Tenetowl LogoTenetowl
High Court of KeralaSingle JudgeRevision allowed; lower court's order set aside...

Mathew, S/O Michael v. James Jacob and others

Case / Petition Number:CRP.No.162 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. Somarajan
Judgment Date
2018-10-23
Court Decision / Holding
The order dismissing the execution of E.P. No. 4 of 2012 in O.S. No. 31 of 2002 is set aside. The matter is remanded to the lower court for fresh disposal in accordance with the law within three months from the receipt of a copy of this judgment, with parties to appear on 19.11.2018.
Final Disposition
Revision allowed; lower court's order set aside; remanded for fresh disposal within three months.

Parties to the Case

Appellants / Petitioners

  • Mathew, S/O Michael, Kuzhinjalli House, Kadanadu Kara, Kadanadu Village, Meenachil Taluk, doing business in Anjaly Travels Katakkayam Buildings, Pala

Respondents

  • James Jacob
  • Laiju Jameson
  • Linto Jameson
  • Kunjamma James
  • Thomas P. Thomas
  • Babu Thomas
  • Kunjamma Towers, a Partnership Firm represented by Managing Partner, James Jacob

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Mathew John (K)
  • • Sri. Domson J. Vattakuzhy

Counsels for Respondents

  • • Sri. Abraham George Jacob
  • • Sri. Jibu P. Thomas

Case Synopsis & Summary

This Kerala High Court revision arises from an order dismissing an execution petition in a suit for specific performance involving a shop room along the Pala-Erattupetta road. The decree holder, Mathew, surrendered possession pursuant to Ext. A2, under which the landlord promised to reconstruct a multi-storeyed building and allot a shop facing the road. After construction, no room was allotted, prompting a suit (O.S. No. 31 of 2002) in which a decree for specific performance was ultimately passed and became final. Execution of that decree was resisted by the tenants occupying twelve rooms, who were inducted into possession during the pendency of the suit. The execution court dismissed the petition on the ground that eviction cannot be effected without following the Kerala Buildings (Lease and Rent Control) Act, 1965 (Rent Control Act). The principal legal issue concerns whether Section 52 of the Transfer of Property Act has overriding effect over the non-obstante clause in Section 11(1) of the Rent Control Act. The High Court held that Section 52 prevails over the non-obstante clause, and the tenants who obtained leasehold rights during the pendency are bound by the decree. Consequently, the protection under Section 11(1) does not apply; the execution petition should proceed. The result is to set aside the lower court’s order and remand for fresh disposal within three months, with appearance fixed on 19.11.2018.

Provisions of Law Cited

Section 11(1) of the Kerala Rent Control Act, 1965Kerala Buildings (Lease and Rent Control) Act, 1965Section 52 of the Transfer of Property ActArticle 254(1) of the Constitution of IndiaSections 106 and 111 of the Transfer of Property Act

Legal Doctrines & Maxims

  • ut lit pendente nihil innovetur

Submissions & Arguments

Contentions of Appellants / Petitioners

The decree holder contends that Ext.A2 created a binding obligation for the landlord to reconstr uct and grant a shop room, and that the final and conclusive decree for specific performance must be given effect to. He argues that Section 52 of the Transfer of Property Act places a pendente lite transferee under the effect of the decree, and that the non-obstante clause in Section 11(1) of the Rent Control Act cannot immunize the tenants from eviction in execution of the decree. Citing Article 254(1) of the Constitution and relevant precedents, he maintains that the central law can prevail over state Rent Control provisions when applicable in pending litigation, and that eviction of the tenants is legally permissible despite Rent Control protections.

Contentions of Respondents

The respondents contend that eviction is controlled by the Rent Control Act and that Section 11(1) provides an overriding non-obstante clause, prohibiting eviction except under the Act. They rely on the Rent Control framework and the protections it affords to tenants, arguing that the pendente lite transfer cannot defeat their statutory rights. The non-obstante clause should be read as exhaustive, shielding tenants from eviction during pendency unless the Act itself allows it. They urge adherence to the decision of the execution court and insist that Section 52 cannot override the explicit protections provided by the Rent Control legislation.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Leelabai Gajanan Pansare and Others v. Oriental Insurance Co. Ltd. and Others(2008 KHC 5010: (2008) 9 SCC 720)PositiveCited to support that central Rent Control considerations and the concurrent list status validate the Rent Control Act and its applicability in this context.
Welfare Association, A.R.P. Maharashtra v. Ranjith P. Gohil(2003 KHC 276: (2003) 9 SCC 358)PositiveCited to illustrate that central Acts prevail over state legislation in the constitutional framework, reinforcing the stance on central Act primacy in rent-related matters.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Mathew, S/O Michael v. James Jacob and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.SOMARAJAN** **TUESDAY,THE 23RD DAY OF OCTOBER 2018/1ST KARTHIKA, 1940** **CRP.No.162 of 2017** **AGAINST THE ORDER DATED 14-03-2017 IN EP.NO.4/2012 IN OS NO.31/2002 OF SUB COURT, PALA** ## **REVISION PETITIONER:** **MATHEW,S/O. MICHAEL, KUZHINJALI HOUSE, KADANADU KARA, KADANADU VILLAGE, MEENACHIL TALUK, DOING BUSINESS IN THE ADDRESS ANJALY TRAVELS KATTAKKAYAM BUILDINGS, PALA.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS:** - **1 JAMES JACOB, S/O. CHACKO, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK-686589** - **2 LAIJU JAMESON, S/O. JAMES JACOB, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE,MEENACHIL TALUK-686589** - **3 LINTO JAMESON, S/O.JAMES JACOB, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE,MEENACHIL TALUK-686589** - **4 KUNJAMMA JAMES, D/O. THOMAS, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK-686589** - **5 THOMAS.P.THOMAS, S/O. THOMAS, PARAVANPARAMBIL HOUSE, NADACKAL, ERATTUPETTA-686001** C.R.P.No.162 of 2017 - :: 2 :: - **6 BABU THOMAS, S/O.THOMAS, PARAVANPARAMBIL HOUSE, NADACKAL, ERATTUPETTA-686001** - **7 KUNJAMMA TOWERS, A PARTNERSHIP FIRM REPRESENTED BY MANAGING PARTNER, JAMES JACOB, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY-686575 R2 TO R6 BY ADVS. SRI.ABRAHAM GEORGE JACOB SRI.JIBU P THOMAS** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** C.R.P.No.162 of 2017 :: 3 :: **==> picture [37 x 10] intentionally omitted <==** ## **O R D E R** Against the order of dismissal of E.P.No.4 of 2012 in O.S.No.31 of 2002, dated 14.3.2017, of the Court of Sub Judge, Pala, the petitioner/decree holder came up with this Revision. 2. The petitioner who was the tenant occupying a shop room in the ground floor facing towards Pala-Erattupetta road, surrendered vacant possession to the landlord on executing Ext.A2 agreement, by which the landlord agreed to provide a shop room facing the said road after reconstruction. But, after the reconstruction of a multi storeyed building facing towards PalaErattupetta road, no room was given to the petitioner/decree holder as agreed, which has necessitated institution of a suit in O.S.No.31 of 2002 and ultimately a decree for specific performance of Ext.A2 agreement was passed. Both the parties fairly conceded that the decree has C.R.P.No.162 of 2017 :: 4 :: become final and conclusive. The decree was put in execution, but the execution court dismissed the same holding that the tenants who were inducted into the shop rooms cannot be evicted without resorting to the remedies provided under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Rent Control Act'). The abovesaid order is under challenge in this Revision. 3. Admittedly, all the tenants who were in occupation of twelve rooms facing towards PalaErattupetta road were given on lease during the pendency of the suit, subsequent to Ext.A2 agreement. The execution court dismissed the execution of the decree on the reason that since there is a non-obstante clause under Section 11 of the Act, the tenants who were inducted into possession can only be evicted in accordance with the provisions contained in the Act. So, the question came up for consideration is whether S.52 of the Transfer of Property Act has got overriding C.R.P.No.162 of 2017 :: 5 :: effect over the non-obstante clause in Section 11(1) of the Rent Control Act. The issue can be answered only by answering the abovesaid question. Section 11(1) of the Rent Control Act is extracted below for reference: “11. Eviction of tenants.-- (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act:” (emphasis supplied) 4. Section 11 starts with a non-obstante clause which gives an overriding effect over other laws and agreements and even decrees in the matter of eviction of tenants either in execution or otherwise. It is by virtue of the non-obstante clause in Section 11 of the Rent Control Act the matters which would otherwise govern by Sections 106 and 111 of the Transfer of Property Act brought under the Rent Control Legislation viz. the Kerala Buildings (Lease and Rent Control) Act, C.R.P.No.162 of 2017 :: 6 :: 1965 and the constitutional validity of the Rent Control Legislation was upheld by the Apex Court being the same a subject that comes in concurrent list of the Constitution as item No.6 in the Third Schedule in _Leelabai Gajanan Pansare and Others v. Oriental Insurance Co. Ltd. and Others (2008 KHC 5010: (2008) 9 SCC 720) and Welfare Association,_ _A.R.P. Maharashtra v. Ranjith P. Gohil (2003 KHC 276: (2003) 9 SCC 358_ ). The wording used in Section 11(1) “notwithstanding anything contained in any other law” and the wording “in execution of decree or otherwise” gives an exhaustive nature to the non-obstante clause overriding any other law for the time being in force or any decree put in execution, but by virtue of Article 254(1)of the Constitution of India certain Central Act will prevail over the State Legislation viz. the Rent Control Act. Section 52 of the Transfer of Property Act and the principles behind it resting on the maxim “ _ut lite pendente nihil innovetur_ ” imposes a prohibition on transfer or otherwise dealing with any property during the pendency of a ## C.R.P.No.162 of 2017 :: 7 :: suit, provided that the conditions laid down in the Section are satisfied. It is based on equity and good conscience and it would prevail over any provision as the principle embedded are not amenable for any dilution. A transferee pendente lite is bound by the decree just as much as he was a party to the suit and the transfer, if any, made neither be illegal nor be void ab initio but remains subservient to the right eventually determined by court in pending litigation. In short, Section 52 of the Transfer of Property Act will prevail over the non-obstante clause in Section 11 of the Rent Control Act and as such the tenants who obtained leasehold right over the property during the lease are bound by the decree. The protection under the non-obstante clause in Section 11(1) of the Rent Control Act will not come into play. 5. The execution petition was rejected without any sufficient ground and hence the order of the lower court is liable to be set aside. C.R.P.No.162 of 2017 :: 8 :: The order dismissing the execution application is hereby set aside. The matter is remanded back to the lower court for fresh disposal in accordance with the law in force. The lower court shall dispose of the matter within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the lower court on 19.11.2018. **Sd/-** **P.SOMARAJAN** **JUDGE** ahz/