The Rent Control Court's determination of maintainability is essential before proceeding with eviction, even when a tenant claims an agreement for sale.

JUDGMENT SOUMEN SEN, C.J .

Heard Ms. Pooja Sunil representing Mr. V.M.

Krishnakumar, learned counsel for the petitioner and Ms.

Akheela Farzana, learned counsel for the respondent. 2. This revision application has been filed on the ground that the issue of maintainability was specifically raised by the petitioner in the eviction proceedings. However, without adjudicating upon the said issue, the Rent Control Court is proceeding with the matter. It is submitted that the question of maintainability is fundamental in nature and goes to the very root of the jurisdiction of the Rent Control Court in deciding as to whether the Court is competent to entertain and proceed with the eviction proceedings at all. It is further submitted that the second proviso to Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 , requires the Rent Control Court to decide the issue when the tenant denies the right of the landlord, and that the Rent Control Court cannot proceed with the eviction proceedings without first deciding the said issue.

3. The petitioner claims to have entered into an agreement for sale with the respondent and, on the basis of such agreement, is presently resisting the claim of the landlord. The contention of the petitioner appears to be that, by reason of the execution of the said agreement for sale, the status of the petitioner is no longer a tenant. A Division Bench judgment of this Court in Safeena Salim v. P.A. Subair¹ has decided a similar issue, whether a tenant who approaches the Rent Control Court with a plea that there exists a contract for sale in his favour can contend that the landlord’s right no longer continues as it existed between the landlord and the tenant. The discussion on the said point is contained in paragraph 3 of the said judgment, which reads as follows:

1 2014 (4) KHC 671

“3. The trump card plea of the tenants is that they had a contract of sale in their favour and , therefore, the landlord’s right does not continue to be what it was as between the landlord and the tenants. It is submitted that, as of now, the suit for specific performance of that contract of sale is pending trial. Suffice it for us to say, that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount to create an interest in immovable property either by way of charge or otherwise. It is trite law that even such a decree or order has to undergo the process of execution or enforcement through the competent Court, resulting in transfer of property, either voluntarily or by intervention of Court. It is only then that the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property.

This is the law. That being so, we are unable to conceive that merely because a tenant in possession obtains a contract of sale, there could be any transmutation of the rights and the characteristics of parties for a Court to assume that the possession of a building tenant under Act 2 of 1965 should be treated as one who has been put to be in continuing possession in part performance of the contract of sale. We do not see that the Hon’ble Supreme Court of India, in R. Kanthimathi and Another v. Beatrice Xavier , 2000 KHC 1503 : 2000 (9) SCC 339 : AIR 2003 SC 4149 , has stated to the contrary because, on facts of that case, the entire consideration was paid, and, that decision cannot be applied as a precedent in law on the facts of this case as that decision was rendered on the peculiar facts of that case. The plea of the revision petitioners, therefore, fails.”

4. In view of the above, this revision application is disposed of by directing the Rent Cont