G. Radha Lekshmy, G. Haridas, G. Muraleedharan, P.G Seetha Lakshmy and Latha Muraleedharan v. Sajitha Panayappallil Thankappan @ Sajitha Uday

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **OP (RC).No.104 OF 2019** **EA NOS.173,174 & 175 OF 2019 IN EA NO.619/2018 IN EP NO.288/2016 IN RCP NO.2/2010 OF RENT CONTROL COURT (MUNSIFF'S COURT), ERNAKULAM** ## **PETITIONERS:** |**1**|**G.RADHA LEKSHMY,AGED 75 YEARS,**| |---|---| ||**W/O. LATE SHRI. GOPALAKRISHNA RAO,**| ||**G. 198, KAVITHA, PANAMPILLY NAGAR, COCHIN-36.**| |**2**|**G. HARIDAS,AGED 55 YEARS,**| ||**S/O. LATE SHRI GOPALAKRISHNA RAO,**| ||**G. 198, KAVITHA, PANAMPILLY NAGAR, COCHIN-36.**| |**3**|**G. MURALEEDHARAN,AGED 53 YEARS,**| ||**S/O. LATE SHRI GOPALAKRISHNA RAO,**| ||**G. 198, KAVITHA, PANAMPILLY NAGAR, COCHIN-36.**| |**4**|**P.G SEETHA LAKSHMY,AGED 49 YEARS,**| ||**W/O. HARIDAS, G. 198, KAVITHA,**| ||**PANAMPILLY NAGAR, COCHIN-36.**| |**5**|**LATHA MURALEEDHARAN,AGED 47 YEARS,**| ||**W/O. MURALEEDHARAN, G. 198, KAVITHA,**| ||**PANAMPILLY NAGAR, COCHIN-36.**| ||**BY ADV. SRI.K.P.SREEKUMAR**| ## **RESPONDENT:** **SAJITHA PANAYAPPALLIL THANKAPPAN @ SAJITHA UDAY, AGED 46 YEARS, W/O. UDAYABHANU, PARTNER, INDIAN SAREE HOUSE, BROADWAY, COCHIN-31, REPRESENTED BY POWER OF ATTORNEY HOLDER MR. KAILASAN P.R, AGED 60 YEARS, AYYAPPANKAVU, CHITTOOR ROAD, ERNAKULAM NORTH P.O, COCHIN-682 018 R1 BY ADV. SRI.N.K.MOHANLAL** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 19.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 OP(RC) No.104 of 2019 ## **A.HARIPRASAD & T.V.ANILKUMAR, JJ. -------------------------------------O.P.(R.C.) No.104 of 2019 -------------------------------------Dated this the 19[th] day of August, 2019 JUDGMENT** ## **Hariprasad, J.** Heard the learned counsel for the petitioners and respondent. 2. Petitioners are owners of a building, which was outstanding in the possession of tenants. According to the petitioners, Indian Saree House, a partnership firm was holding the petition schedule building as tenant. Petitioners filed R.C.P.No.2 of 2010 before the Rent Control Court, Ernakulam impleading the firm as the 1[st] respondent, Sivaraman, who was the managing partner of the firm as the 2[nd] respondent and his sons, Udayabhanu and Nishanth, as respondents 3 and 4 respectively. It is the case of the petitioners that on 12.04.2011 Sivaraman died. On 30.06.2011 the respondents produced a memo showing names of the legal representatives of deceased Sivaraman. It was shown that Ammini Sivaraman, wife of deceased Sivaraman and her children, Udayabhanu, Sreedevi Narasimham and Nishanth are the persons on whom the right 3 OP(RC) No.104 of 2019 to be sued devolved after the death of Sivaraman. Since there was substantial representation of the legal representatives of deceased Sivaraman, the petitioners did not implead his daughter Sreedevi Narasimham and his wife Ammini Sivaraman. However, an order of eviction was passed by the Rent Control Court under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, "the Act"). The matter was taken up in appeal and the Rent Control Appellate Authority also confirmed the order of eviction considering merits of the factual and legal contentions raised by the parties. Thereafter, a revision was filed by the tenants before this Court which also ended in dismissal confirming the findings of the Rent Control Court and Appellate Authority. The revisional order was challenged in a special leave petition, S.L.P.No.10398 of 2018, before the Supreme Court. It is pointed out by the learned counsel for the petitioners that this Court while disposing the revision petition granted 11 months time for the tenants to vacate and in the special leave petition, the Supreme Court also granted 6 more months time to vacate the premises. The Supreme Court also directed the respondents to file an affidavit undertaking that tenants would vacate the premises within the stipulated time. Tenants filed an affidavit before the Supreme Court as well as before the execution court (Principal Munsiff's Court, Ernakulam) where E.P.No.288 of 2016 was pending. 3. Petitioners approached this Court by filing a contempt of 4 OP(RC) No.104 of 2019 court case, Cont.Case (C) No.2276 of 2018, complaining that the tenants did not comply with the assurances given in the undertaking affidavit. In the contempt case on 29.11.2018 this Court passed the following order: _“In pursuant to the notice issued on 23.11.2018 in this Contempt proceedings, Adv. Sri.T.A.Shain appears for Smt.Ammini Sivaraman (respondent No.4), who is also the power of attorney holder of respondent Nos.1, 2 and 3 respectively. The respondent Nos.5 and 6 are represented in Court by the learned counsel Sri.N.K.Mohanlal._ _2. The respondents are the tenants of the shop premises, which was the subject matter of the proceeding in the Rent Control Revision No.175/2017, where, direction was issued by the Division Bench on 23.6.2017 for vacating the premises in 11 months. When the High Court's direction was challenged in the Supreme Court, through the S.L.P.No.10398/2018, the S.L.P. was dismissed, and six months' further time was granted to the petitioners to vacate the premises on filing the usual undertaking. The undertaking was furnished accordingly that the tenants would vacate the premises within six months in terms of the order passed by the Supreme Court._ _3. We are informed by Sri.K.P.Sreekumar, the learned counsel for the petitioners (landlord) that in defiance of the undertaking given to the Supreme Court, the tenants continue to occupy the shop premises._ _4. In the above circumstances, we deem it_ 5 OP(RC) No.104 of 2019 _appropriate to direct for personal appearance of Smt.Ammini Sivaraman (respondent No.4), Smt.Sajitha Panayappallil Thankappan @ Sajitha Uday (responent No.5) and Sri.Kailasan P.R. (respondent No.6) at 1.45 p.m. on 30.11.2018. Post the matter tomorrow (30.11.2018) at 1.45 p.m._ _5. This order is being passed in the presence of Sri.T.A.Shain, the learned counsel appearing for respondent No.4 and Sri.N.K.Mohanlal, the learned counsel appearing for the respondent Nos.5 and 6. However, it is made clear that if the respondents either vacate the shop premises or furnish a written undertaking stating that they will vacate the shop premises within a week, by noon tomorrow, then the personal appearance of the respondent Nos.4, 5 and 6 will not be insisted upon.”_ 4. Thereafter, the matter was taken up by this Court on 30.11.2018. The undertaking affidavit filed by the power of attorney holder of the respondent was also perused by this Court. It is pertinent to note that the petitioners have a case that a copy of the undertaking affidavit was not furnished to their counsel and fraudulently an endorsement was made on the affidavit that a copy had been served. In order to prove this fact, I.A.No.2 of 2018 was filed in the contempt case wherein an affidavit by the advocate clerk attached to the learned counsel for the petitioners was also filed. It is therefore contended by the 6 OP(RC) No.104 of 2019 petitioners that to circumvent the possible difficulties, the respondent had changed her counsel. At the time when the matter was heard on 30.11.2018, although the respondent raised a contention that Ext.R1 application was pending consideration before the execution court even before initiation of the contempt proceedings, it is the case of the petitioners that maintainability or right to continue the execution proceedings was not seriously urged before the court dealing with the contempt of court case. In clear terms this Court as per Ext.P3 order dated 12.12.2018 issued the following directions: _“The learned counsel Sri.K.P.Sreekumar appearing for the petitioners submits that the copies of the undertaking ordered to be furnished by the respondent tenants through this Court's order dated 30.11.2018, although filed in Court, have not been provided to him. He accordingly submits that although two separate undertakings were filed by Smt.Ammini Sivaraman and Sri.Kailasan P.R., and all the respondents had agreed to vacate the tenanted premises, the premises are still in the custody of the respondents._ _2. We had already recorded in our previous order that the eviction of the tenants have been confirmed by all courts including the Supreme Court. It is also seen the two orders passed by us on 29.11.2018 and 30.11.2018 in the Cont.Case (C) No.2276 of 2018, were challenged by the tenant Sajitha Panayappallil Thankappan (respondent No.5) and others, but the Supreme Court dismissed the S.L.P.Nos.32629-32630 of 2018, through its recent order_ 7 OP(RC) No.104 of 2019 ## _dated 11.12.2018._ _3. Today, the respondent Nos.5 and 6 are represented by the learned counsel Sri.Saiby Jose Kidangoor and he submits that the keys of the tenanted premises are available with him, which can be handed over immediately to the landlord's lawyer._ _4. Responding to the above submission, the learned counsel Sri.K.P.Sreekumar submits although the keys are available with the counsel for the tenants, certain articles are still retained in the tenanted shop premises and therefore the handing over of the tenanted premises should be supervised through a Court appointed Advocate Commissioner._ _5. Having considered the above, Advocate Sri.Santhosh Mathew is appointed as the Advocate Commissioner to supervise the handing over of the vacant possession of the tenanted premises, locking it and providing the keys to the petitioners. To enable the Advocate Commissioner to discharge his responsibility, the petitioner is directed to pay Rs.25,000/- (Rupees Twenty Five Thousand only) to him. The Advocate Commissioner shall inspect the tenanted shops and ensure that all goods are cleared and if necessary with the Police assistance and thereafter lock the premises and handover the respective keys to the petitioners. Such steps should be taken on or before 14.12.2018.”_ As per Ext.P4 judgment this Court dropped the contempt of court case finding that the tenants have vacated the premises and gave vacant possession to the petitioners after removing all the articles belonging to 8 OP(RC) No.104 of 2019 them. In the light of these developments the petitioners did not press the execution proceedings pending before the Munsiff's Court. Thereafter the respondent herein filed Exts.P5 to P7 petitions before the execution court requesting to reopen the closed execution proceedings, to restore possession of the building to her and also to injunct the petitioners from inducting strangers into the building. According to the petitioners, Exts.P5 to P7 petitions amount to abuse of the process of court. 5. Per contra, learned counsel for the respondent strongly contended that the respondent is not a party to the eviction proceedings. Admittedly she is the daughter-in-law of deceased Sivaraman and wife of the 3[rd] respondent in the eviction petition by name Udayabhanu. It is the case of the respondent that on 10.05.2011 she was inducted as a partner in the firm and her rights as partner were not adjudicated. Her further case is that other partners did not prosecute the case properly and she suffered prejudice on account of the improper conduct on the part of the respondents in the eviction petition. It is also contended by the learned counsel that the respondent has a right to resist the execution proceedings and that is why she filed Ext.R1 petition. However, fact remains that Ext.R1 petition, purportedly filed under Order XXI Rule 97 read with Sections 47 and 151 of the Code of Civil Procedure, 1908 (in short, “the Code”), has become infructuous subsequent to the surrender of possession evidenced from Ext.P4 judgment of this Court in Cont. 9 OP(RC) No.104 of 2019 Case (C). No.2276 of 2018. Respondent therefore contended that this development necessitated filing of Exts.P5 to P7 petitions. 6. Learned counsel for the petitioners argued that the respondent cannot be heard to say that she has any interest in the tenanted premises subsequent to Ext.P4 judgment in Cont. Case (C). No.2276 of 2018 passed by this Court. It is also pointed out that although a condition was incorporated in the undertaking affidavit filed by the respondent herein through her power of attorney to allow her to take up the contentions in Ext.R1 petition, this Court did not permit her to do so. Even though in so many words this Court did not disallow her claims, according to the learned counsel for the petitioners, the legal effect is that it has been denied. To buttress this argument, reliance is placed on a decision rendered by the Supreme Court in **N.Jayaram Reddi v. Revenue Divisional Officer (AIR 1979 SC 1393)** wherein it has been held as follows: _“.............. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party, even_ 10 OP(RC) No.104 of 2019 _if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantages to the other party.”_ It is the case of the petitioners that when their counsel raised a contention that a copy of the undertaking affidavit was not given to him and a forged signature of his clerk was endorsed on the original affidavit filed before this Court, to avoid penal consequences, the respondent changed her counsel and when that was pointed out before the court dealing with the contempt case, the condition in the undertaking was not pressed. On a perusal of the judgment in the contempt proceedings, it will be clear that this Court has not permitted the respondent to pursue her rights or rather, the respondent was not allowed to submit an undertaking embedded with conditions. The decision rendered by a learned single Judge in **Jayalakshmi v. Union Bank of India (2006(1) ILR Kerala 316)** wherein all the relevant decisions on the point were quoted is also cited before us. The principle stated therein based on the binding precedents reads as follows: _“The legal position is that even if plea is raised in the pleadings, if the same is not urged before the court it will be deemed to have been abandoned. A plea or point not mentioned in the judgment will be deemed to have been not_ 11 OP(RC) No.104 of 2019 _pressed. There is no presumption that the Advocate for the party pressed and urged every one of the grounds raised in the memorandum of appeal. On the contrary, the presumption is that only those points which were dealt with in the judgment were urged before the court. It is equally well settled that what transpired before court is to be gathered from the judgment and the statement in the judgment should be the last word on the question.”_ 7. Learned counsel for the respondent contended that merely vacating a building pursuant to an undertaking _ipso facto_ will not take away right of the respondent to get an adjudication in a petition filed under Order XXI Rule 97 of the Code. Theoretically this is correct. But, the situation in this case do not prompt us to accept the argument on the side of the respondent that she is entitled to take up the contention before execution court over and again. The respondent, if she was so particular, should have raised this issue before the court dealing with the contempt case and got a reservation of this contention. It appears that the court proceeded either not accepted the condition in the undertaking affidavit or it has rejected the conditions in the affidavit. In any view of the matter, we do not find any reason to accept the contention of the respondent that she is entitled to pursue the remedy before the execution court. If that is allowed, it will virtually go against the judgment 12 OP(RC) No.104 of 2019 passed by this Court in the contempt case on the representation made by the parties. In the result, original petition is allowed. Exts.P5 to P7 petitions are found to be sheer abuse of the process of court. Hence, they are hereby quashed. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** **T.V.ANILKUMAR, JUDGE.** ## **cks** 13 OP(RC) No.104 of 2019 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE ORDER OF THIS HON'BLE COURT**| |---|---| ||**DATED 29-11-2018 IN CONTEMPT CASE (CIVIL)**| ||**NO. 2276/2018(S)**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER OF THIS HON'BLE COURT**| ||**DATED 30-11-2018 IN CONTEMPT CASE (CIVIL)**| ||**NO. 2276/2018(S)**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER OF THIS HON'BLE COURT**| ||**DATED 12-12-2018 IN CONTEMPT CASE (CIVIL)**| ||**NO. 2276/2018 (S)**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT OF THIS HON'BLE**| ||**COURT DATED 18-12-2018 IN CONTEMPT CASE**| ||**(CIVIL) NO. 2276/2018**| |**EXHIBIT P5**|**TRUE COPY OF THE PETITION IN EA NO. 173/2019**| ||**IN EA NO. 619/2018 IN EP NO. 288/16 IN RCP**| ||**NO. 2/2010 DATED 20-05-2019.**| |**EXHIBIT P6**|**TRUE COPY OF THE PETITION IN EA NO. 174/2019**| ||**IN EA NO. 619/2018 IN E.P NO. 288/16 IN RCP**| ||**NO 2/2010 DATED 20-05-2019.**| |**EXHIBIT P7**|**TRUE COPY OF THE PETITION IN EA NO. 175/2019**| ||**IN EA NO. 619/2018 IN EP NO. 288/16 IN RCP**| ||**NO. 2/2010 DATED 04-01-2019.**| |**EXHIBIT P8**|**COPY OF I.A. NO.2/2018 WITH THE ANNEXURES.**| |**RESPONDENT'S EXHIBITS:**|| |**EXHIBIT R1**|**A TRUE COPY OF THE PETITION DATED 15/11/2018**| ||**IN EA 619/2018 BEFORE MUNSIFF S COURT**| ||**ERNAKULAM.**|