Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, OP (RC) NO. 207 OF 2023 AGAINST THE ORDER IN RCP 20/2016 OF MUNSIFF MAGISTRATE COURT, PATTAMBI EP 97/2018 OF MUNSIFF MAGISTRATE COURT, PATTAMBI PETITIONER/PETITIONER IN EA/JD/TENANT: ABOOBACKER, AGED 66 YEARS S/O MANALATH ABDU, PADINJARE MURI, KADAVALLUR VILLAGE, CHALISSERY AMSOM, THALAPPILLI TALUK, PALAKKAD., PIN - 679536 BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) PRAJIT RATNAKARAN C.H.ABDUL RASAC E.MOHAMMED SHAFI KRISHNAPRIYA R.
RESPONDENT/RESPONDENT IN EA/DH/LANDLORD: VARGHEESE S/O KOLADI MATHAYIKUTTY, RESIDING AT KOLADI HOUSE, MARUTHAMKODE.P.O, THALAPPILLI TALUK, PALAKKAD, PIN - 679536 THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -: 2 :- P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- ----------------------------------------------- Dated this the 1st day of December, 2023
JUDGMENT
P.B.Suresh Kumar, J.
The petitioner in this original petition (rent control)
is the tenant in a proceedings for eviction under the Kerala Buildings (Lease and Rent Control) Act (the Act) and the respondent is the landlord. The Rent Control Court ordered eviction under Sections 11(2)(b) and 11(3) of the Act. However, in the appeal preferred by the petitioner, the Appellate Authority vacated the order under Section 11(2)(b) and
confirmed the order under Section 11(3). Even though the petitioner challenged the decision of the Appellate Authority in revision before this Court under Section 20 of the Act, the challenge was repelled by this Court.
2. It is seen that the argument advanced by the petitioner to impugn the order of eviction under Section 11(2)
(b) in the appeal preferred by him against the order of eviction was that the landlord has agreed to adjust the advance paid by -: 3 :- the petitioner towards the monthly rent due, and it is accepting the said argument that the Appellate Authority vacated the
order of eviction under Section 11(2)(b). Paragraph 24 of the
judgment in the appeal reads thus:
“24. Point No.3: - Ext. A1 lease deed will prove that the monthly rent to be paid by the respondent to the petitioner is Rs.7,000/- per month. Petitioner would say that the respondent paid rent only upto February 2014 and the rent is in arrears from March 2014. Demanding the arrears of rent petitioner sent notice only on 19.09.2016 ie., almost after 2 years that too after the filing of O.S. 225/2016 by the
respondent against forcible eviction. Ext. A8 is the order
passed by the civil court in the temporary injunction application filed O.S. 225/2016. It will reveal that, in that proceedings, the landlord put up a contention that the respondent herein had agreed to vacate the petition schedule house and asked the landlord to adjust the rent amount to the advance amount already paid and to return the balance amount. If that be so, the landlord cannot now come and say that the tenant had defaulted the payment of rent. It is to be taken note that the advance amount of Rs.7,00,000/- paid by the respondent is still with the petitioner. He can adjust the rent towards that amount in his hands. He can continue to adjust the rent towards the advance amount, until and unless any competent court directs otherwise. Only in such an eventuality, he can demand rent arrears, and in default, proceed to get an order of eviction under 11(2)(b) of the Act. If we strictly go by the relief granted, the Rent Controller had not passed an order of eviction u/s 11(2)(b) of the Act. The direction given was only to pay rent arrears for the default period within two months of the date of order. Any way, for the reasons stated above, I find that petitioner is not entitled -: 4 :-
to get an order of eviction on the ground of rent arrears. The above point is answered accordingly.”
When the respondent filed a petition to execute the order of eviction under Section 11(3) which has become final, the petitioner preferred E.A.No.207 of 2022 invoking Section 47 of the Code of Civil Procedure (the Code) seeking directions to the respondent to file a statement indicating the balance security deposit available with him and directing him to pay the same to the petitioner with interest. Ext.P1 is the said application. Ext.P1 application was dismissed by the Execution Court on 23.05.2023. The said order was challenged by the petitioner before this Court in O.P.(RC) No.131 of 2023. It is seen that this
Court set aside the order dated 23.05.2023 in Ext.P1 application and directed the Execution Court to consider the application afresh on the ground that the impugned order was issued without adverting to the findings rendered by the Appellate Authority in paragraph 24 of its judgment. Ext.P3 is the judgment in O.P.(RC) No.131 of 2023. Pursuant to Ext.P3 judgment, Ext.P1 application was considered afresh and Ext.P4
order was passed by the Execution Court allowing the
application in part, holding that the advance amount of Rs.7 lakhs paid by the petitioner to the respondent will be adjusted -: 5 :- against the rent arrears of Rs.7,91,000/- payable by the petitioner and that the respondent would be entitled to realise the remaining amount with further arrears of rent, if any, from the petitioner. The above original petition is instituted challenging Ext.P4 order passed by the Execution Court.
3. Heard the learned counsel for the petitioner.
4. As we entertained a doubt as to the
maintainability of Ext.P1 application, the learned counsel for the petitioner was required to address arguments on the the same. The only submission made by the learned counsel for the petitioner in this regard is that in the light of Ext.P3
judgment passed by this Court in O.P.(RC) No.131 of 2023, in
terms of which Ext.P1 application was directed to be considered afresh, Ext.P1 application cannot now be dismissed as not maintainable.
5. This Court is certainly entitled to know while
considering an original petition instituted under Article 227 of the Constitution of India challenging an order passed in an interlocutory application preferred by the judgment debtor in an execution proceedings as to whether the very application on which the order impugned is passed, is maintainable and it -: 6 :-
is in the said circumstances that we have called upon the learned counsel for the petitioner to address arguments as to the maintainability of the same. We are unable to accept the argument advanced by the learned counsel for the petitioner as to the maintainability of Ext.P1 application. Paragraph 4 of the judgment of this Court in O.P.(RC) No.131 of 2023 reads thus:
“We straight away notice that the said finding in the order is clearly without adverting to the finding in RCR No.2/2017, which is extracted above. Since the order is passed on a factually erroneous premise, we have no option but to set aside the impugned order and direct the Munsiff/Magistrate, Pattambi, to re-hear EA No.207/2022 and pass orders in accordance with law within an outer period of two months from the date of receipt of a copy of this judgment. Needless to say that all further proceedings in execution will be taken only after passing an order as directed above.”
It is evident from the extracted portion of the judgment that this Court did not consider the maintainability of Ext.P1 application at all. Instead, the order dated 23.05.2023 in Ext.P1 application was set aside by this Court, and the application was directed to be considered afresh, as it was found that the factual premises on which the order was passed, is incorrect. Inasmuch as this Court did not consider the maintainability of
-: 7 :- Ext.P1 application in O.P.(RC) No.131 of 2023, we are of the view that there is no impediment in law for this Court in considering the maintainability of Ext.P1 application in the present original petition, especially since it is a constitutional remedy.
6. Having said so, let us now consider whether Ext.P1 application is maintainable. As noted, though the Rent Control Court passed an order of eviction both under Sections
11(2)(b) and 11(3), the Appellate Authority vacated the order
of eviction under Section 11(2)(b). In other words, the order of eviction which has become final is the order of eviction passed under Section 11(3). As noted, Ext.P1 application is one preferred invoking Section 47 of the Civil Procedure Code.
Section 47 of the Civil Procedure Code enables the court executing a decree to decide all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree. Needless to say, in the context of the present proceedings, the scope of the jurisdiction of the court under Section 47 is confined to questions arising between the parties to the proceedings relating to the
-: 8 :-
execution, discharge or satisfaction of the order sought to be enforced. The order sought to be enforced is an order of eviction under Section 11(3). The petitioner has not raised any dispute in Ext.P1 application in relation to the order sought to be enforced. Instead, the dispute raised by the petitioner therein is in respect of a matter which has nothing to do with the order sought to be enforced. Such disputes, according to us, cannot be taken up by invoking Section 47 of the Civil Procedure Code in a proceedings instituted for execution of an
order of eviction passed under Section 11(3) of the Act.
Needless to say, Ext.P1 application is not maintainable. If Ext.P1 application is not maintainable, the question of examining the correctness of the order passed on such application on the premise that it is maintainable, does not arise.
The original petition (rent control) is, therefore, dismissed. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- JOHNSON JOHN, JUDGE. ds 03.12.2023 -: 9 :- APPENDIX OF OP (RC) 207/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF AFFIDAVIT AND PETITION IN EA 207/2022 OF MUNSIFF COURT (RENT CONTROL), PATTAMBI. Exhibit P2 A TRUE COPY OF THE OBJECTION/COUNTER
FILED BY THE RESPONDENT IN EA 207/2022 IN EP 97/2018 IN RCP 20/2016 BEFORE THE MUNSIFF-MAGISTRATE, PATTAMBI Exhibit P3 A TRUE COPY OF JUDGMENT IN OP(RC) Exhibit P4 A TRUE COPY OF ORDER DATED 07.11.2023 IN EA 207/2022 IN EP 97/2018 IN RCP