Dr. Sheela Nayanar v. M.M. Baby

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 O.P(RC)NO.27 OF 2022** **AGAINST THE ORDER DATED 31.01.2022 IN EXECUTION PETITION NO.215 OF 2021 IN R.C.P 30 OF 2017 OF THE MUNSIFF'S COURT,** ## **THALIPARAMBA** ## **PETITIONER/PETITIONER:** **DR.SHEELA NAYANAR AGED 71 YEARS D/O.DAMODARAN NAYANAR, NAYANAR HOUSE, COURT ROAD, THALIPARAMBA AMSOM DESOM , THALIPARAMBA P.O - 670 141 BY ADVS. ZAKEER HUSSAIN K.A.SANJEETHA** ## **RESPONDENT/RESPONDENT:** **M.M.BABY AGED 54 YEARS S/O.MATHEW. BUSINESS, VELIYATH HOUSE, RESIDING AT VELLIKKEEL ROAD JUNCTION, PATTUVAM AMSOM DESOM, P.O ARIYIL (VIA) THALIPARAMBA - 670 143 BY ADVS. MATHEW KURIAKOSE G.GIREESH** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 27.07.2022, THE COURT ON 03.08.2022 DELIVERED THE FOLLOWING:** 2 O.P(RC) No.27 of 2022 ## **J U D G M E N T** ## Ajithkumar, J This original petition is filed by the petitioner in R.C.P No.30 of 2017 on the file of the Rent Control Court (Munsiff), Thaliparamba. She filed E.P No.215 of 2021 seeking delivery of the petition schedule building in execution of order dated 08.02.2021 in R.C.P No.30 of 2017. E.P was dismissed by the Execution Court (Munsiff), Thaliparamba as per the order dated 31.01.2022. Challenging that order, the petitioner is before this Court with this original petition filed under Article 227 of the Constitution of India. 2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 3. The petitioner filed R.C.P No.11 of 2018 seeking eviction of the respondent from the petition schedule building under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner also filed R.C.P No.30 of 2017 against the respondent seeking eviction from the petition schedule building under Section 11(2)(b) and 11(4)(i) of the Act. Both matters were referred for mediation. A settlement was arrived at between the parties resulting in their executing a compromise 3 ## O.P(RC) No.27 of 2022 before the learned mediator on 27.01.2020. The Rent Control Court on recording the mediation agreement allowed the Rent Control Petitions in terms of the mediation agreement. The Rent Control Court directed in the common order dated 08.02.2021, Ext.P1 as follows: “5. The Rent Control Petitions are allowed in terms of the mediation agreement. The respondent shall vacate the petition schedule building on or before 31.03.2024. Mediation agreement shall form part of the order. No costs.” 4. The petitioner filed E.P No.215 of 2021 in R.C.P No.30 of 2017 invoking the provisions under Order XXI Rule 35 of the Code of Civil Procedure 1908 seeking delivery of the petition schedule building. The precise reason stated in support of the claim for delivery is that the respondent failed to make payment of rent for the month of May 2021 and that amounted to violation of the term contained in Clause 6 of Ext.P2 mediation agreement entailing his ejectment from the petition schedule building. 5. The respondent filed Ext.P4 counter statement. It was contended that the execution petition was premature and nonpayment of rent would not on its own makes Ext.P1 an order of 4 O.P(RC) No.27 of 2022 eviction under 11(2)(b) of the Act obliging the respondent to surrender vacant possession of the petition schedule building. Defaulting payment of rent for one month, at any rate, is not a reason for ejectment of the respondent in the execution of Ext. P1. An order of eviction on the ground of arrears of rent is subject to the provisions of Section 11(2)(c) of the Act. The terms of Ext.P2 agreement do not amount to an order under section 11(2)(b) of the Act, and it maximum gives a cause of action for the petitioner to file a petition for eviction on the ground of arrears of rent even prior to the appointed date of 31.03.2024 for surrendering possession of the building. Accordingly, the respondent sought to dismiss the Execution Petition. 6. The Execution Court after considering the rival contentions concluded that the terms of Ext.P2 settlement agreement could not transform to an order of eviction under Section 11(2)(b) of the Act, even in spite of default in payment of rent and therefore the Execution Petition was not maintainable. 7. The learned counsel appearing for the petitioner would submit that payment of rent without any default was the mandatory condition for the respondent to continue in the 5 O.P(RC) No.27 of 2022 premises and the order of eviction as per Ext.P1 would take effect from its date namely, 08.02.2021. Therefore it is contended that the Execution Court went totally wrong in holding that only if a fresh order under Section 11(2)(b) of the Act is obtained, the petitioner can get vacant possession of the building. 8. The learned counsel appearing for the respondent on the other hand would contend that the terms of Ext.P2 are lucid enough to indicate that the respondent has every right to continue in the tenanted premises till 31.03.2024 without any demur or objection. In fact, there occurred default for payment of rent for the month of May 2021 on account of the closure of business due to COVID 19 and the request of the respondent to waive payment of the rent for that month was mercilessly declined by the petitioner with a further action of filing the execution petition. It is contended that the intent of clause 6 in Ext.P2 is only to ensure the cause of action for eviction in the event of default in payment of rent before 31.03.2024, the date appointed for surrendering vacant possession of the petition schedule building. The learned counsel also would contend that this original petition under Article 227 of the Constitution of India is not maintainable since the 6 O.P(RC) No.27 of 2022 alternative remedy of revision under the proviso to Section 14 of the Act is available to the petitioner. 9. In **A.Venkatasubbiah Naidu v. S.Chellappan & ors. [2000(7) SCC 695]** the Apex Court held that though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of statutory remedies before he resorts to a Constitutional remedy. 10. The Apex court in **Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others [2019 (9) SCC 538]** explained the principle further. It was held that it is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. On the facts of that case it was further held that the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. 7 O.P(RC) No.27 of 2022 11. In Ext.P6, the Execution Court considered whether Ext.P1 order can be treated as an order of eviction under Section 11(2)(b) of the Act. Its consequence definitely is the maintainability or not of the Execution Petition, Ext.P3. The Execution Court held after interpreting the terms of settlement contained in Ext.P2 that there was no executable order under the provisions of section 11(2)(b) of the Act. Such an order is one passed under Section 14 of the Act. Under Section 14 of the Act, every order made under section 11 is liable to be executed by the Munsiff or if there are more than one Munsiff, the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him. The proviso says that an order passed in execution under the section shall not be subject to an appeal, but shall be subject to revision by the court to which appeals ordinarily lie against the decisions of the Munsiff. Therefore the petitioner could have challenged Ext.P6 order in revision before the court of appeal. 12. In the light of the principle laid down in the aforesaid decisions, the petitioner ought to have taken recourse to that remedy. No reason whatsoever has been stated by the petitioner 8 O.P(RC) No.27 of 2022 for approaching this court without resorting to the statutory remedy. Hence we hold that this original petition is not maintainable and the remedy of the petitioner is to file a revision under the proviso to Section 14 of the Act if she so proposes. In view of that matter, we do not propose to consider the rival contentions on the merits of the matter. We, therefore, dismiss this original petition, leaving open the legal and factual contentions of the parties. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** PV 9 O.P(RC) No.27 of 2022 ## **APPENDIX OF OP (RC) 27/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE ORDER DATED 08-02-2021 PASSED IN RCP NO. 30/2017 OF THE RENT CONTROL COURT (MUNSIFF) THALIPARAMBA Exhibit P2 TRUE COPY OF THE MEDIATION AGREEMENT DATED 27-01-2020** **Exhibit P3 TRUE COPY OF THE EXECUTION PETITION NO. 215/2021 DATED 11-08-2021 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT,THALIPARAMBA Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 29-11-2021 IN E.P NO 215/2021 IN RCP NO. 30/2017 Exhibit P5 TRUE COPY OF THE CALCULATION STATEMENT FILED BY THE PETITIONER IN EP NO 215/2021 Exhibit P6 TRUE COPY OF THE ORDER DATED 31-01-2022 IN E.P NO 215/2021 IN RCP NO. 30/2017 OF THE MUNSIFF COURT, THALIPARAMBA RESPONDENT'S EXHIBITS Exhibit R1(a) TRUE COPY OF THE LEASE DEED DATED 25.11.2014 ENTERED INTO BY THE PETITIONER AND THE RESPONDENT Exhibit R1(b) TRUE COPY OF THE REPRESENTATION DATED 09.06.2021 SEND BY THE RESPONDENT TO THE PETITIONER Exhibit R1(c) TRUE COPY OF THE REPLY DATED 11.06.2021 ISSUED BY THE PETITIONER TO THE RESPONDENT Exhibit R1(d) TRUE COPY OF THE LAWYER NOTICE DATED 23.07.2021 ISSUED BY THE PETITIONER'S COUNSEL TO THE RESPONDENT Exhibit R1(e) TRUE COPY OF THE REPLY NOTICE DATED 03.08.2021 ISSUED BYTHE RESPONDENT'S COUNSEL TO THE PETITIONER'S COUNSEL**