Madayyi Syamala and Sreena v. Sudha Sundareswaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935** ## **OP (RC).No. 2625 of 2013 (O)** **-----------------------------------------** **PETITIONERS:** **---------------------** ## **1. MADAYI SYAMALA,** **W/O.LATE MADAYI SREENIVASAN,AGED 63, RESIDING AT C/O.DR.BABURAJ, 13/101, NEAR GOVERNMENT DISTRICT HOSPITAL, VATAKARA, VATAKARA AMSOM, DESOM, KOYILANDY TALUK.** ## **2. SREENA,** **D/O.LATE MADAYI SREENIVASAN & W/O.DR.BABURAJ, AGED 33, RESIDING AT C/O.DR.BABURAJ, 13/101, NEAR GOVERNMENT DISTRICT HOSPITAL, VATAKARA, VATAKARA AMSOM, DESOM, KOYILANDY TALUK.** **BY ADVS.SRI.P.B.KRISHNAN, SMT.GEETHA P.MENON, SRI.N.AJITH, SRI.P.M.NEELAKANDAN, SRI.P.B.SUBRAMANYAN.** **RESPONDENTS:** **------------------------** ## **1. SUDHA SUNDARESWARAN,** **W/O.LATE SUNDARESWARAN, AGED 52, GAYATHRI BUILDING, PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 620.** ## **2. SREEDEVI,** **D/O.LATE SUNDARESWARAN, AGED ABOUT 27, GAYATHRI BUILDING, PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 620.** ## **3. SOUNDARYA,** - **D/O.LATE SUNDARESWARAN,AGED 22,GAYATHRI BUILDING, PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 620.** **Prv.** ## **O.P.(RC).NO.2625/2013-O:** ## **4. HAYAGREEVA SUNDARESWARAN, AGED ABOUT 17 (MINOR),** **REPRESENTED BY MOTHER AND NEXT FRIEND SUDHA SUNDARESWARAN, W/O.LATE SUNDARESWARAN, GAYATHRI BUILDING, PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 620.** ## **5. SREESH,** **S/O.SREENIVASAN, AGED 43, LAKSHMI, KATCHERI AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 502.** ## **6. SREENISH,** **S/O.SREENIVASAN,AGED 40, LAKSHMI, KATCHERI AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 502.** **R1 TO R4 BY ADVS. SRI.V.V.SURENDRAN, SRI.P.A.HARISH.** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 22-11-2013, THE COURT ON 03-12-2013 DELIVERED THE FOLLOWING:** **Prv.** **O.P.(RC).NO.2625/2013-O:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: COPY OF R.C.P.NO.53 OF 2007, RENT CONTROL COURT (PRL.MUNSIFF-I), KOZHIKODE DATED 30.3.2007.** - **EXHIBIT P2: COPY OF THE EVIDENCE OF PW-2 IN R.C.P.NO.53 OF 2007, RENT CONTROL COURT (PRL.MUNSIFF-I), KOZHIKODE DATED NIL.** **EXHIBIT P3: COPY OF THE ORDER IN R.C.P.NO.53 OF 2007, RENT CONTROL COURT (PRL.MUNSIFF-I), KOZHIKODE DATED 30.3.2009.** **EXHIBIT P4: COPY OF THE JUDGMENT IN R.C.A.NO.65 OF 2009, RENT CONTROL APPELLATE AUTHORITY/DIST.JUDGE, KOZHIKODE DATED 17-10-2011.** **EXHIBIT P5: COPY OF THE ORDER IN R.C.R.NO.10 OF 2012 OF THIS HON'BLE COURT DATED 16.3.2012.** - **EXHIBIT P6: COPY OF THE APPLICATION, E.A.NO.133 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 17.6.2013.** - **EXHIBIT P7: COPY OF THE APPLICATION, E.A.NO.172 OF 2013 IN E.A.NO.133 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED DATED 15.7.2013.** - **EXHIBIT P8: COPY OF THE APPLICATION, E.A.NO.189 OF 2013 IN E.A.NO.133 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 19.7.2013.** - **EXHIBIT P9: COPY OF THE COUNTER-AFFIDAVIT TO E.A.NO.133 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 17.7.2013.** **EXHIBIT P10: COPY OF THE COUNTER-AFFIDAVIT TO E.A.NO.189 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 24.7.2013.** - **EXHIBIT P11: COPY OF THE ORDER IN E.A.NO.172 OF 2013 IN E.A.NO.133 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 18-7-2013.** **EXHIBIT P12: COPY OF THE ORDER IN E.A.NO.189 OF 2013 IN E.A.NO.133 OF 2013 IN E.P.NO.183 OF 2012 IN R.C.P.NO.53 OF 2007, PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 25.7.2013.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **O.P.(R.C.) No. 2625 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 3RD DAY OF DECEMBER, 2013** ## **JUDGMENT** ## Ramachandran Nair, J. The petitioners are aggrieved by Exts.P11 and P12 orders passed by the Principal Munsiff, Kozhikode. As per Ext.P11, the prayer of the petitioners to cause production of certain documents, has been rejected and by Ext.P12 the prayer of the petitioners seeking permission to serve interrogatories has also been rejected. 2. The matter arises from a claim petition filed by the petitioners as E.A. No.133/2013 in E.P.No.183/2012 in R.C.P.No.53/2007. In the said petition they have sought for a declaration that the orders passed in R.C.P.No.53/2007 without impleading them is void and for other reliefs. 3. The pleadings in the original petition will show that the petitioners herein are respectively the mother and sister of respondents 5 and 6 who, according to them, alone were included in the party array by the landlord. The premises were taken on rent by the deceased husband of the first petitioner. They have alleged that the non impleadment of the OP (RC) No.2625/2013 -2- petitioners herein is purposeful and further it is also alleged herein, in the original petition that the landlord has obtained an order of eviction by playing fraud on the court. 4. We heard learned counsel for the petitioners, Shri P.B. Krishnan and Shri P.A. Harish, learned counsel for respondents 1 to 4. 5. It is submitted by the learned counsel for the petitioners that the learned Munsiff was not right in rejecting the prayers of the petitioners. E.A. No.172/2013 was filed for production of documents relating to the details of employment of Sreedevi Sundareswaran (P.W.2 in R.C.P.No.53/2007) for whose purpose the eviction was sought. According to the learned counsel for the petitioners, the bonafide requirement shown is to start a nursery after stating that she is unemployed. But the petitioners could obtain information that from 2006 itself she was employed in I.B.M., Bangalore as Deputy Manager. Therefore, without disclosing the same, the Rent Control Petition was filed and orders have been obtained. Accordingly, learned counsel submitted that fraud has been played by the landlord and the order of eviction is liable to be set aside. 6. In support of the above plea, learned counsel for the petitioners OP (RC) No.2625/2013 -3- relied upon the judgment of the Apex Court in **Hamza Haji v. State of Kerala** (2006 (3) KLT 941 - SC). It is further submitted that as per E.A.No.189/2013, the petitioners sought permission to serve interrogatories and with respect to both the applications, the landlord has chosen only to file formal counter affidavits. For elaborating his contentions, learned counsel relied upon para 15 of the judgment in **Hamza Haji's case** (2006 (3) KLT 941 - SC). According to the learned counsel, fraud vitiates the entire proceedings and a party can raise the same even in collateral proceedings and wherever and whenever the order is sought to be enforced. 7. A reading of the judgment in **Hamza Haji's case** (supra) will show that the Apex Court has held that “ it is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud. The jurisdiction of the court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree. OP (RC) No.2625/2013 -4- It is settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and _non est_ in the eyes of law.” It is therefore submitted that the court below has erred in dismissing the applications. 8. These arguments have been met by the learned counsel for respondents 1 to 4, Shri P.A. Harish by pointing out that in the claim petition there is no allegation of commission of fraud and therefore the whole argument raised before this Court will have to be rejected. The evidence in the petition is over and there is no whisper about any fraud in the oral evidence also. It is submitted that there are no bonafides in filing the claim petition by the mother and sister of respondents 5 and 6. Learned counsel submitted that after the death of the husband of the first petitioner, the business was being run by respondents 5 and 6 initially and the fifth respondent later obtained a job. The licence of the business was transferred in favour of the sixth respondent with the consent of the petitioners. Therefore, the alleged plea of non impleadment of the petitioners itself will have to fail, as there was proper representation. It is therefore submitted that the alleged non-impleadment of the petitioners is immaterial. It is also submitted that while disposing of the revision petition by this Court by OP (RC) No.2625/2013 -5- Ext.P5 order, 15 months time was granted on certain conditions, by which the tenants had to surrender the building. But without surrendering the key to the court, clandestinely they have caused filing of the claim petition through the mother and sister. Learned counsel further submitted that in the chief affidavit filed before the Executing Court, the first petitioner has not raised any allegation of commission of fraud in obtaining the eviction order. In the cross examination also no such pleas have been made. It is submitted that in cross examination the first petitioner has clearly admitted that the licence was transferred in favour of the sixth respondent who was conducting the business. Learned counsel further submitted that the premises is not at all being used by anybody and waste materials have been dumped there for some time. It is submitted that the orders passed cannot be said to be illegal on any account as the prayer of the petitioners to reopen the finding under Section 11(3) of the Act has been rightly rejected. 9. In Ext.P11 order, after noting that the matter was settled by this Court, the view taken is that the said issue cannot be reopened to ascertain the bonafides and genuineness of the need. It is seen that after passing of Ext.P9 order, E.A.No.189/2013 was filed which was also rejected by OP (RC) No.2625/2013 -6- Ext.P12 wherein also it is noted that the said application is also filed for the same purpose, viz. to get the employment details of the grand-daughter of the landlord. 10. We have perused the averments in the claim petition, a copy of which is produced as Ext.P6. A reading of the same will show that the petitioners have not raised any allegation that the order in the Rent Control Petition has been obtained by fraud and on that ground the order will have to be set aside. What is alleged is only that it may be due to collusion that the petitioners were not impleaded before the Rent Control Court. Therefore, learned counsel for the respondents is right in submitting that there is no allegation of fraud, going by Ext.P6. We have gone through the chief affidavit filed by the first petitioner wherein also no such allegations have been made. 11. In **Hamza Haji's case** (supra), the Apex Court considered the matter in the review petition filed by the State, wherein a specific allegation of fraud was raised and it is in that circumstance the relevant principles were declared by the Apex Court. 12. It is well settled that when fraud is alleged, the party alleging the OP (RC) No.2625/2013 -7- same will have to plead the same properly by giving the particulars. Therefore, in the absence of such a plea, the court below cannot be found fault for dismissing the two applications by Exts.P11 and P12 orders. The view taken by the learned Munsiff is that the point in issue to be decided in the claim petition is whether there is representation of the heirs of the original tenant. In fact, that is the plea raised in the said application which is clear from a reading of Ext.P6. In that view of the matter, we find no reason to interfere with the orders impugned and the original petition is dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(B. KEMAL PASHA, JUDGE)** **kav/**