SUKUMARAN Vs. SUSY ISAAC

JUDGEMENT

(1.) THE tenant is the revision petitioner. THE landlord sought eviction of the revision petitioner on the grounds of arrears of rent and bona fide need for own occupation coming under S. 11 (2) (b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act. THE main contention of the tenant was that the applicant is not entitled to receive rent for the building and therefore the petition is not maintainable. Such a contention was raised under the following circumstances: By the judgment in OS. No. 143/71 on the file of the munsiff's Court, Kottayam, two persons who were the original tenants of the landlord were allowed to receive the rent of the petition schedule building. THEre the original tenants had prayed for recovery of possession of the petition schedule building and also the movables from the revision petitioner. In that suit the present respondent who is the landlord was impleaded as additional 2nd defendant. THE revision petitioner herein raised the contention that the plaintiffs therein had no leasehold interest or other right or possession of the building and therefore the plaintiffs therein are not entitled to any relief. However, the Munsiff's Court by Ext. BI judgment decreed the suit and held that the plaintiffs are entitled to recover possession of the plaint schedule building from the defendant with arrears of rent. It was under these circumstances that the revision petitioner contended that the respondent herein is not entitled to file this petition for eviction.

(2.) IN view of Ext. BI judgment the Rent Control Court held that even though the landlord is entitled to evict the revision petitioner under S. 11 (3) of the Act, since the petition is not maintainable the petition was dismissed.

(3.) THE Madras High Court (in Venkateswaralu v. Lingayya: air. 1924 Mad. 689 and Raghava Aiyangar v. Irula THEvan: AIR. 1926 Mad. 974)and Jammu & Kashmir High Court (in J & K Bank v. Lal Mohamed: AIR. 1969 j. & K. 25 F8.) have held that where the point adversely decided against the defendant is correctly and substantially in issue and where in other proceedings the matter would be res judicata, he is not precluded from agitating the matter in appeal merely because the suit was decided in his favour on some other ground. THE Jammu & Kashmir High Court has further held (in the above decision) that an appeal against a finding is maintainable in extreme cases. This Court in Koya Haji v. Satheedevi (1971 KLT. SN. 19) has held that every order passed by the Rent Controller is appealable except interlocutory orders of a procedural nature. In that case it is further held that orders affecting rights or liabilities of the party should be taken up in appeal before the Appellate Authority if the party is serious about it, otherwise the order will stand against him in the further progress of the proceedings.