Mullol Ramachandran Vaidyar v. Vanathan Kandy Hafsath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 O.P.(RC) NO. 35 OF 2022** **AGAINST THE ORDER DATED 15.02.2022 IN I.A.NO.1 OF 2022 IN R.C.P.NO.30 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), THALASSERY** ## **PETITIONER:** **MULLOL RAMACHANDRAN VAIDYAR AGED 68 YEARS, S/O LATE POCKEN PANJAKSHARI, KADACHIRA, KADAMBOOR AMSOM, ORIKARA DESOM, KADAMBOOR VILLAGE, KADACHIRA P.O, KANNUR - 670621.** **BY ADVS. K.P.PRADEEP HAREESH M.R. SANAND RAMAKRISHNAN RASMI NAIR T. T.T.BIJU T.THASMI M.J.ANOOPA** ## **RESPONDENTS:** **1 VANATHAN KANDY HAFSATH, AGED 63 YEARS, W/O LATE N.C. AZEEZ, KUNNUMAL HOUSE, NEAR THRIKKAPALAM SIVA TEMPLE, MAVILAYIL AMSOM, MAVILAYIL DESOM, MAVILAYIL VILLAGE, P.O. KADACHIRA, KANNUR - 670621.** 2 O.P.(RC) No.35 of 2022 - **2 THASLEEMA** **AGED 40 YEARS, D/O HAFSATH, KUNNUMAL HOUSE, NEAR THRIKKAPALAM SIVA TEMPLE, MAVILAYIL AMSOM, MAVILAYIL DESOM, MAVILAYIL VILLAGE, P.O. KADACHIRA, KANNUR - 670621.** - **3 RASEENA,** **AGED 37 YEARS, D/O HAFSATH, KUNNUMAL HOUSE, NEAR THRIKKAPALAM SIVA TEMPLE, MAVILAYIL AMSOM, MAVILAYIL DESOM, MAVILAYIL VILLAGE, P.O. KADACHIRA, KANNUR - 670621.** - **4 SHABANA** **AGED 35 YEARS, D/O HAFSATH,** **KUNNUMAL HOUSE, NEAR THRIKKAPALAM SIVA TEMPLE, MAVILAYIL AMSOM, MAVILAYIL DESOM, MAVILAYIL VILLAGE, P.O. KADACHIRA, KANNUR - 670621.** **BY ADVS. S.SHANAVAS KHAN** **S.INDU** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL** **HEARING ON 16.03.2022, THE COURT ON 21.03.2022 DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.35 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner is the respondent in R.C.P.No.30 of 2017 pending before the Rent Control Court (Munsiff), Thalassery. It was filed by the respondents seeking eviction under Section 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition is now ripe for trial. The petitioner has filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India seeking to stay all further proceedings in the rent control petition till the disposal of R.F.A.No.583 of 2015 pending before this Court. The further relief prayed for is to set aside Ext.P7 order by which the Rent Control Court dismissed I.A.No.1 of 2022 in R.C.P.No.30 of 2017 filed by the petitioner seeking a similar relief. 2. On 14.02.2022, this petition was admitted and notice was ordered to be served on the respondents, through their counsel appearing in the Rent Control Court, Thalassery, where R.C.P.No.30 of 2017 is pending. A report from the Rent 4 ## O.P.(RC) No.35 of 2022 Control Court with respect to the status of I.A.No.1 of 2022 was called for and as per the report dated 15.02.2022 the Rent Control Court reported that I.A.No.1 of 2022 was already dismissed and the rent control petition was posted for trial to 02.03.2022. 3. Pursuant to notice, the respondents entered appearance through their counsel. On 02.03.2022, the petitioner filed I.A.No.1 of 2022 seeking to amend the original petition, which was allowed. The petitioner has placed on record the amended original petition. 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 5. R.C.P.No.30 of 2017 was filed by the respondents claiming that they are the landlords and seeking eviction of the petitioner under Section 11(3) of the Act on the ground that the 3rd respondent, who remains jobless, wanted to start a tailoring shop in the petition schedule building. Also, eviction under Section 11(4)(ii) of the Act was sought on the 5 O.P.(RC) No.35 of 2022 ground that the petitioner had removed one of the walls in the building, without consent or knowledge of the respondents and by such removal, the value and utility of the building was adversely affected. 6. Ext.P5 is the counter statement filed by the petitioner in R.C.P.No.30 of 2017. He took up a contention that an agreement for sale was entered into between the petitioner and the predecessor of the respondents on 05.10.2010, as per which the petition schedule building along with the appurtenant land was agreed to be sold for a sale consideration of Rs.2,60,000/- to the petitioner. A suit as O.S.No.283 of 2012 was filed by the petitioner before the Sub Court, Kannur for specific performance of that contract. That suit was decreed directing return of the advance money of RS.1,10,000/- paid by the petitioner, but the relief of specific performance of the contract was rejected. The petitioner therefore filed an appeal before this court, which is pending consideration. Among the other contentions, the petitioner, on the basis of the aforesaid facts, took a stance that he was not 6 O.P.(RC) No.35 of 2022 the tenant amenable to proceedings under Section 11 of the Act. I.A.No.1 of 2022 was filed in R.C.P.No.30 of 2017, in the above factual situation, seeking to keep in abeyance all further proceedings in the R.C.P., till the disposal of the appeal pending before this Court as R.F.A.No.583 of 2015. 7. Ext. P1 is a copy of the appeal memorandum in R.F.A.No.583 of 2015 pending consideration of this Court. The subject matter of the agreement for sale in question is the petition schedule building. In O.S.No.283 of 2012, the learned Sub Judge considered the rival contentions in detail and concluded that the plaintiff, who is the petitioner herein, was not entitled to get a decree of specific performance. A copy of the agreement is Ext.P2 and of the judgment is Ext.P3. 8. The learned counsel appearing for the petitioner would contend that in R.F.A.No.583 of 2015, the essential question to be decided is as to whether the petitioner is entitled to get a decree of specific performance and in the event of allowing that appeal, the trial in R.C.P.No.30 of 2017 before the Rent Control Court, Thalassery, will be a futile 7 ## O.P.(RC) No.35 of 2022 exercise. It is in the said circumstances, the petitioner seeks to stay the further proceedings in R.C.P.No.30 of 2017, till the disposal of R.F.A.No.583 of 2015. 9. Ext.P5 is the counter statement filed by the petitioner in R.C.P.No.30 of 2017, wherein the petitioner admitted that father of the respondents Sri.N.C.Azeez orally leased out the petition schedule building to the petitioner for a monthly rent of Rs.500/-. While he has been continuing as a tenant in the petition schedule building, Ext.P3 agreement was executed. The question is whether by the execution of Ext.P3, the landlord-tenant relationship between the petitioner and the respondents has come to an end. 10. In **Safeena Salim v. P.A.Subair [2014 (4) KLT 752]** a similar question was considered by this Court. It was held, 'The trump card plea of the tenants is that they had a contract of sale in their favour and, therefore, the landlord's right does not continue to be what it was as between the landlord and the tenants. It is submitted that, as of now, the suit for specific performance of that contract of sale is pending trial. Suffice it for us to say, 8 O.P.(RC) No.35 of 2022 that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount to create an interest in immovable property either by way of charge or otherwise. It is trite law that even such a decree or order has to undergo the process of execution or enforcement through the competent Court, resulting in transfer of property, either voluntarily or by intervention of Court. It is only then that the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property. This is the law. That being so, we are unable to conceive that merely because a tenant in possession obtains a contract of sale, there could be any transmutation of the rights and the characteristics of parties for a Court to assume that the possession of a building tenant under Act 2 of 1965 should be treated as one who has been put to be in continuing possession in part performance of the contract of sale.' ## 11. In **Andrews V.M. v. Daisy Punnan and others** ## **[2016 (2) KHC 37 : 2016 (2) KLJ 59]** this Court held, 'It is settled law that merely because the tenant entered into an agreement for sale with the landlords is not a ground to be taken to refer the parties to Civil Court as the agreement to sell will not confer any title on the tenant and the 9 O.P.(RC) No.35 of 2022 relationship between them will continue as landlord and tenant. So, on that ground the jurisdiction of the Rent Control Court is not taken away from considering the question under Section 11 of the Act. This was so held in the decisions reported in **Robert Welress v. Mammu [1985 KHC 251 : 1985 KLT 1121 : 1985 KLJ 869] and Hajira Umma v. Razak [1991 KHC 488 : 1991 (2) KLT 700 : 1992 (1) KLJ 134 : ILR 1992 (1) Ker. 537]** by two Single Benches of this Court which we feel is correct in law.' 12. In the light of the principles laid down in the above decisions, it cannot be concluded that the landlordtenant relationship ceased to exist, merely in view of Ext.P3 agreement. It may be noted that in O.S.No.283 of 2012, the Sub Court, Kannur, refused to grant a decree of specific performance. Therefore, we are unable to ascribe to the submission of the petitioner that on account of pendency of R.F.A.No.583 of 2015, the trial in R.C.P.No.30 of 2017 will be a futile exercise. It follows that it is quite inappropriate to keep the proceedings of R.C.P.No.30 of 2017 in abeyance till the final disposal of R.F.A.No.583 of 2015. The Rent Control Court can continue with the trial in R.C.P.No.30 of 2017. 10 O.P.(RC) No.35 of 2022 13. Therefore, we hold that the relief claimed in this original petition is not liable to be granted. Accordingly, we dismiss this original petition. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(RC) No.35 of 2022 ## **APPENDIX OF OP (RC) 35/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE MEMORANDUM OF REGULAR FIST APPEAL IN RFA NO. 583/2015 WHICH IS PENDING BEFORE THIS COURT.** **Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 1.2.2014 IN OS NO. 283 OF 2012 OF THE SUBORDINATE JUDGE, KANNUR.** **Exhibit P3 TRUE COPY OF THE AGREEMENT DATED 5.10.2010 EXECUTED BY N.C ASSEZ AND THE PETITIONER.** **Exhibit P4 TRUE COPY OF THE MEMORANDUM IN RCP 30 OF 2017 FILED AND PENDING BEFORE THE RENT CONTROL COURT, THALASSERY.** **Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT IN RCP NO.30 OF 2017 PENDING BEFORE THE RENT CONTROL COURT, THALASSERY.** **Exhibit P6** **TRUE COPY OF THE UNNUMBERED IA IN RCP NO.30 OF 2017 FILED AND PENDING BEFORE THE RENT CONTROL COURT, THALASSERY.** **Exhibit P7** **TRUE COPY OF THE ORDER DATED 15/2/2022 IN IA NO. 1 OF 2022 IN RCP NO 30/2017 OF THE RENT CONTROL COURT/MUNSIFF COURT, THALASSERY**