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High Court of KeralaDivision BenchOriginal Petition dismissed; directions issued ...

Jameela Beevi v. M.S. Mohammed Al-Fathah Manzil and others

Case / Petition Number:OP(R.C) No.4312 of 2011 (O)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Pius C. Kuriakose
  • A. V. Ramakrishna Pillai
Judgment Date
2012-01-30
Court Decision / Holding
OP (R.C) No.4312 of 2011 dismissed. However, the court directed the Munsiff Court, Kayamkulam to expedite EA 177/2011 and EP 6/09 and complete the enquiry within six weeks, and directed the Mavelikkara Sub Court to list the specific performance suit for trial and dispose of it at the earliest.
Final Disposition
Original Petition dismissed; directions issued to expedite proceedings and list related suit for trial; eviction rights to be maintained while pending proceedings continue into specific performance case.

Parties to the Case

Appellants / Petitioners

  • Jameela Beevi

Respondents

  • M.S. Mohammed Al-Fathah Manzil, Aayikkad, Veruvally Bhagom Muri, Keerikad Village - 690 508
  • Saifudeen, W/o Abdul Azeez, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Sheeja, D/o Jameela Beevi, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Sajibai, D/o Jameela Beevi, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Haseenabai, D/o Jameela Beevi, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Bijumon, S/o Abdul Azeez, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Midhil Raj @ Animon, S/o Abdul Azeez, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Raseena, D/o Jameela Beevi, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Rincy, D/o Jameela Beevi, Oodakkal Veedu, Kayamkulam Muri, Kayamkulam Village - 690 502
  • Shaji, S/o Abdul Khader Kunju, Chyakarern Parambil, Erva Muri, Pathiyoor Village - 690 552
  • Rajeena, W/o Shaji, Chyakarern Parambil, Erva Muri, Pathiyoor Village - 690 552

Legal Representation & Advocates

Counsels for Petitioners

  • • George Varghese (Perumpallikuttyil)
  • • A.R. Dileep
  • • Smt. Nava Varghese
  • • Sri. Manu Sebastian

Counsels for Respondents

  • • P. Sreekumar
  • • K.S. Manu (Punukkonnoor)
  • • V. Sunil Kumar (Panachamoodu)

Case Synopsis & Summary

This Original Petition (Article 227 challenge) is filed by Jameela Beevi, the decree holder, challenging Ext.P5, an order in EA No.177/2011 in EP No.6/09 in RCP No.9/06 before the Munsiff Court, Kayamkulam. The eviction was granted under sections 11(2)(b) and 11(3) of the Rent Control Act and was upheld by this Court in Ext.P1. Ext.P2 is the supporting affidavit for the obstruction petition and EA. The Munsiff’s Ext.P5 postpones a final decision, constituting an enquiry into objections rather than a summary rejection, which the petitioner contends is improper since the obstructor claims relief under the judgment debtors (respondents 10–11). The petitioner argues that in such circumstances there is no room for enquiry and the fruits of the eviction order should be preserved. The Respondents counter that the obstruction petition requires scrutiny and an enquiry to determine the true rights of possession, with a pending suit for specific performance at Mavelikkara Sub Court. The High Court examines its own jurisdiction under Article 227, citing Kuruvilla v. Kesavan to illustrate the limits of supervisory review and the treatment of eviction-based execution orders under Section 14. Ultimately, the court declines to exercise supervisory jurisdiction but directs expedited handling of EA 177/2011 and EP 6/09 and lists the related suit for trial, balancing eviction outcomes with ongoing proceedings.

Provisions of Law Cited

Article 227 of the Constitution of IndiaSection 11(2)(b) and Section 11(3) of Act II of 1965Section 14 of Act II of 1965

Legal Doctrines & Maxims

  • Visitorial jurisdiction under Article 227 is exceptional and will be invoked very sparingly.
  • An order of execution for eviction after holding enquiry cannot be treated as an order in execution for the purposes of Section 14.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Ext.P2 (petition/obstruction petition) is not maintainable since the first respondent claims rights under the judgment debtors (R1–R11). When the obstructor asserts rights under the judgment debtors, there is no scope for an enquiry. The Execution Court was not justified in directing an enquiry and thereby depriving the petitioner of the fruits of the Ext.P1 eviction order. Reliance on Kuruvilla v. Kesavan (1980 KHC 88) is cited to argue that an order passed in execution after enquiry cannot be treated as an order in execution for Section 14. The petitioner submits that Article 227 jurisdiction is a limited, supervisory remedy and not a general correction mechanism for orders of a subordinate court. The outcome sought is quashing Ext.P5 and expediting EA 177/2011 and EP 6/09, while the related suit for specific performance is listed for trial in the Mavelikkara Sub Court. The court should safeguard the eviction order while allowing the ongoing proceedings to run their course.

Contentions of Respondents

The respondents argue that Ext.P5 requires scrutiny and that an enquiry is appropriate to determine the actual rights of possession given the structure of the claim (including a pending suit for specific performance). They contend that the petitioner’s remedy under Section 14 is distinct and that the obstruction petition, though connected to a decree holder’s eviction, involves disputed facts necessitating an enquiry before a final determination in EA 177/2011. The respondents rely on the procedural framework and the need to verify the correctness of the claim of possession, especially since the first respondent asserts rights through agreements and possession during pendency. They emphasize that eviction enforcement cannot proceed uncontested without appropriate examination of competing claims.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Kuruvilla v. Kesavan1980 KHC 88Mentioned OnlyCited as authority regarding the limits of visitorial jurisdiction and the nature of execution orders under Section 14; used for background discussion rather than as a binding holding in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933 OP(R.C) No.4312 of 2011 (O) ------------------------(AGAINST ORDER IN E.A 177/11 IN E.P 6/09 IN RCP.9/2006 of MUNSIFF COURT, KAYAMKULAM) ## PETITIONER: ------------------- JAMEELA BEEVI, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE SRI.MANU SEBASTIAN ## RESPONDENT(S): ------------------------- 1. M.S.MOHAMMED AL-FATHAH MANZIL FROM AAYIKKAD, VERUVALLY BHAGOM MURI, KEERIKKAD VILLAGE- 690 508. 2. SAIFUDEEN, W/O. ABDUL AZEEZ, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 3. SHEEJA, D/O. JAMEELA BEEVI, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 4. SAJIBAI, D/O. JAMEELA BEEVI, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 5. HASEENABAI, D/O. JAMEELA BEEVI, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 6. BIJUMON, S/O. ABDUL AZEEZ, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. OP(R.C) No.4312 of 2011 (O) -: **2** :- 7. MIDHIL RAJ @ ANIMON, S/O. ABDUL AZEEZ, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 8. RASEENA, D/O JAMEELA BEEVI, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 9. RINCY, D/O JAMEELA BEEVI, OODAKKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE - 690 502. 10. SHAJI, S/O. ABDUL KHADER KUNJU, CHYAKARAN PARAMBIL, ERUVA MURI, PATHIYOOR VILLAGE - 690 552. 11. RAJEENA, W/O SHAJI, CHYAKARAN PARAMBIL, ERUVA MURI, PATHIYOOR VILLAGE - 690 552. R1 BY ADVS.SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) R2 TO R9 BY ADV.SRI.V.SUNIL KUMAR (PANACHAMOODU) THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 30-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## _**OP(R.C) No.4312 of 2011 (O)**_ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1:- TRUE COPY OF ORDER DATED 24/06/2011 IN RCR NO.253/2011.** **P2:- TRUE COPY OF E.A NO.177/2011 IN RCP 9/06.** **P3:- TRUE COPY OF PLAINT IN OS NO.108/09 ON THE FILE OF THE SUB COURT, MAVELIKKARA.** **P4:- TRUE COPY OF CMP NO.201/09.** - **P5:- TRUE COPY OF ORDER DATED 26/11/2011 IN E.A NO.177/11.** ## **RESPONDENTS' EXHIBITS:- NIL** //True Copy// **PA To Judge** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ** --------------------------------------------O.P (R.C) No.4312 of 2011 --------------------------------------------Dated this the 30[th] day of January, 2012 ## **JUDGMENT** ## Pius C. Kuriakose, J Under challenge in this original petition filed under Article 227 of the Constitution of India is Ext.P5 order passed by the Munsiff, Kayamkulam. Ext.P5 order is passed in E.A No.177 of 2011 in E.P No.6/09 in R.C.P No.9/06. E.P No.6/09 was filed by the petitioner who has in her favour, an eviction order passed under Section 11(2)(b) and Section 11(3) confirmed even by this Court under Ext.P1 order. Ext.P2 is the copy of the affidavit in support of E.A No.177/2011 and the Execution Application. The learned Munsiff under Ext.P5 has not passed final orders on Ext.P2. Instead, taking the view that an enquiry is necessary, the learned Munsiff has posted the E.A No.177/2011 for filing of objections by the petitioner, who is the decree holder. 2. Ext.P5 is challenged on the reason that Ext.P2 claim petition/obstruction petition, is perse, not maintainable and hence, should have been summarily rejected. _**O.P(RC) No.4312 of 2011**_ -:2:- 3. The learned counsel for the petitioner submitted the averments in the affidavit in support of Ext.P2 will clearly show that the first respondent obstructor is claiming under the judgment debtors who are respondent Nos.10 & 11. When the obstructor is claiming under the judgment debtor, there is no scope for an enquiry. The learned Execution Court was not justified in directing an enquiry and thereby depriving to the petitioner, the fruits of Ext.P1 eviction order which was finally passed in her favour by this Court. 4. We have given our anxious consideration to the submissions of the learned counsel for the petitioner. We have carefully gone through Ext.P5 and Ext.P2. When we enquired of the learned counsel for the petitioner as to whether the petitioner does have a remedy against Ext.P5 under Section 14 of Act 2 of 1965, the learned counsel answered by drawing our attention to the judgment of this Court in _**Kuruvilla v. Kesavan (1980 KHC 88)**_ . True in _**Kuruvilla's case**_ (cited supra) it has been held by this Court that an order passed by the Execution Court executing the eviction order passed by the Rent Control Court on a claim petition _**O.P(RC) No.4312 of 2011**_ -:3:- or an obstruction petition after holding enquiry, cannot be treated as an order in execution for the purpose of Section 14. 5. As already indicated under Ext.P5 the learned Munsiff has only posted the obstruction petition filed by the first respondent for filing of objection by the petitioner. A reading of Ext.P5 shows that the learned Munsiff is contemplating an enquiry. 6. We are not impressed by the submission of the learned counsel for the petitioner that Ext.P2 petition will show, perse, that first respondent is claiming under the judgment debtors. A careful reading of the affidavit in support of Ext.P2 and Ext.P5 order(which gives us an idea as to what were the submissions addressed on behalf of the petitioner before the learned Munsiff) shows that the first respondent relies on an agreement for sale of the building between him and the previous owner of the building and that the said issue is pending before the Mavelikkara Sub Court in a regular suit for specific performance. It is further seen that the first respondent has a further case that he was put in possession of the building during the pendency of the proceedings by the tenant with the consent of the petitioner landlady. May be the case put forth _**O.P(RC) No.4312 of 2011**_ -:4:- by the first respondent is not a very probable one. But we are not able to agree that the learned counsel for the petitioner who submits that Ext.P2 is an application which is, perse, liable to be thrown out. 7. We should now remind ourselves of the limits of the jurisdiction which is being invoked. Visitorial Jurisdiction under Article 227 is not to be invoked for correcting an passed by a subordinate judicial authority. Visitorial jurisdiction is exceptional and will be invoked very sparingly. 8. We do not think that Ext.P5 order can be branded as an order patently, illegall or passed without jurisdiction, or is one which can be branded as a perverse order in the sense that such an order will not be authorised by any person having reasonable learning and training in law. As we are not convinced that Ext.P5 is liable to be visited under Article 227, we decline jurisdiction and dismiss the Original Petition. However, considering the submissions of the learned counsel for the petitioner, there will be a direction to the Munsiff Court, Kayamkulam to expedite matters in E.A No.177/2011as well as in E.P No.6/09 and to complete the enquiry _**O.P(RC) No.4312 of 2011**_ -:5:- at the earliest, at any rate, within six weeks on receiving copies of this judgment. Simultaneously, there will be a direction to the Sub Court, Mavelikkara, which is in seizin of the specific performance suit filed by the first respondent to special list the suit for trial. Once pretrial steps are over, to try the same and dispose of the same at the earliest. Sd/- **PIUS C. KURIAKOSE JUDGE** Sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //True Copy// PA To Judge krj