Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY,THE 22ND DAY OF FEBRUARY 2023/3RD PHALGUNA, 1944 OP (RC) NO.54 OF 2023 AGAINST THE ORDER/JUDGMENT IN RCP 3/2018 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA PETITIONER/REVISION PETITIONER: JOSE AGED 57 YEARS S/O AMBOOKKEN JOHNY, KUZHIKKATTUSSERRY DESOM, VADAMA VILLAGE, CHALAKUDY TALUK. BY ADV SMT.SUMAN CHAKRAVARTHY RESPONDENTS/RESPONDENTS:
1 FRANK S/O THOMAS ADDIYATTIPRAMBIL HOUSE, PORATHISSERRY VILLAGE , MOORKANAD DESOM, MUKUNDAPURAM, THRISSUR, PIN - 680711. REPRESENTED BY POWER OF ATTORNEY HOLDER THOMAS MASTER, RESIDING AT ABOVE ADDRESS. 2 JOSE AGED 54 YEARS S/O DEVASSY, CHACKACHANPARAMBIL HOUSE, PULLUR VILLAGE, PULLOOR P.O, MUKUNDAPURAM, THRISSUR DISTRICT, PIN - 680683 BY ADVS. SMT.DHANYA P.ASHOKAN SRI.M.R.VENUGOPAL(K/000472/1994) SRI.S. MUHAMMAD ALIKHAN(K/000644/2020)
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(RC) No.54 of 2023 2 P.B SURESHKUMAR &
SOPHY THOMAS, JJ.
------------------------------------------- OP (RC) No.54 of 2023 ------------------------------------------- Dated this the 22nd day of February, 2023
JUDGMENT
Sophy Thomas, J.
The petitioner herein is the claim petitioner in EA No.370 of 2019 in EP No.3110 of 2018 in RCP No.3 of 2018 on the file of Principal Munsiff Court, Irinjalakuda. The 1st respondent is the landlord and 2nd respondent is the tenant. The claim petitioner (hereinafter referred to as 'the petitioner') is challenging Ext.P5 order of the Rent Control Appellate Authority in I.A No.3 of 2022 in RCRP No.1 of 2022.
2. The landlord filed RCP No.3 of 2018 against the
tenant under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’), and it was allowed in his favour. He filed execution petition as EP No.3110 of 2018 and delivery proceedings were initiated. The petitioner filed application under Order 21 Rule 97 and 101 r/w Sections 47 and 151 of CPC, to declare his OP(RC) No.54 of 2023 3 tenancy right over the petition schedule rooms. According to him, the petition schedule rooms were handed over to his possession jointly by the landlord, as well as the original tenant, who is the 2nd respondent herein. According to him, he was regularly paying rent to the landlord @ Rs.1,000/- per day. The execution court dismissed his application as per Ext.P1 order dated 16.12.2021. Challenging the dismissal
order in EA No.370 of 2019, the petitioner preferred Rent
Control Revision before the Rent Control Appellate Authority as RCRP No.1 of 2022 in which I.A No.3 of 2022 was filed to stay the proceedings in the execution petition. As per Ext.P5 order, the Rent Control Appellate Authority dismissed the stay petition against which the petitioner is before us, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
3. Heard learned counsel Smt.Suman Chakravarthy, appearing for the petitioner and learned counsel Smt.Dhanya P Ashokan, appearing for the respondents.
4. According to the petitioner, he is in possession of the
petition schedule rooms as a tenant. But, he has not specified who leased out that building to him. If he was a sub tenant OP(RC) No.54 of 2023 4 under the original tenant, he cannot claim any right more than that of the original tenant. As per order in RCP No.3 of 2018, the Rent Control Court directed the tenant to vacate the premises under Section 11(2)(b) of the Act. So, the petitioner also is bound by that decision even if he is a sub-tenant under the original tenant. The 2nd respondent/tenant has no case that the petitioner was a sub-tenant under him.
5. Now the next question is whether, the petitioner was
a tenant under the landlord. No evidence is forthcoming to substantiate his case. Though he produced two documents before the execution court, to prove the tenancy, he could not prove its contents, and the original lease deed also was not produced by him. There was nothing to show that he was paying rent to the landlord. The Commissioner also found that there was no business in the petition schedule rooms in the name and style “Jose Ambooken Traders”, as claimed by the petitioner.
6. After adverting to the rival claims, the execution court
as well as the appellate court found that, the petitioner could not substantiate his claim of tenancy or even possession in the petition schedule rooms. Since there was nothing to show that OP(RC) No.54 of 2023 5 the petitioner was a tenant in the petition schedule rooms either under the landlord or under the tenant, he could not prove any legal right over the scheduled building. So, the execution court cannot be found fault with for rejecting his claim petition. The appellate authority also finding no merits in the claim of the petitioner and also realising the long pendency of the execution petition since 2018, rightly rejected the stay petition. We find no illegality, irregularity or impropriety in Ext.P5 order, warranting interference by this Court. Hence the Original Petition stands dismissed. Sd/- P.B SURESH KUMAR JUDGE Sd/- SOPHY THOMAS JUDGE smp OP(RC) No.54 of 2023 6 APPENDIX OF OP (RC) 54/2023 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE ORDER DATED 16-12-
2021 IN E.A.NO. 370/2019 IN E.P NO.3110 OF 2018 IN R.C.P NO.3/2018 IN THE FILE OF PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA
Exhibit-P2 TRUE COPY OF THE SAID RENT CONTROL REVISION PETITION NO. 1/2022 DATED CONTROL APPELLATE AUTHORITY, THRISSUR Exhibit-P3 TRUE COPY OF I.A.NO.3 OF 2022 IN RCRP NO.1/2022 DATED 16/11/2022 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, THRISSUR Exhibit-P4 TRUE COPY OF THE JUDGMENT DATED 09-12- 2022 IN OP(RC) NO.237 /2022 Exhibit-P5 TRUE COPY OF THE ORDER DATED 28-01- 2023 IN I.A.NO.3 OF 2022 IN RCRP NO.1 OF 2022 OF THE RENT CONTROL APPELLATE AUTHORITY, THRISSUR RESPONDENT'S EXHIBITS: NIL. True Copy P.S to Judge smp