Dr. James E.V. and Dr. Reetha James v. Grace Thomas and Dr. Anil Mathew Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 25559 of 2010(T) -------------------------(E.P.202/09 IN RCOP 10/07 MUNSIFF COURT, KOTTAYAM) PETITIONER(S): REVISION PETITIONER/JUDGMENT DEBTOR ------------------------------------------------- 1. DR.JAMES.E.V., SUKHODAYA AYURVEDIC HOSPITAL, KANJIKUZHY, KOTTAYAM. 2. DR.REETHA JAMES, W/O.DR.JAMES E.V., SUKHODAYA AYURVEDIC HOSPITAL, KANJIKUZHY, KOTTAYAM. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT(S): COUNTER PETITIONER/DECREE HOLDER --------------------------------------- 1. MRS.GRACE THOMAS, W/O.LATE DR.THOMAS MATHEW, KOCHUPURACKAL HOUSE, KANJIKUZHY, KOTTAYAM.686141 2. DR.ANIL MATHEW THOMAS, S/O.LATE DR.THOMAS MATHEW, KOCHUPURACKAL HOUSE, KANJIKUZHY, KOTTAYAM.686141 BY ADV.BECHU KUNRIAN THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------W.P.(C).No. 25559 OF 2010 ------------------------** Dated this the 13[th] day of August, 2010 ## **JUDGMENT** Pius C.Kuriakose, J. Under challenge in this writ petition filed under Article 227 is Ext.P7 judgment of the District Judge, Kottayam dismissing RCRP No.1/2010 filed by the writ petitioners, who are conducting an Ayurvedic Hospital in the building in question, a substantial building situated in a very important locality of Kottayam Municipal town. RCRP No.1/2010 was a revision filed under Section 14 of Act 2 of of 1965 against an order of delivery passed by the Principal Munsiff, Kottayam in execution of eviction order passed against the revision petitioners in RC(O.P) No.10/2007. The ground prominently raised by the writ petitioners before the Munsiff Court was that the order of eviction passed in R.C(O.P) 10/2007 was a nullity and hence not executable. The above contention was repelled by the learned Munsiff and under the impugned order the same is confirmed by the learned District WPC.No.25559/2010 2 Judge. 2. Mr.Liji.J.Vadakkedom, learned counsel for the petitioners addressed strenuous arguments on the basis of the grounds raised in the writ petition assailing the order of the District Judge. The learned counsel submitted that the order of eviction under Section 11(3), which was passed by the Rent Control Court, was void. According to him, though the order contains a finding that the need projected by the landlady is bona fide, the order is silent as regards the operation of the first and second provisos of sub section (3) of Section 11. According to the learned counsel, it is obligatory on the part of the Rent Control Court to consider the operation of the two provisos which are integral parts of sub section(3) of Section 11. As the operation of the two provisos was not considered by the Rent Control Court, the eviction order passed by that Court was bad and unexecutable. Strong reliance was placed by Mr.Liji J.Vadakkedom on the judgment of this Court in Thomas v. Easo (1999(1) KLT 138). The learned counsel submitted that it is clearly held therein that any order of eviction passed under Section 11(3) on the basis of a compromise without referring to WPC.No.25559/2010 3 the second proviso to sub section (3) of Section 11 is contrary to the provisions of the Act and hence not executable. As a last plea, Mr.Liji requested that the writ petitioners be granted at least six months time from today for surrendering the premises as it will be very difficult for them to locate alternate premises for shifting their Ayurvedic Hospital. 3. All the submissions of the learned counsel for the revision petitioners were forcefully resisted by Sri.Bechu Kurian Thomas learned counsel for the respondents. He pointed out that the eviction order was passed on the basis of a compromise. The learned counsel submitted that though the writ petitioners did not honour their commitments under the compromise order, they have actually enjoyed the benefit of the long duration of two and half years time which was granted to them under the compromise. The building was to have been surrendered on 18/6/2010 on the terms of the compromise on condition that the arrears of rent which falls due during the continuance of possession is promptly paid. The petitioners defaulted payment of rent and it was only recently that the rent in arrears was discharged. The petitioners, who did not honour the WPC.No.25559/2010 4 compromise entered into by them, may not be given any indulgence. The learned counsel also submitted that having regard to the locational importance and advantages of the building, if the building is let out today, it will fetch a monthly rent of Rs.two Lakhs. What the revision petitioners have been paying is a paltry sum of Rs.25,000/- per month, submitted counsel. 4. We have anxiously considered the submissions addressed at the Bar. Ext.P3 is the order of eviction passed on the basis of the compromise petition filed by the parties. What the learned Rent Control Court did, on noticing Ext.P3, was to examine the legality of the compromise. On being convinced that the terms were lawful, the compromise was recorded and eviction order incorporating the terms of the compromise was passed. We find from Ext.P3 that the petitioners, who are tenants, unconditionally admitted and accepted that the need put forth by the landlord under sub section (3) of Section 11 is a bona fide and genuine one. We also find that they have also unconditionally admitted that the landlord is entitled for an order of eviction under sub section (3) of Section 11, thereby admitting WPC.No.25559/2010 5 that the claim of the landlord under sub section (3) of Section 11 deserves to be upheld. It is true that Ext.P3 does not specifically refer to the operation of the first and second provisos of sub section (3) of Section 11. But, According to us, as the petitioners have in unqualified language, admitted that the need is bona fide and that the landlord is entitled for an order of eviction under sub section (3) of Section 11, it has to be taken that they have conceded that the statutory interdict under the first proviso to sub section (3) of Section 11 will not operate against the landlord and also that they are not entitled for the protection of the second proviso to sub section (3) of Section 11. 5. Thomas v.Easo(cited supra) was a case where the parties filed a compromise and requested that an order of eviction under sub section (3) of Section 11 be passed. In the compromise petition, it was surprisingly conceded that other suitable buildings are not available in the locality for the tenant to shift from the building. It was also indicated that the business carried on in the building accounts for the tenants' only source of livelihood. What the learned Rent Control Court did in that case was to mechanically incorporate the terms of the WPC.No.25559/2010 6 compromise and pass an order of eviction under sub section (3) of Section 11. The dictum laid down in Thomas v. Easo can apply only in fact situations available in that case where it was the common case of the parties that other suitable buildings are not available in the locality and that the business, which was being carried on by the tenants, accounted for their main means of livelihood. But, that is not the case here. Here, though specific reference is not made to the provisos, it is conceded by clear implications, as already stated, that the landlord is entitled for an order of eviction under sub section (3) of Section 11. The question is whether implied concession as in the present case is sufficient. According to us, the same will be sufficient. We are fortified in our view by the judgment of the Supreme Court in Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas (DEAD) By LRs.(1993 (Supreme Court Cases 458). 6. The case decided by the Supreme Court in Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas(DEAD) By LRs (cited supra) was one where the eviction order was passed under Section 13(1(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which is comparable to sub section (3) WPC.No.25559/2010 7 of Section 11 of our statute. Section 13 (1)(g) is qualified by Section 13(2) which is comparable to the proviso to our Section 11(10) that qualifies Section 11(8). Section 13(2) is extracted by the Supreme Court in its judgment and we are reextracting the same as follows; “13(2). No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only”. In that case, a compromise petition was filed under Order 23 Rule 3 of CPC, which was recorded by the Rent Control Court concerned which passed an order of eviction on the terms of the compromise. It was urged before the Supreme Court that as the WPC.No.25559/2010 8 question of comparative hardship was not referred to in the compromise petition and the Court did not consider such question, the order of eviction that passed under section 13(1)(g) is a nullity. The Supreme Court repelled the contention taking the view that by the joint compromise petition under which the tenant agreed to suffer an order of eviction under Section 13(1) (g), tenant impliedly conceded that there was no statutory bar for declining order of eviction by virtue of Section 13(2). The principles down by the Supreme Court are, in our view, squarely applicable in the present case. 7. The Supreme Court by the same judgment repelled the argument that the decree is a nullity. As held by the Supreme Court, just because decree or order is passed erroneously, the decree or order does not become nullity. To be called a nullity the Court which passed the same should be lacking inherent jurisdiction or the decree or order should be ultra vires the powers of the Court or should have been obtained by fraud or collusion. We are, therefore, of the view that there is no warrant at all for invocation of the supervisory jurisdiction of this court under Article 227 for interfering with Ext.P7 order of the District WPC.No.25559/2010 9 Judge. The supervisory jurisdiction is a visitorial jurisdiction which is invoked very sparingly. Gauging Ext.P7 by the yardsticks, which are applicable for invocation of the above jurisdiction, it is very clear to our mind that there is no warrant at all for interfering with Ext.P7. 8. Ordinarily, we would not have been inclined to show any indulgence to a tenant, who has gone back on his commitments under a compromise. As rightly argued by Sri.Bechu Kurian Thomas, the petitioners are estopped from raising the contention presently raised on principles of estoppel by conduct and estoppel by judgment. However, considering the fervent appeal of the learned counsel for the petitioners, we feel that the petitioners can be granted time till 31/10/2010 on condition that the petitioners will pay occupational charges at the rate of Rs.1 Lakh per month from 15/8/2010 till 31/10/2010. If it is noticed by the Execution Court that the petitioners have caused any default in the matter of payment of rent charged at the above rate, it is open to that Court to order and effect delivery forthwith. It is made clear that under no circumstances, further WPC.No.25559/2010 10 extension of time will be granted to the petitioners. **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** dpk