K.K. Mumthaz v. K. Thahira and M. Rafeeque

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 8TH DAY OF DECEMBER 2014/17TH AGRAHAYANA, 1936 OP (RC).No. 159 of 2014 (O) ---------------------------- AGAINST THE ORDER IN I.A.1965/2014 IN RCA 170/2014 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT),THALASSERY DATED 02-12-2014 I.A.NOS.2303/2014 AND 2304/2014 IN RCP 122/2011 OF RENT CONTROL COURT (MUNSIFF COURT), THALASSERY DATED 31.10.2014 ## PETITIONER(S): PETITIONER/APPELLANT --------------------- -------------------------------- K.K. MUMTHAZ, D/O.AHAMMED AGED 45 YEARS, KADANKANDI HOUSE, BISMILLA MANZIL KADALAYI P.O., EDAKKAD AMSOM KADALAYI DESOM KANNUR DISTRICT. BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH ## RESPONDENT(S): RESPONDENTS/RESPONDENTS ----------------------- ------------------------------------------- 1. K.THAHIRA, W/O.P.M.ABDUL NAZAR, AGED 39 YEARS RESIDING AT HOUSE NO.C.P.23/279 BISMILLA QUARTERS, KANNUR CITY P.O. KANNUR DISTRICT. 2. M.RAFEEQUE, S/O.MOIDEEN, AGED 49 YEARS KADANKANDI HOUSE, BISMILLA MANZIL KADALAYI.P.O., EDAKKAD AMSOM, KADALAYI DESOM KANNUR DISTRICT. R1 BY ADV. SMT.M.M.DEEPA R BY SRI. M.M. DEEPA THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 08-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(R.C.) NO.159/2014 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF THE ORDER IN R.C.P.NO.122/2011 OF RENT CONTROL (MUNSIFF) COURT, THALASSERY. EXT.P2: TRUE COPY OF THE PETITION IN I.A.NO.2304/2014 IN R.C.P.NO.122/2011 OF RENT CONTROL (MUNSIFF) COURT, THALASSERY. - EXT.P3: TRUE COPY OF THE ORDER IN I.A.NO.2304/2014 IN R.C.P.NO.122/2011 OF RENT CONTROL (MUNSIFF) COURT, THALASSERY. - EXT.P4: TRUE COPY OF THE APPEAL MEMORANDUM IN R.C.A.NO.170/2014 FILED BEFORE THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY. - EXT.P5: TRUE COPY OF THE STAY PETITION (I.A.NO.1965/2014) FILED BEFORE THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY. - EXT.P6: TRUE COPY OF THE ORDER IN O.P.(R.C.) NO.144/2014 OF THIS HON'BLE COURT DATED 13.11.2014.. - EXT.P7: TRUE COPY OF THE ORDER IN I.A.NO.1965/2014 IN R.C.A.NO.170/2014 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 2.12.2014. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & P.D.RAJAN, JJ.** -------------------------------------- O.P.(R.C.)No.159 of 2014 -------------------------------------Dated this the 8[th] day of December, 2014 ## _**JUDGMENT**_ ## **K.T.Sankaran, J.** The petitioner, namely, K.K.Mumthaz is the wife of the second respondent (M.Rafeeque). They were residing in the house belonging to the husband (the second respondent). Mumthaz alleged domestic violence against her husband and filed M.C.No.10 of 2011 on the file of the Court of the Judicial Magistrate of the First Class, Kannur on 14.3.2011. It is alleged that the husband Rafeeque received notice in that proceeding on 17.3.2011. On 4.4.2011, Rafeeque transferred the residential property in favour of K.Thahira, the first respondent. Later, on 21.6.2011 that house was leased in O.P.(R.C.)No.159/2014 2 favour of Rafeeque by the purchaser Thahira. On 9.10.2011, Thahira filed R.C.P.No.122 of 2011 on the file of the Rent Control Court, Thalassery against Rafeeque under Section 11(2) (b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Petition was allowed on 10.4.2012. Thahira filed Execution Petition to execute the order of eviction. Amin went to the property on 4.10.2012 to effect delivery. On 15.10.2012 Mumthaz filed a claim petition before the executing court stating that the sale deed in favour of Thahira was a fraudulent one and there was collusion between Thahira and Rafeeque to defeat the rights of Mumthaz for residence in the house. The claim petition filed by Mumthaz was dismissed on 15.10.2012 and the appeal therefrom was dismissed on 4.7.2013. Though Mumthaz filed Execution Second Appeal No.16 of 2014 before the High O.P.(R.C.)No.159/2014 3 Court, that appeal was dismissed on 1.9.2014. 2. Thereafter, on 16.9.2014, Mumthaz filed an application before the Rent Control Court under Section 11(2)(c) of the Act. That application was dismissed on 31.10.2014 holding that Mumthaz has no right to make an application under Section 11(2)(c) of the Act. Mumthaz filed R.C.A.No.170 of 2014 before the Rent Control Appellate Authority, Thalassery (District Court). Mumthaz also filed an application for stay of eviction. 3. The petitioner filed O.P.(R.C.) No.144 of 2014 voicing the grievance that the Appellate Authority did not pass any order in the application for stay filed by her in R.C.A.No.170 of 2014. O.P.(R.C.) No.144 of 2014 was O.P.(R.C.)No.159/2014 4 disposed of by the judgment dated 13.11.2014 and we directed the Appellate Authority to dispose of the application for stay in R.C.A.No.170 of 2014 filed by the petitioner as expeditiously as possible and at any rate before 2.12.2014. We also directed to keep in abeyance the proceedings in execution till the disposal of the application for stay. 4. The Appellate Authority dismissed the application for stay as per a detailed order dated 2[nd] December, 2014, which is under challenge in this O.P.(R.C.). 5. The learned counsel appearing for the petitioner relied on the decision of the Supreme Court in **Achala Anand v. Appu Reddy (2005(1)KLT 904(SC))** . The learned counsel for the petitioner referred to paragraph 33 of the judgment O.P.(R.C.)No.159/2014 5 ## which reads as follows : “33. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenanthusband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold- and we do so- that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, O.P.(R.C.)No.159/2014 6 we responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wife's right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlord's right to eviction against his tenant to be subordinated to wife's right to residence enforceable against her husband. Let both the rights co-exist so long as they can.” 6. It is to be noted that in Achala Anand v. Appu Reddy (2005(1)KLT 904(SC)), the wife filed an application under Order I Rule 10 of the Code of Civil Procedure to get herself impleaded in the suit. The trial court rejected that application. The High Court allowed the revision and the wife was allowed to be brought on record as defendant No.2 in the suit. The wife contested the suit and the SLP before the O.P.(R.C.)No.159/2014 7 Supreme Court arose out of the final decision in the case. The Supreme Court dismissed the appeal filed by her. However, some time was granted to her for vacating the premises subject to certain conditions. 7. The learned counsel for the petitioner also relied on the decision in **Komalam Amma v. Kumara Pillai Raghavan Pillai and others ((2008) 14 Supreme Court Cases 345)** . In that case, the husband filed a suit against the wife and others for declaration of title and recovery of possession. The trial court as well as the appellate court decreed the suit. Before the High Court, it was contended by the wife that she has obtained a decree for maintenance and the property which is the subject matter of the suit is a charge for the same. The benefit under Section 39 of the Transfer of Property Act was also sought for O.P.(R.C.)No.159/2014 8 by the wife. The Supreme Court remanded the case to the High Court for fresh disposal. The Supreme Court confined the consideration of the case to personal law as applicable to Hindus. 8. In Achala Anand v. Appu Reddy (2005(1)KLT 904 (SC)), the Supreme Court made it clear that the decision is confined to personal law as applicable to Hindus. In that case, the wife filed an application under Order I Rule 10 of the Code of Civil Procedure and she was made a party. In Komalam Amma v. Kumara Pillai Raghavan Pillai and others ((2008) 14 Supreme Court Cases 345), the wife was a party to the suit. In the present case, the wife was not a party to the Rent Control Petition. In execution, she obstructed delivery and she filed a claim petition before the executing court. The executing court O.P.(R.C.)No.159/2014 9 considered the right, title and interest of the parties and held that the petitioner had no rights and therefore, she could not validly obstruct delivery of the building. It was also held in the Execution Second Appeal that Thahira is a bonafide purchaser and that the attempt of the petitioner herein was to protract the proceedings and to deny the fruits of the order passed by the Rent Control Court in favour of Thahira. The decisions of the Supreme Court in Achala Anand v. Appu Reddy (2005(1)KLT 904(SC)) and Komalam Amma v. Kumara Pillai Raghavan Pillai and others ((2008) 14 Supreme Court Cases 345) are clearly distinguishable on facts of the present case. In the present case, not only that the petitioner was not a party to the Rent Control Proceedings, she filed an application under Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, after a delay of 32 months from the date of order O.P.(R.C.)No.159/2014 10 of eviction. Moreover, the judgment in the Execution Second Appeal has attained finality and therefore, the petitioner is not entitled to raise any contention contrary to the findings arrived at in the Execution Second Appeal. 9. Smt.M.M.Deepa, the learned counsel appearing for the respondents, pointed out that the O.P.(R.C) was filed by the petitioner only today and it came up at 1.45 P.M.. The learned counsel submitted that in paragraph 12 of Exhibit P2 (I.A.No.2304 of 2014 in R.C.P.No.122 of 2011 - the application filed by the petitioner under Section 11(2)(c)), it is mentioned that the “petitioner is not admitting that the alleged tenancy between respondents is genuine one. The genuineness of Exhibit A1 kachit is to be decided on merit. Exhibit A1 is sham and nominal document which was never taken effect”. That O.P.(R.C.)No.159/2014 11 means even now the petitioner has not admitted the tenancy and she probably wants to cling on to the same claims which were rejected in the Execution Second Appeal. We do not find any merit in the O.P.(R.C.). The O.P.(R.C) is accordingly dismissed. **K.T.SANKARAN JUDGE** **P.D.RAJAN JUDGE** csl