Jolly Sebastian and Others v. P.M. Ashraf and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941** **OP (RC).No.58 of 2018** **AGAINST THE ORDER/JUDGMENT IN EP 1/2018 of MUNSIFF COURT, KALPETTA** ## **PETITIONERS:** |**1**|**JOLLY SEBASTIAN**| |---|---| ||**AGED 51 YEARS,W/O.ABRAHAM,ASSISTANT MANAGER, NEETI**| ||**BHAVAN,KALPETTA, VYTHIRI TALUK.PRESENTLY,MANAGER,**| ||**WYNAD DISTRICT CO- OPERATIVE BANK,PADINJARATHARA**| ||**BRANCH,WYNAD- 673 575**| |**2**|**E.V.ABRAHAM**| ||**AGED 49 YEARS,S/O. VARGHESE,EDAYATH HOUSE**| ||**MANDAPAM.P.O.,BHEEMANADI VILLAGE, HOSDURG TALUK-**| ||**671314**| |**3**|**YASIR.P.K**| ||**AGED 31 YEARS,S/O. USMAN,PUNATHIKANDY HOUSE, RAVUTHAR**| ||**BUILDING,KALPETTA AMSOM DESOM,KALPETTA.P.O.- 673**| ||**121,VYTHIRI TALUK.**| ## **BY ADV. SRI.M.KRISHNAKUMAR** ## **RESPONDENTS:** |**1**|**P.M.ASHRAF**| |---|---| ||**AGED 49 YEARS,S/O. HUSSAIN RAWUTHER,CHELENJICHAL,**| ||**PARIYARAM.P.O.KALPETTA AMSOM DESOM,VYTHIRI TALUK,**| ||**WYNAD DISTRICT- 673 122.**| |**2**|**A.J. ANTONY**| ||**ADVOCATE,M.G.T BUILDING,KALPETTA NORTH.P.O.-673 122**| ||**VYTHIRI TALUK, WYNAD DISTRICT.**| |**3**|**K.M. MOHAN**| ||**ADVOCATE,M.G.T BUILDING,KALPETTA NORTH.P.O.-673 122**| ||**VYTHIRI TALUK, WAYNAD DISTRICT.**| OP (RC).No.58 of 2018 2 **BY ADVS. SMT.ANU JACOB SRI.C.M.ANDREWS SRI.P.T.MOHANKUMAR KUM.LAYA MARY JOSEPH SMT.ANITYA ANNIE MATHEW SMT.BOBY M.SEKHAR SMT.NEETHU RAVIKUMAR SMT.REVATHY P. MANOHARAN SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SRI.NABIL KHADER SRI.SHYAM PADMAN** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP (RC).No.58 of 2018 3 ## **JUDGMENT** ## **A.HARIPRASAD, J** Heard the learned counsel for the petitioners and respondents. Petitioners are the tenants under the 1[st] respondent who filed RCP.No.2/2012 before Rent Control Court, Kalpetta. Eviction of the petitioners were claimed under Section 11 (3) and 11 (4) (1) of the Kerala Building Lease and Rent Control Act 1965 (in short 'the Act'). Ext.P1 is the agreement which created the lease in question. It is seen that as per Ext.P3, the parties settled the matter and a compromise petition was filed under order XXIII Rule 3 of the Code of Civil Procedure 1908 (in short 'the code'). As per the terms of the compromise the petitioners were bound to pay enhanced rent till 31.12.2017 and on that day, without any objection and without any demur the petitioners had to vacate the premises. The compromise was recorded and an order of eviction was passed as per Ext.P4. Thereafter the 1[st] petitioner filed Ext.P5 before the Rent Control Court, Kalpetta requesting the court to recall Ext.P4 order. It is alleged that the 1[st] OP (RC).No.58 of 2018 4 petitioner is not a signatory to Ext.P3 compromise. It is also contended that the alleged compromise was entered into between the parties without her knowledge or consent. According to her statements, somebody had forged her signature and filed such a compromise to defeat her rights. Therefore she requested to recall the order. In that matter Ext.P6 order was passed by the Rent Control Court declining 1[st] petitioner's request to recall the order of eviction passed on a compromise. It is an admitted case that Ext.P6 order is now pending in appeal as RCA.No.7/2018 before the Rent Control Appellate Authority, Kalpetta. There was an order of stay passed by the Appellate Authority of further proceedings in RCP No.2/2012 before the Rent Control Court, Kalpetta and as per order dated 06.06.2018 the Appellate Authority found no reason to extend the interim stay, as maintainability of the appeal itself was in challenge. Therefore the interim order was not extended thereafter. 2. In the meanwhile, the Rent Control Court initiated proceeding against the 1[st] petitioner for filing a false affidavit (Ext.P5). Ext.P10 is the notice issued to the 1[st] petitioner intimating that she has committed an offence punishable under Section 193 IPC and the court OP (RC).No.58 of 2018 5 intended to conduct an enquiry into the matter. She submitted Ext.P11 statement in this matter. 3. In the meantime, Execution Petition was filed by the 1[st] respondent as EP No.1/2018 before the Munsiff Court, Kalpetta. Copy of the Execution Petition is Ext.P2. Now the matter is pending before the Executing Court. Thereafter, in Ext.P2 Execution Petition, Ext.P9 order for delivery was passed by the Court. In the above factual situation, the petitioners have approached this Court originally seeking certain reliefs. Subsequently, the petitioner filed IA no. 1/2018 and as allowed by this Court, additional pleadings have been incorporated in the original petition and an additional relief is also claimed as below. “ _1A. Declare that Ext.P4 order of eviction is against the mandatory provisions of Act 2 of 1965 and null and void and therefore inexecutable.”_ 4. The learned counsel for the petitioner contended that Ext.P3 Compromise is not genuine and the 1[st] petitioner has not signed thereon. It is also pointed out that her signature seen on an admitted document, namely Ext.P1 Rent Agreement, and that on Ext.P3 are strikingly different. According to the learned counsel she never entered into a compromise and that is evident from the 1[st] petitioner's OP (RC).No.58 of 2018 **==> picture [8 x 9] intentionally omitted <==** allegations in Ext.P5 affidavit. This Court, sitting in a jurisdiction under Article 227 of the Constitution, may not be able to enter a factual finding as to correctness of 1[st] petitioner's signature, seen on Ext.P3. The legal question emerging for consideration is whether Ext.P4, order of eviction, passed based on the alleged compromise can be enforced through a Court of law. It is a settled proposition that a decree passed by a Court without jurisdiction is a nullity and it can be challenged in execution proceedings, as well as in collateral proceedings, In _**Kiran Singh And Others V. Chaman Paswan And Others in AIR 1954 SC 340**_ , the following observations are made. _“In Kiran Singh Vs. Chaman Paswan the facts were that the appellant had undervalued the suit at Rs.2950/- and laid it in the Court of the Subordinate Judge, Monghyr for recovery of possession of the suit lands and mesne profits. The suit was dismissed and on appeal it was confirmed. In the second appeal in the High court the Registry raised the objection as to valuation under section 11. The value of the appeal was fixed at Rs.9980/-. A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the Court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the decree of the District Court_ OP (RC).No.58 of 2018 7 _was a nullity. Alternatively, it was contended that it caused prejudice to the appellant. In considering that contention at page 121, a four judge bench of this Court speaking through Venkitarama Ayyar, J. held that: (SCR p. 121)_ _“It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities.”_ _On merits it was held that since the appellant himself had invoked the jurisdiction of the civil court with undervaluation, the objection as to jurisdiction was not available by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of CPC; and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act._ _This Court has held that it is a well established principle that a decree passed by a Court without jurisdiction is a nullity_ OP (RC).No.58 of 2018 8 _and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings._ ## 5. Thereafter, the same principle was re-iterated by a 3 Judge Bench of the Apex Court in _**Sushil Kumar Mehta v. Gobind Ram Bohra 1990 (1) SCC 193**_ . “ _Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise of jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction, but there is defect in its exercise which does not go to the root of its authority, such a defect like_ OP (RC).No.58 of 2018 9 _pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits.”_ 6. Learned counsel for the petitioner contended that an order of eviction passed by a Rent Control Court on compromise, without complying with the requirements in section 11 of the Act, cannot be enforced. To buttress this contention, the decision reported in _**Thomas Vs. Easo 1999 (1) KLT 138**_ is pressed into service. In paragraph 5 & 6, the following observations are made by a learned Single Judge. _5. In Roshan Lal V. Madan Lal, AIR 1975 SC 2130, it was held as follows:_ _“If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The court can pass a decree on the basis of the compromise. In such a situation, the only thing to be seen is whether the compromise is in violation of the requirement of law. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to to have such a decree under law.”_ _From the above decisions, it is clear that if the ground for_ OP (RC).No.58 of 2018 10 _eviction exists in the compromise petition and on the basis of that, the order is passed, that order cannot be said to be nullity. The courts have taken the view that in order to satisfy this court can take into account the documents produced in the case. In most of the cases, when the compromise petition is filed, the defendant withdraw his objection which means that there is no objection on the part of the defendant. Further in the compromise, there will be an admission, admitting that the ground for eviction exists. This is taken as an item of evidence for coming to the conclusion that the order of eviction is justified._ _6. When we examine the facts of the case on the above basis, the following circumstances exist._ _1. The tenant admits that the landlord requires the building bonafide for his dependent._ _2. The tenant has no objection in vacating the building within a stipulated time._ _3. The tenant's business will suffer and no other alternative building is available._ _Counsel for the respondent wants me to read the contents in paragraph (1) of the compromise petition alone. If that is read alone, it is shown that the bonafide need is admitted and the tenant only wanted some time to vacate. But paragraph (1) cannot be read in isolation. It has to be read in conjunction with paragraph (2) of the compromise petition. Paragraph (2) shows that there is no alternate building available that if the tenant is evicted at that time, it will cause great hardship to him. The later clause shows that it will affect his business on which he depends._ OP (RC).No.58 of 2018 11 _Thus there is evidence to show that the need of the landlord is bonafide and also there is evidence to show that the tenant is entitled to the benefit of the proviso. In those circumstances, the Rent Control court was not be justified in ordering eviction. Hence, I am of the view that the order of eviction passed is not in conformity with the provisions of the Rent Control Act. There has been no satisfaction as to the question whether the tenant is liable to be evicted. In other words, the order is nullity._ ## 7. Recently, a Division Bench of this Court considered a similar question in _**Central Bank of India Vs. Beena Thiruvenkitam 2019 (3) KHC 819**_ which is held thus: _14. True, a literal interpretation of the provision contained in Section 11(1) of the Act would mean that it does not oust the jurisdiction of a Court to pass any order or decree for eviction otherwise than in accordance with the Act. This provision only bars eviction of a tenant except in accordance with the provisions of the Act. But, an order or decree for eviction of a tenant passed by a court, without jurisdiction over the subject matter, is a nullity (see Sushil Kumar Mehta v. Gobind Ram Bohra). Any proceeding instituted by a landlord for eviction of a tenant from a building falling within the ambit of the Rent Control Act, otherwise than as stipulated by the provisions in the act, is incompetent for lack of jurisdiction of the Court and any order or decree of the court in such_ OP (RC).No.58 of 2018 12 _proceedings is null and void (see M/s. East India Corporation Limited v. Shree Meenakshi Mills Limited). It is the settled legal position that in a case where the court lacks jurisdiction to pass an order of eviction of a tenant from a building situated in an area which comes within the purview of the Act, the order is null and void. When a special statute gives a right and also provides a forum for adjudication of the right, remedy has to be sought only under the provisions of that statute. There is no meaning in a court passing an order which is null and void and which is not executable. It is well settled that a void order cannot create neither legal rights nor obligations._ _15. Even in a case where the landlord and the tenant have entered into a compromise, in which the tenant has agreed to vacate the premises, a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by the landlord. An order for eviction of a tenant cannot be passed solely on the basis of a compromise between the landlord and the tenant. The court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. If the court does not find the permissible grounds for eviction disclosed in the pleadings and other materials on the record, no consent or compromise will give jurisdiction to the court to pass a valid order of eviction. The Rent Control Court is not competent to pass an order for possession with the consent of the parties on a ground which is dehors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in the Act is a sine qua non to_ OP (RC).No.58 of 2018 13 _the exercise of jurisdiction by the Rent Control Court. Even parties cannot by their consent confer such jurisdiction on the court to do something which according to the legislative mandate, it could not do. No doubt, the court can pass an order for eviction on the basis of the compromise. But, order of eviction cannot be based merely on an agreement between the landlord and the tenant. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly agreed to suffer a decree for eviction because the landlord is entitled to have such an order under the law. In cases where protection under Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties have entered into a compromise (See Bahadur Singh V Muni Subrat Dass, Roshan Lal V. Madan Lal, Nai Bahu V. Lala Ramanaryan, Ferozi Lal Jain V. Man Mal and M/s. Alagu Pharmacy V. Magudeswari)_ 8. It is therefore, clear that unless the compromise satisfied the conditions in Section 11 of the Act, it will not be executable. The Execution Court is bound to consider the executability of the eviction order. We make it clear that the court below shall consider the legal principles in the facts and circumstances available in this case. It is also made clear that the petitioner is entitled to attack the executability of the order not only on legal grounds but also on the OP (RC).No.58 of 2018 14 alleged ground that she was not a signatory to Ext.P3 compromise. 9. The apprehension made by the learned counsel for the petitioner that before deciding the matters finally, if the 1[st] petitioner is prosecuted under Section 193 IPC, she will suffer irreparable injury. There is a valid point in this submission. Before initiating a prosecution, the court should enter a definite finding that the 1st petitioner had filed a false affidavit after considering all the matters, including the evidence. Without an enquiry on this aspect, it is not proper for the court below to jump into a conclusion that the 1[st] petitioner had filed a false affidavit. Therefore, we are of the view that Ext.P10 notice issued by the Munsiffs Court, Kalpetta is a pre-mature action under Section 340 CrPC which can be initiated only after entering a finding that a false affidavit was attempted to be tendered by a party to a proceeding. Hence we find that the proceedings under Ext.P10 notice is legally unsustainable. In the result, the original petition is allowed as follows: 10. The petitioners are permitted to challenge the maintainability of the Execution Petition on facts and law. We make no observation regarding the merit of the appeal filed at the instance of OP (RC).No.58 of 2018 15 the petitioners, pending before the Rent Control Appellate Authority. The Appellate Authority shall decide the matter in accordance with law. Till the matters are finally decided, the petitioners are not liable to be prosecuted pursuant to Ext.P10. Therefore Ext.P10 is set aside. Ext.P9 delivery order shall be held back until the matter is finally decided. **Sd/A.HARIPRASAD JUDGE** Nsd //true copy// PA to Judge **Sd/SHIRCY V. JUDGE** OP (RC).No.58 of 2018 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE BUILDING LEASE AGREEMENT DATED 5.5.2007.** - **EXHIBIT P2 A TRUE COPY OF THE E.P.1/2018 ON THE FILE OF THE MUNSIFF'S COURT, KALPETTA.** **EXHIBIT P3 A TRUE COPY OF THE COMPROMISE PETITION DATED 12.1.2015** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.1.2015 IN RCP NO 2/2012 ON THE FILE OF THE RENT CONTROLLER (MUNSIFF), KALPETTA.** - **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT & APPLICATION DATED 21.3.2018 FILED BY THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21.5.2018 PASSED IN IA 499/2018 IN RCP 2/2012 ON THE FILE OF THE MUNSIFF'S COURT, KALPETTA.** - **EXHIBIT P7 TRUE COPY OF THE MEMORANDUM OF APPEAL & AFFIDAVIT IN RCA 7/2018 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA.** - **EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 28.5.2018 IN IA 224/2018 IN RCA 7/2018.** **EXHIBIT P9 TRUE EXTRACT FROM THE E-COURT WEBSITE OF THE PROCEEDINGS IN EP 1/2018 ON THE FILE OF THE MUNSIFF'S COURT, KALPETTA DATED 8.6.2018** - **EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 24.5.2018 IN CMP 1/2018 ON THE FILE OF THE MUNSIFF'S COURT, KALPETTA.** - **EXHIBIT P11 TRUE COPY OF THE STATEMENT FILED BY THE 1ST PETITIONER IN CMP 1/2018** **EXHIBIT P12 TRUE COPY ID CARD OF THE 1ST PETITIONER IN THE INDIAN INSTITUTE OF BANKING & FINANCE. EXHIBIT P13 TRUE COPY OF THE 1ST PAGE OF THE PASSPORT OF THE 3RD PETITIONER.**