in this case since the decree passed by the trial court is not in terms of S.11(1) of the Kerala Buildings (Lease & Rent Control) Act, 1965. The execution court negatived the contention raised by the respondents and directed the 1st respondent decree holder to deposit the batta for the issue of a commission to estimate the value of improvements effected by the respondents in the E. P. in the decree schedule property, stating that delivery of possession will be given to the decree holder on deposit of the value of improvements so estimated by the commissioner. That order is challenged by the revision petitioners in these revision p
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