P M YUSUFF Vs. THAYOOB SAIT

JUDGEMENT

(1.) IN this writ petition the petitioner, who is the tenant, questions the validity of an order passed by the revisional court allowing an application by the landlord for recovery of possession of the building in question. The 1st respondent in this petition filed R. C. O. P. 27 of 1962 on 6 21962 before the Rent Control Court for directing the petitioner to put him in possession of the building. The allegation in that petition was that the 1st respondent has leased the building to the 2nd respondent in this petition, who in turn sub-let the building to the petitioner without the permission of the 1st respondent landlord, and that the arrears of rent have not been paid in spite of demand. The Rent Control Court passed an order holding that the 1st respondent has ceased to be the landlord and therefore he was not entitled to recover possession of the building. An appeal was taken by the 1st respondent before the Subordinate Judge and that authority confirmed the decision of the rent Control Court Thereafter the 1st respondent filed a revision before the district Court and the District Court reversed the decisions of the Rent control Court and the Subordinate Judge on the ground that the 1st respondent has succeeded in establishing, that the petitioner was a tenant of the 1st respondent and that arrears of rent were due from the petitioner.

(2.) PETITIONER's counsel attacks this order on the ground that there is no finding by the revisional court that the relationship of landlord and tenant subsisted between the 1st respondent and the petitioner at the time of filing the Rent Control Petition in spite of the finding of the Rent Control Court and the Subordinate Judge that no such relationship existed, and that therefore the conclusion of the court that the 1st respondent was entitled to be pat in possession of the building was vitiated by an error of law apparent on the face of the record. In order to understand the argument of the petitioner's counsel it is necessary to state a few facts. The building belongs to M/s Mookan Devassy Ouseph and Sons. The 1st respondent's case was that he has taken the building on lease from M/s Mookan devassy Ouseph and Sons, and has let it out to the 2nd respondent in this petition, who in turn sub-let the same to the petitioner. The petitioner's contention is that the lease in favour of the 1st respondent came to an end by surrender by him on 1-7-1961, that thereafter he had attorned to M/s Mookan devassy Ouseph and Sons, and that therefore the 1st respondent had ceased to be the landlord of the building, and so he was not entitled to recover possession of the building. To substantiate the contention that the petitioner, has attorned to M/s Mookan Devassy Ouseph and Sons, and that they accepted rent from him, the petitioner produced Ext. D-3 series before the Rent Control Court . The Rent Control Court, on the strength of the oral and documentary evidence, came to the conclusion that 1st respondent was not the tenant of M/s Mookan Devassy Ouseph and Sons on 181961 and that he ceased to be the landlord of the building, so far as the petitioner was concerned, and therefore he was not entitled to recover the same. It was contended by the 1st respondent before the Rent Control Court that he has obtained a judgment in S, C. 8/1962 (Ext: D-1) for arrears of rent against the petitioner and the 2nd respondent, and that that was resjudicata as regards the relationship between the parties. It was submitted that the suit was for arrears of rent due from 171961 to 3111962 and that the decision in that case rendering the defendants therein liable for the arrears of rent for the period was not only res judicata as regards the subsistence of the relationship of landlord and tenant between the 1st respondent and the petitioner but also of the fact that arrears of rent were due from the petitioner to the 1st respondent. It may be recalled that that judgment was passed on the basis that the 2nd respondent took a lease of the building from the 1st respondent for and on behalf of the petitioner, although the petitioner contended that he was not a tenant of the 1st respondent. The 2nd respondent was the 1st defendant in that suit. It was found in that suit that the 2nd respondent took the lease for and on behalf of the petitioner from the 1st respondent. Ext. D-1 was not relied on by the Rent Control Court or the appellate authority on the ground that Ext. D-1 is a judgment of a Small Cause Court and that the court which passed the judgment was not competent to entertain the subsequent Rent Control proceedings. The Rent Control Court as well as the appellate authority held that that judgment being a judgment passed by a Small Cause Court was not resjudicata as regards the subsistence of the relationship of landlord and tenant between the 1st respondent and the petitioner, and that it cannot furnish evidence as regards the existence of arrears of rent as being due to the 1st respondent. The revisional court on the other hand, came to the conclusion that Ext. D-1 judgment was res judicata as regards the subsistence of the relationship of landlord and tenant between the 1st respondent and the petitioner and also of the fact that arrears of rent were due to the 1st respondent from the petitioner.

(3.) IT was submitted on behalf of the 1st respondent that after the District Court passed the order in revision the petitioner filed an application under S. 11 (4) for vacating that order before the Real Control court by depositing the amount of arrears of rent and got that order vacated. (See Ext. R-2 ). That furnishes an additional reason for not interfering with the order passed in revision by the District Court in this proceeding. If the order impugned in this case has already been vacated by the Rent Control Court under S. 11 (4), there is no reason why this court should set aside that order. I dismiss the petition without any order as to costs. Dismissed.