Geetha Prasad and Arjun v. P. Mariyam and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938 ## OP (RC).No. 129 of 2016 (O) ---------------------------- ## PETITIONER(S): ------------- ## 1. GEETHA PRASAD, AGED 56 YEARS, W/O.VELUTHEDATH PRASAD, UTHOLI HOUSE, KOYILANDY TALUK, THIRUVANGOOR AMSOM, VENGALAM DESOM, KOZHIKODE DISTRICT. ## 2. ARJUN S/O.VELUTHEDATH PRASAD, AGED 29 YEARS UTHOLI HOUSE, KOYILANDY TALUK, THIRUVANGOOR AMSOM, VENGALAM DESOM, KOZHIKODE DISTRICT. ## BY ADV. SRI.P.K.BABU ## RESPONDENT(S): -------------- ## 1. P.MARIYAM AGED 83 YEARS, D/O.KOLLANKANDY MUHAMMED @ MAMMU RAHMATHPARAMBIL, UNNIKULAM AMSOM, POONOOR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT -673 574 ## 2. R.P.MUHAMMED ASHARAF, AGED 62 YEARS, S/O.ABOOBACKER HAJI, AGRICULTURE, RAMACHAMPARAMBA, UNNIKULAM AMSOM, KANDAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 574 OP (RC).No. 129 of 2016 -2- 3. R.P.MUHAMMEDALI, S/O ABOOBACKER, HAJI, AGED 60 YEARS, RAMACHAMPARAMBA, UNNIKULAM AMSOM, KANTHAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE 673 574 4. R.P.MUHAMMED ABDUL NASAR, S/O ABOOBACKER HAJI, AGED 58 YEARS, RAMACHAM PARAMBA, UNNIKULAM AMSOM, KANTHAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE 673 574 5. V.P.AYISA, W/O R.P.MUHAMMED SALIH, 56 YEARS, SWASTHAM RAMACHAM PARAMBA, UNNIKULAM AMSOM, KANTHAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE - 673 574 6. R.P.JAMEELA, D/O ABOOBACKER HAJI, 54 YEARS, SWASTHAM, RAMACHAMPARAMBA, UNNIKULAM AMSOM, KANTHAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 574 R2-R6 BY ADV. SRI.K.SHIBILI NAHA R2-R6 BY ADV. SMT.A.LOWSY THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 28-102016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 129 of 2016 (O) ---------------------------- ## APPENDIX ## EXHIBITS ----------------------- EXT.P1 COPY OF THE ORDER IN E.A 145/2016 IN EP 122/2013 IN RCP NO.7/2010 DATED 11/7/2016 ON THE FILE OF THE RENT CONTROLLER COURT (MUNSIFF COURT) KOYILANDY. EXT.R3(a)A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS HEREIN IN E.A.144/16 EXT.R3(b)A TRUE COPY OF THE REPORT FILED BY THE AMIN BEFORE THE TRIAL COURT IN E.P.NO.122/13 //True copy// P.S to Judge ## **K.T.SANKARAN & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - O.P.(RC).129 of 2016 - - - - - - - - - - - - - - - - Dated 28[th] October, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## A.M.Babu, J. - 1.Petitioners are tenants. Respondents are the landlords. They sought eviction of the tenants under Section 11(4)(v) of Act 2 of 1965. The Rent Control Court, Koyilandi allowed R.C.P.7 of 2010. The tenants were directed to put the landlords in possession of the tenanted premises. The appeal of the tenants, R.C.A.83 of 2013, was dismissed by the Rent Control Appellate Authority, Kozhikode. This Court dismissed R.C.R.165 of 2015, but granted time to the tenants to vacate. The time initially granted was extended by this Court. - 2.It appears that E.P.122 of 2013 was kept in abeyance by the Munsiff's Court, **OP(RC).129 of 2016** 2 Koyilandi in view of the time granted by this Court to the tenants to vacate. The tenants did not vacate even after the expiry of the extended period. Therefore the landlords sought delivery of possession of the building. The learned Munsiff directed to deliver possession of the building to the landlords on or before 15.7.2016. The tenants filed E.A.145 of 2016. It was filed under Sections 47 and 151 of the CPC. The request to the executing court was to set aside the order of the Rent Control Court, the judgment of the Appellate Authority and the order of this Court in revision. The tenants alleged that the landlords played fraud on court to get the prayer for eviction allowed. - 3.Petitioners/tenants alleged as under in their application, E.A.145 of 2016: The room shown in the 'A' schedule to **OP(RC).129 of 2016** 3 their application was rented out to their predecessor-in-title by the respondents/landlords. The 'B' schedule to the application is the property shown in the schedules to the rent control petition and the execution petition. The said 'B' schedule property was never in the possession of the petitioners/tenants. The respondents/landlords cannot get the 'A' schedule property delivered to them in execution of the order of eviction passed in the rent control proceedings. The measurements of the 'A' schedule property do not tally with the measurements of the 'B' schedule property. The respondents cheated the petitioners and played fraud on court to obtain the order of eviction. The orders and judgment so obtained are liable to be set aside. 4.Respondents/landlords raised the following contentions: The building shown **OP(RC).129 of 2016** 4 in the 'A' schedule is the building shown in the 'B' schedule too. A minor discrepancy in the measurement is made use of to prepare the 'A' schedule. One and the same door number is shown in the 'A' schedule, the 'B' schedule, the schedule to the rent control petition and the schedule to the rent deed. The petitioners did not dispute the identity of the tenanted building in the trial Court, the Appellate Authority and the High Court. E.A.145 of 2016 is filed only with the intention to drag the execution proceedings. 5.Holding it to be devoid of merit, the learned Munsiff dismissed E.A.145 of 2016. He said he could see no element of fraud in obtaining the order of eviction by the landlords. The learned Munsiff stated that the application was filed by the petitioners with a view to harass the **OP(RC).129 of 2016** 5 respondents and to drag the execution proceedings. According to the learned Munsiff, such an application is an abuse of the process of the Court. - 6.Heard the learned counsel on both sides. Perused the order of the learned Munsiff in E.A.145 of 2016. - 7.Fraud on court vitiates everything. An order obtained by practising fraud on Court is a nullity (Vide Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319). Such an order cannot be executed. Did the respondents commit fraud on court to obtain the order of eviction against the petitioners? That is the question. - 8.To call it a fraud, the petitioners highlight the measurements of the tenanted premises. They allege that the measurements of the room shown in the **OP(RC).129 of 2016** 6 schedule to the rent control petition do not tally with the measurements of the room in their possession. The petitioners have appended to their application two schedules, namely, 'A' and 'B'. The learned Munsiff has shown the measurements of the 'A' and 'B' schedules in his order. The east-west measurement shown in the 'A' schedule and the 'B' schedule is the same, 10 feet. The north-south measurement shown in the 'A' schedule is 7 feet. It is shown to be 4½ feet in the 'B' schedule. The attempt of the petitioners has been to build a case on this alleged discrepancy in the north-south measurement. Even if there is such a discrepancy, it is not going to change the property. The learned Munsiff has noted a few more facts. The building shown in the 'A' schedule and the one shown in the 'B' schedule bear the same door No., BP 4/831. The respondents have only one room. That room was in the **OP(RC).129 of 2016** 7 possession of the petitioners as tenants. Never at any stage of the rent control proceedings in three courts the petitioners had a case that they were sought to be evicted from a building which was not the subject matter of the lease. The Advocate Commissioner inspected the building twice and identified it. The description of the building in the rent deed and the description in the schedule to the rent control petition are one and the same. The above facts noted by the learned Munsiff shall be accepted as correct. There has been no complaint at the time of hearing or in the Original Petition that the learned Munsiff committed any factual mistake in his order. We are in complete agreement with the learned Munsiff that the building shown in the 'A' schedule to E.A.145 of 2016 is the building shown in the 'B' schedule to that application. There has **OP(RC).129 of 2016** 8 been no fraud on anybody, much less on court. The petitioners seem to be under an impression that they could dupe the executing court and also this Court. The Original Petition is liable to be dismissed. We dismiss it. But we do not stop there. 9.The case put forth in E.A.145 of 2016 is false. The rent control petition was allowed since the tenants ceased to occupy the building continuously for over six months without reasonable cause. Their appeal and revision were dismissed. This Court granted them time till 31.12.2015 to vacate the premises. They did not vacate it, but sought more time to vacate. They approached this Court for further time to vacate. They were given time till 30.6.2016. The 1[st] petitioner in her affidavit undertook to vacate the premises on or before 30.6.2016. But the **OP(RC).129 of 2016** 9 petitioners did not vacate. Instead, they came with a false case. They attempted to dupe the executing court falsely contending that the respondents practised fraud on court to get the order of eviction. The learned Munsiff rightly dismissed the application. He rightly said that the application of the petitioners was an abuse of the process of the court. The learned Munsiff stated that it was the duty of the counsel concerned to give proper advice to his parties. The petitioners did not choose to leave it there. They approached this Court with the present Original Petition under Article 227 of the Constitution of India. Article 227 is not meant for vexatious litigants. The attempt to cling on to the tenanted premises is made by the tenants who are under orders of eviction on the ground of cessation of occupation. Courts should be strong to unscrupulous litigants. Abuse of **OP(RC).129 of 2016** 10 the process of the Court should not be tolerated. Misuse of Article 227 of the Constitution shall be curbed. Cantankerous litigants should be taxed with exemplary costs. We refer to Ravinder Kaur v. Ashok Kumar (AIR 2004 SC 904) and Ramrameshwari Devi v. Nirmala Devi [(2011) 8 SCC 249]. We are of the considered and firm opinion that the petitioners should be directed to pay costs to the respondents. We fix it at Rs.10,000/-. 10.The 1[st] respondent in this Original Petition died. It appears that her heirs are already in the party array. Even if it is not so, impleading her heirs is not necessary. For, an order against a dead person alone is a nullity, and not an order in favour of a dead person. 11.The Original Petition is dismissed. We **OP(RC).129 of 2016** 11 direct the petitioners to pay Rs.10,000/(Ten thousand only) as costs to the respondents for having harassed the respondents and misused the provisions of Article 227 of the Constitution of India. If it is not paid within one month from today, the respondents may execute this order as if it were a decree. Sd/- ## **K.T.SANKARAN Judge** **Sd/-** ## **A.M.BABU** ## **Judge** Mrcs/24.10.2016 //True copy// P.S to Judge