MARIYAM Vs. A. VIJAYARAJAN

JUDGEMENT

(1.) Heard the learned senior counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlord. This revision under S. 20 of Act 2 of 1965 is against concurrent findings holding that the landlord bona fide needs the building for personal use to commence an activity in soda manufacturing. The tenant is not entitled to raise any plea under the second proviso to S. 11(3), since it is, primarily, a residential building and the tenant has no case that she was conducting any business there. The fundamental plea of the tenant before the courts below was built on what was projected as bona fide denial of the title of the landlord. That stands concurrently found against the tenant.

(2.) The learned senior counsel for the revision petitioner argued, inter alia, that Ext. A1, which is relied on by the landlord as the tide deed, is a sham one and it was never intended to take effect though it was executed by the person now arrayed as the tenant. It is further pointed out that the execution of Ext. A11 (rent deed) nearly two days after Ext. A1 is also shrouded in suspicion. He, therefore, argued that Exts. A1 and A11 can be impeached in collateral proceedings and thereby a challenge can be validly raised to the title held out by the landlord. It is thus argued that there is a bona fide denial of title and in that event, the parties should have been relegated to the civil court and the Rent Control Court does not have jurisdiction to decide on the issue of title.

(3.) Per contra, the learned counsel appearing for the landlord argued that the courts below have concurrently found that there is no bona fides in the so-called denial of tide, and mere is really no denial of tide inasmuch as existence of Ext. A1 is not disputed, and there cannot be any plea in variance of the contents of that document, the execution of which is admitted. He also argued that there is no ground to hold that the transaction was not acted upon. It is, pointedly, argued that Ext. A12 (Ext. A8)judgment and decree have been, rightly, found by the courts below to operate as estoppel by judgment on the plea of the tenant. That decree is in a suit instituted by the tenant against eviction pleading that Ext. A1 sale deed has not been taken effect and it is not a sale deed at all. That suit was ultimately dismissed as "not pressed". That suit was one for cancellation of Ext. A1. That being so, in law, the tenant had obtained a judgment against her on merits on that issue. That is the effect of "not pressing" that suit. When a suit is dismissed as "not pressed", the inevitable inference is that the plaintiff offers that the issues arising in the suit as raised may be decided against that party and in favour of the opponent. See for support Muhammed Master v. Abu Haji,1981 KerLT 578).