A.Z.A Diagnostic Firm & Ors. v. Vayalil Parambath Saheer & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943 O.P.(RC) NO. 1 OF 2022** **AGAINST THE ORDER DATED 04.12.2021 IN I.A.NO.2 OF 2021 IN RCRP NO.2 OF 2021 OF ADDITIONAL RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), KOZHIKODE** ## **PETITIONERS:** **1 A.Z.A DIAGNOSTIC FIRM, BEING RUN IN ROOM NO 17/666 D1, VAZHAVALATHUPARAMBU, KASABA AMSOM, KARYAKUNNU DESOM, P.O PUTHIYARA, KOZHIKODE, REPRESENTED BY ITS PARTNER K.PARIYARI @ PAREETH, AGED 57, S/O. AHAMED HAJI, RESIDING IN THE ADDRESS KANNANKANDI HOUSE, NETUNGOTTUR DESOM, CIVIL STATION P.O, KOZHIKODE DISTRICT - 673 020.** **2 KANNANKANDI PARIYARI @ PAREETH AGED 57 YEARS, S/O. AHAMMED HAJI, RESIDING IN THE ADDRESS KANNANKANDI HOUSE, NETUNGOTTUR DESOM, CIVIL STATION P.O, KOZHIKODE DISTRICT - 673 020.** - **3 KUNNOTH MAJEED** **AGED 58 YEARS, S/O. NELLIKA UMMAR HAJI, RESIDING IN THE ADDRESS MALABAR HOUSE, RAJEEV NAGAR, KALATHILKUNNU VILLAGE, KOZHIKODE P.O, KOZHIKODE DISTRICT - 673 032.** **BY ADV G.SREEKUMAR (CHELUR)** 2 O.P.(RC) No.1 of 2022 ## **RESPONDENTS:** - **1 VAYALIL PARAMBATH SAHEER** **AGED 49 YEARS, S/O. MUHAMMED, RESIDING IN THE ADDRESS 7/105, FASMAS, ARINDOSH ROAD, NAGARAM AMSOM DESOM, NAGARAM P.O, KOZHIKODE DISTRICT - 673 001.** **2 AYISHA SABEENA, AGED 44 YEARS, W/O. V P SAHEER, RESIDING IN THE ADDRESS 7/105, FASMAS, ARVINDOSH ROAD, NAGARAM AMSOM DESOM, NAGARAM P.O, KOZHIKODE DISTRICT - 673 001.** **3 V P SAHAL MUHAMMED AGED 44 YEARS, S/O. V P SAHEER, RESIDING IN THE ADDRESS 7/105, FASMA, ARVINDOSH ROAD, NAGARAM AMSOM DESOM, NAGARAM P.O, KOZHIKODE DISTRICT - 673 001.** **RESPONDENTS 1 TO 3 REPRESENTED BY V.P.MUHAMMED, S/O. MOIDU HAJI, RESIDING IN THE ADDRESS 7/105, FASMAS, ARAVINDGOSH ROAD, NAGARAM AMSOM DESOM, NAGARAM P.O, KOZHIKODE DISTRICT - 673 001.** **BY ADVS.** **T.H.ABDUL AZEEZ K.P.MAJEED MOHAMMED SADIQUE.T.A SHANKAR V.** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 12.01.2022, THE COURT ON 31.01.2022 DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.1 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The respondents-tenant in R.C.P.No.79 of 2020 on the file of the Rent Control Court (Principal Munsiff-II), Kozhikode are the petitioners herein. That rent control petition was filed by the respondents-landlords seeking eviction of the tenants under Section 11(2)(b) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition was allowed as per Ext.P1 in terms of the compromise entered into between the parties. In the execution petition, the execution court as per Ext.P4 order dated 22.10.2021 directed delivery. Challenging that order, the petitioner filed RCRP No.2 of 2021 under Section 14 of the Act. The Rent Control Revisional Authority (District Judge-II), Kozhikode in I.A.No.2 of 2021 in in RCRP No.2 of 2021, as per Ext.P7 order dated 04.12.2021 ordered stay of delivery on a condition of depositing Rs.36 lakhs within one month and making payment of the rent for the ensuing months. Legality of the said condition is in challenge in this Original Petition filed under 4 O.P.(RC) No.1 of 2022 Article 227 of the Constitution of India. 2. When this matter came up for admission on 05.01.2022, notice was ordered through special messenger. The respondents entered appearance on receipt of notice. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 4. Brief facts required for deciding this original petition is the following: The petitioners are the tenants. They availed on rent room Nos.C4, C5, C6 and C7 in the ground floor and room Nos.D1 and D2 in the first floor of the building (with a common door number 17/666 of Kozhikode Corporation) belonging to the respondents-landlord. The respondents filed R.C.P.No.79 of 2020 seeking eviction of the petitioners from the petition schedule rooms under Sections 11(2)(b) and 11(4)(ii) of the Act. The matter was settled between the parties. Ext.P1 is the compromise entered into between the parties and the order of the Rent Control Court in terms of the compromise. One of 5 O.P.(RC) No.1 of 2022 the conditions in the compromise is that the monthly rent would be Rs.3 lakhs and room Nos.C4, 5, 6 and 7 in the ground floor would be surrendered to the respondentslandlord in January 2021. The subsequent condition is that the petitioners would be permitted to hold rooms having door Nos.D1 and D2 in the first floor as tenants, if they wanted to hold over the same on lease. It was stipulated that a new agreement with respect to the said two rooms would have to be executed and Rs.10 lakhs already with the respondents would be retained as advance in relation to the tenancy arrangement with respect to the said rooms. 5. Alleging that the petitioners did not surrender vacant possession of room Nos.C4, 5, 6 and 7, the respondents filed E.P.No.37 of 2021 for delivery of the said rooms. The petitioners filed a counter statement, copy of which is Ext.P3. The execution court after hearing both sides as per Ext.P4 order dated 22.10.2021 ordered delivery and deputed an Amin to effect delivery on 26.11.2021. The petitioners carried the matter on revision to the Revisional 6 O.P.(RC) No.1 of 2022 Authority by filing RCRP.No.2 of 2021. The petitioners sought stay of order of delivery by filing I.A.No.2 of 2021. The Revisional Authority after hearing both sides passed Ext.P7 order granting stay of further proceedings in E.P.No.37 of 2021 in R.C.P.No.79 of 2020, on the condition that the petitioners should deposit an amount of Rs.36 lakhs before the execution court within a period of one month from the date of that order and to continue to deposit an amount of Rs.3 lakhs, every month thereafter before the execution court. 6. The learned counsel for the petitioners would contend that going by the principles laid down by the Apex Court in Ext.P6 decision, **Jai Narain Ram Lundia v. Kedar Nath Khetan and others [AIR 1956 SC 359]** , which was placed before the Revisional Authority, an absolute stay should have been granted for, the order of delivery was illegal. In the said case, the question was whether the compromise decree directing specific performance of a contract to sell certain shares in a private limited company together with a 7 O.P.(RC) No.1 of 2022 share in a partnership firm, on payment of a certain amount, could be severed into two parts and executed independently. The resistance to execution of the said decree was that the partnership firm was dissolved in the meantime making execution of the decree with respect to the share in the partnership firm impossible. The Apex Court held, '19. xx xx When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannot do. There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an executing Court cannot do. The only question therefore is whether the decree in the present case is of this nature. We are clear that it is.' 8 O.P.(RC) No.1 of 2022 7. The learned counsel for the petitioners would contend that the terms agreed to between the parties with respect to the rooms in the ground floor and also the rooms in the first floor are reciprocal obligations and as long as the respondents-landlord hands over possession of the rooms in the first floor to the petitioners and executes a lease agreement with respect to the said rooms, the petitioners would not be bound to surrender vacant possession of the four rooms in their possession in the ground floor. The learned counsel thereby submits that both those conditions are mutually complementary and the performance of the obligations of the landlord with respect to the rooms in the first floor is a condition precedent for surrendering of vacant possession of the four rooms in the ground floor by the petitioners. The tenor of the contention of the petitioners is that they are in possession of the four rooms in the ground floor only and two rooms in the first floor have to be given possession to them anew in terms of Ext.P1 order. 8. The learned counsel appearing for the respondents, 9 ## O.P.(RC) No.1 of 2022 on the other hand, would contend that all the six rooms are already in the possession of the petitioners and, therefore, there is no need of handing over possession of the two rooms in the first floor to the petitioners as they claimed. What is required as per the terms of Ext.P1 compromise order is execution of a new lease agreement with respect to the said two rooms. The learned counsel further would contend that it is for the petitioners to intimate their intention to continue and request for execution of new lease agreement, which they have not yet done and therefore, in every respect, they are at fault. 9. On a plain reading of Ext.P1 compromise, it is clear that the terms agreed to between the parties with respect to two sets of rooms are totally independent. As regards the four rooms in the ground floor, the petitioners unequivocally agreed to pay rent and hand over the possession to the respondents in January 2021. There are no dependent conditions to it. The second term in the compromise is that the petitioners can continue, if they so require, as tenants, in 10 ## O.P.(RC) No.1 of 2022 the two rooms in the first floor, for which a new lease agreement has to be executed between the parties. In the nature of the said terms in the compromise, contention of the petitioners is absolutely untenable. 10. The three principles laid down by the Apex Court ## in **Jai Narain Ram Lundia** (supra) are: - (i) When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but also, when objection is raised, satisfies the executing Court that he is in a position to do so. - (ii) Where the obligations imposed on each side are distinct and severable, each party might well be left to its own execution. - (iii) When the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt by one party to enforce performance unilaterally which would defeat the directions in the decree cannot be acceded to by the executing Court. 11. This is a case where obligations imposed on each of 11 ## O.P.(RC) No.1 of 2022 the parties by condition Nos.(i) and (ii) in Ext.P1 compromise are distinct and several. Therefore, there is no reason not to execute the first condition that the petitioners would surrender vacant possession of the four rooms in the ground floor to the respondents-landlord. Ext.P2 is a copy of the execution petition. The prayer in Ext.P2 is to effect delivery of room Nos.C4, 5, 6 and 7. No relief with respect to the rooms in the first floor is sought in the execution petition. Ext.P1 compromise order further obligated the petitioners to pay rent at the rate of Rs.3 lakhs per month from July 2020. The petitioners does not claim that they have paid the rent since July 2020. It was in the said circumstances, the execution court as per Ext.P4 ordered delivery. 12. It was after considering the said aspects the Revisional Authority passed Ext.P7 order imposing a condition of deposit of Rs.36 lakhs, which has been due towards arrears of rent from the petitioners. When order of delivery as per Ext.P4 was sought to be stayed, it is certainly the obligation of the petitioners-tenant to make payment of the rent in arrears till that date. 12 ## O.P.(RC) No.1 of 2022 13. As regards the rate of rent and the amount in arrears, there is no dispute. It cannot therefore be said that there is any patent illegality or perversity in passing Ext.P7 order by the Revisional Authority. Taking into account all such aspects, we are of the view that there is no reason to interfere with Ext.P7 order in exercise of the powers of this Court under Article 227 of the Constitution of India. We therefore dismiss this original petition. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 13 O.P.(RC) No.1 of 2022 ## **APPENDIX OF OP (RC) 1/2022** **PETITIONER EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE ORDER IN RCP 79/2020 PASSED BY THE RENT CONTROL COURT ADDITIONAL MUNSIFF COURT 2, KOZHIKODE DATED 8-12-2020 AND THE JOINT STATEMENT FILED IN THE SAID CASE.** - **Exhibit P2 A TRUE COPY OF THE EP NO 37 OF 2021 FILED IN RCP NO. 79 OF 20 DATED 19-2-2021 ON THE FILE OF THE RENT CONTROL COURT, KOZHIKODE** - **Exhibit P3 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS HEREIN FILED TO EXT P2 DATED 1-6-2021** - **Exhibit P4 A TRUE COPY OF THE ORDER PASSED IN EP NO. 37 OF 21 IN RCP NO. 79 OF 2020 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, KOZHIKODE-2 DATED 22-10-2021** - **Exhibit P5 A TRUE COPY OF THE RENT CONTROL REVISION PETITION BEARING NO. 2 OF 21 FILED BEFORE THE RENT CONTROL APPELLATE AUTHORITY, DISTRICT COURT, KOZHIKODE DATED 3-11-2021** - **Exhibit P6** - **A TRUE COPY OF THE REPORT JUDGMENT IN CIVIL APPEAL NO. 206 OF 1955 DECIDED ON 31-1-1956 BY THE HON'BLE SUPREME COURT OF INDIA** - **Exhibit P7 A TRUE COPY OF THE ORDER PASSED IN IA NO. 2 OF 21 IN RCRP NO. 2 OF 21 DATED 4-122021 ON THE FILE OF THE SECOND ADDITIONAL APPELLATE AUTHORITY, KOZHIKODE/2ND ADDITIONAL DISTRICT COURT, KOZHIKODE.**