K.S. Dominic v The Alwaye Settlement

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ``` & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 8[TH]DAY OF FEBRUARY 2023 / 19TH MAGHA,1944 ``` ``` OP (RC) NO. 1 OF 2019 ``` ``` AGAINST THE INTERIM ORDER IN I.A.NO.153 OF 2018 IN RCRP 2/2014 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR ``` ``` PETITIONER: ``` ``` K.S.DOMINIC, AGED 48 YEARS, S/O SEBASTIAN, KUZHUPILLY HOUSE, RESIDING AT H.M.QUARTERS, ALUVA SETTLEMENT, U.C.COLLEGE.P.O, ALUVA, PIN-683 102. ``` ``` BY ADVS. SRI.P.VISWANATHAN (SR.) SRI.SHIBU JOSEPH SRI.SUNIL N.SHENOI SMT.NIMITHA SALIM SRI.BALRAM.S.A SRI.AJITH VISWANATHAN ``` ``` RESPONDENT: ``` ``` THE ALWAYE SETTLEMENT, REPRESENTED BY ITS MANAGER, O.U.MATHAI, AGED ABOUT 75, HILL VALLEY APARTMENT, ALUVA, PIN-683 102. ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ``` ``` THISOP(RENTCONTROL)HAVINGCOMEUPFORADMISSIONON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(RC)No.1 of 2019 2 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **------------------------------------------OP(RC) No. 1 of 2019** **-------------------------------------------** Dated this the 08[th] day of February, 2023 ## **J U D G M E N T** ## **Sophy Thomas, J.** The short question to be answered in the above Original Petition is, whether objection as to the territorial jurisdiction of a court in passing the decree can be raised for the first time in an execution petition. 2. The brief facts necessary for the Original Petition can be stated as follows, referring the parties according to their status in the RCP. 3. The landlord/petitioner initially filed O.S.No.153 of 2010 before Munsiff Court, Aluva, for evicting the respondent/tenant. The defendant/tenant entered appearance and filed written statement to the effect that the tenanted premises is situated in an area where the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as ‘The Act’) is applicable and hence the suit was not OP(RC)No.1 of 2019 3 maintainable. Then the plaintiff/landlord withdrew the suit and subsequently filed RCP No.33 of 2010 before the Rent Control Court, North Paravur, for evicting the respondent/tenant under Section 11(7) of the Act. Actually the building was situated in Aluva Village, and when the RCP was filed before the Rent Control Court, North Paravur, a wrong information was furnished that the building was situated in Karumalloor Village. The Rent Control Court, North Paravur, allowed the RCP. Subsequently the respondent/tenant preferred Rent Control Appeal before the Appellate Authority and that was also dismissed. Thereafter, the petitioner/landlord filed E.P.No.259 of 2011 for executing the eviction order in RCP No.33 of 2010. In that EP, the judgment debtor/tenant filed E.A.No.131 of 2014 for declaring the decree as a nullity, as it was obtained by fraud. He filed E.A.No.111 of 2014 and E.A.No.118 of 2014 for accepting certain documents to substantiate his claim. As per Ext.P8 order dated 13.11.2014, the execution court dismissed the petition filed by the tenant for declaring the decree as a nullity. The tenant preferred RCRP No.2 of 2014 against Ext.P8 order. That RCRP was dismissed on 02.02.2018 as per Ext.P13 order. Again the tenant preferred a review petition to review the order of dismissal of RCRP, and that also was dismissed as per Ext.P15 order. Now the tenant is challenging Exts.P8, P13 and P15 OP(RC)No.1 of 2019 4 orders in this original petition. 4. The landlord contended that the question of territorial jurisdiction was never raised by the tenant either before the trial court or before the Appellate Court and so he cannot take up such a contention in the execution court. 5. Heard learned counsel Sri.Shibu Joseph appearing for the tenant and learned counsel Sri.S.Sujin appearing for the landlord. 6. Admittedly, the tenanted premises is situated in Aluva West Village, but the Panchayat is Karumaloor. In O.S.No.153 of 2010, filed before Aluva Munsiff Court also, it was stated that the property was situated in Karumalloor Panchayat. In Ext.P8 order, the learned Rent Control Court found that the property was situated in Re.Survey No.152/3 of Aluva West Village. But as per the Act, jurisdiction of the court is conferred, based on Panchayat and not on Villages. From 11.08.1983 onwards, Karumalloor Panchayat has been notified under the Act and it was coming within the territorial jurisdiction of the Rent Control Court, North Paravur. Moreover, the tenant never challenged the description of the schedule properties except at the stage of execution. The tenant participated in the proceedings throughout, and if he had a genuine contention that the Rent Control Court, North Paravur, was lacking territorial jurisdiction to try that case, it would OP(RC)No.1 of 2019 5 have been taken at the earliest point of time and he might not have waited till execution petition is filed by the decree holder. 7. In Ext.P13 order of the Rent Control Appellate Authority in RCRP No.2 of 2014, the Appellate Authority found that the RCP was allowed without any objection of territorial jurisdiction and the RCA was dismissed, confirming the order of the Rent Control Court. Only thereafter, the landlord filed E.P.No.259 of 2011. Moreover, though the EP was filed in the year 2011, the tenant came up with a challenge of territorial jurisdiction only in the year 2014. That itself will speak about lack of _bona fides_ from his part. So, the Rent Control Appellate Authority rightly found that, if at all the Survey Number and Village were shown wrongly, no prejudice was caused to the tenant. 8. Section 21 of CPC deals with objections to jurisdiction. It says that _‘No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.’_ 9. In the case on hand, as we have seen, the question of territorial jurisdiction was never under challenge either before the Rent Control Court or before the Appellate Authority. Even after filing the OP(RC)No.1 of 2019 6 execution petition, the tenant waited for three more years to raise the question of territorial jurisdiction. Going by Section 21 of CPC, the claim of the tenant that the decree was a nullity, for want of territorial jurisdiction could not have been entertained by the execution court. So we find no illegality or impropriety in Ext.P8 order passed by the Rent Control Court. 10. The Rent Control Appellate Authority examined the challenge made against Ext.P8 also, and as per Ext.P13 order, the Appellate Authority rightly dismissed RCRP No.2 of 2014 filed by the tenant. The review petition filed by the tenant as I.A.No.153 of 2018 was also dismissed by the Rent Control Appellate Authority, as there was no scope for any review with respect to Ext.P13 order. 11. The Apex Court in **Sneh Lata Goel vs. Pushplata and Others** [(2019) 3 SCC 594] was pleased to observe that, objection to territorial jurisdiction of court cannot be raised before the executing court under Section 47 of CPC as it does not relate to the inherent jurisdiction of the court. So, such an objection had to be raised before the Court which passed the decree at the earliest possible opportunity, and if rejected, it must have been raised before the competent court in appeal. So following the dictum in **Sneh Lata Goel’s** case cited ( _Supra_ ), the challenge made by the tenant regarding OP(RC)No.1 of 2019 7 territorial jurisdiction of the court was not liable to be entertained by the executing court as it was not with respect to lack of inherent jurisdiction of the court. So, we find no illegality, irregularity or impropriety in Exts.P8, P13 and P15 orders, warranting our interference and hence, the Original Petition is liable to be dismissed. In the result, the OP(RC) is dismissed. Sd/- ## **P.B.SURESH KUMAR JUDGE** Sd/- **SOPHY THOMAS JUDGE** DSV/13.02.2023 OP(RC)No.1 of 2019 8 ## **`APPENDIX OF OP (RC) 1/2019`** ## **`PETITIONER'S EXHIBITS:`** ## **`EXHIBIT P1`** ``` THE TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.153 OF 2010 BEFORE THE MUNSIFF'S COURT, ALUVA. ``` ## **`EXHIBIT P2`** ``` THE TRUE PHOTOSTAT COPY OF E.P.NO.259 OF 2011 IN R.C.P. NO.33 OF 2010 BEFORE THE MUNSIFF'S COURT, NORTH PARAVUR. ``` - **`EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF E.A.NO.131 OF 2014 IN E.P.NO.259 OF 2011 IN R.C.P.NO.33 OF 2010 BEFORE THE MUNSIFF COURT, NORTH PARAVUR.`** - **`EXHIBIT P4`** - **`THE TRUE PHOTOSTAT COPY OF E.A.NO.111 OF 2014 IN E.P.259 OF 2011 IN R.C.P 33 OF 2010.`** - **`EXHIBIT P5 TRUE PHOTOSTAT COPY OF E.A.NO.118 OF 2014 IN E.P.259 OF 2011 IN R.C.P.33 OF 2010.`** - **`EXHIBIT P6`** - **`THE TRUE PHOTOSTAT COPY OF THE INFORMATION OBTAINED FROM ALUVA WEST VILLGE OFFICE DATED 19-05-2014.`** - **`EXHIBIT P7 THE TRUE PHOTOSTAT COPY OF THE INFORMATION OBTAINED FROM THE KARUMALLOOR VILLAGE OFFICE DATED 19-06-2014.`** - **`EXHIBIT P8 THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 13-11-2014 PASSED IN EXHIBIT P3 APPLICATION.`** ``` EXHIBIT P9 ``` - **`THE TRUE PHOTOSTAT COPY OF R.C.R.P.NO.2 OF 2014, BEFORE THE ADDITIONAL DISTRICT COURT, NORTH PARAVUR.`** ``` EXHIBIT P10THE TRUE PHOTOSTAT COPY OF I.A.NO.549 OF 2015 IN R.C.R.P.NO.2 OF 2014. ``` OP(RC)No.1 of 2019 9 ## **`EXHIBIT P11`** ``` THE TRUE PHOTOSTAT COPY OF THE INFORMATION OBTAINED FROM THE REGISTRY OF THIS HONOURABLE HIGH COURT ON 09-12-2014. ``` ``` EXHIBIT P12 ``` ``` THE TRUE PHOTOSTAT COPY OF THE INFORMATION OBTAINED FROM KARUMALLOOR GRAMA PANCHAYATH OFFICE DATED 20-11-2014. ``` ``` EXHIBIT P13 ``` ``` THE TRUE PHOTOSTAT COPY OF THE ORDER PASSED IN R.C.R.P.NO.2 OF 2014 DATED 02-02-2018. ``` ``` EXHIBIT P14THE TRUE PHOTOSTAT COPY OF I.A.NO.153 OF 2018 IN R.C.R.P.NO.2 OF 2014. ``` ``` EXHIBIT P15THE TRUE PHOTOSTAT COPY OF THE ORDER IN I.A.153 OF 2018. ``` ``` RESPONDENT'S EXHIBITS: NIL ```