O.P.(RC) No.17 of 2023

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 OP (RC) NO. 17 OF 2023** **AGAINST THE ORDER DATED 12.01.2023 AND PASSED BY THE RENT CONTROLLER (MUNSIFF) COURT, KOYILANDY IN EP NO.99 OF 2018 IN RCP No.58 of 2014** ## **PETITIONER:** **VASANTHA AGED 52 YEARS, W/O.RAGHU, D/O ARUMA, SWASTHAM, RESIDING AT KOTTAPPURATH, SAGARA HOUSE, NADUVANNUR AMSOM DESOM, KOYILANDY TALUK, P.O. NADUVANNUR, KOZHIKODE DISTRICT, KERALA 673 614(WRONGLY ENTERED IN THE RCP AS) VASANTHA, D/O. GOPALAN, AAMAYATTU MEETHAL SWASTHAM, NADUVANNUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA,** **BY ADVS. ABRAHAM MATHEW (VETTOOR) ANIL ABEY JOSE VISHNUJA P.M.** ## **RESPONDENTS:** **SAHADUDHIN AGED 57 YEARS, S/O. MAMMAD KOYA, AGED 57 YEARS, ATHIKKAVEETIL, NAGARAM AMSOM DESOM, CALICUT, KOZHIKODE DISTRICT, KERALA -673001** **BY ADVS. I.DINESH MENON . L.RAJESH NARAYAN(K/372/2003)** 2 O.P.(RC) No.17 of 2023 **SRI I.DINESH MENON , SRI L.RAJESH NARAYAN - FOR RESPONDENT** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.17 of 2023 ## **J U D G M E N T** ## P.G.Ajithkumar, J. Respondent - tenant in R.C.P No.58 of 2014 has filed this original petition under Article 227 of the Constitution of India. She seeks to set aside Ext.P10 order of delivery dated 12.01.203 in E.P.No.99 of 2018 in R.C.P No.58 of 2014 of the Munsiff, Koyilandi. Ext.P10 originally produced is a copy of the daily proceedings obtained from the e-court services, but it was later substituted by a certified copy. 2. On 19.01.2023, notice was directed to be served on the respondent. Also, an order of interim stay directing to keep in abeyance all proceedings in E.P.No.99 of 2018 in R.C.P No.58 of 2014 was granted. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. R.C.P No.58 of 2014 was filed by the respondent for an order of eviction on the ground of bonafide need for 4 O.P.(RC) No.17 of 2023 own occupation. An ex parte order of eviction was granted by the Rent Control Court on 13.07.2015 directing the petitioner to surrender vacant possession of the petition schedule building within a period of two months from the date of that order. The petitioner would contend that only on getting notice in the execution petition, he came to know about the ex parte order and immediately she filed petitions for setting aside the ex parte order of eviction and to condone the delay of 1549 days in filing the former petition. Those petitions were dismissed on 28.10.2021. Ext.P6(a) is a copy of the said order. Challenging that order the petitioner filed R.C.A No.21 of 2022. Petitioner filed I.A No.2 of 2022 in that appeal seeking stay of execution proceedings in EP No.99 of 2018 and the appellate authority granted a stay as per Ext P9 order dated 07.03.2022. 5. The petitioner would contend that in the meanwhile, the respondent filed OP(RC) No.26 of 2022 before this Court seeking an order directing the Execution Court to expedite the proceedings in E.P. No.99 of 2018. This Court as 5 O.P.(RC) No.17 of 2023 per Ext.P6 judgment allowed OP(RC)No.26 of 2022 by dispensing with notice to the petitioner herein, who was the respondent in that original petition and directed the Munsiff Court, Koyilandy to finally dispose of E.P No.99 of 2018 in R.C.P No.58 of 2014, within a period of one month from the date of production of a certified copy of the judgment. 6. The petitioner would allege in this original petition that the respondent having sufficient knowledge about the order of stay granted by the Appellate Authority insisted the Execution Court to expedite the proceedings in E.P No.99 of 2018 pointing out the directions contained in Ext.P6 judgment. It is also alleged that the respondent had filed O.P. (RC) No.26 of 2022 without disclosing anything about his filing objections to Exts.P4 and P5 applications or the orders thereon. That resulted in two conflicting orders, one by this Court directing expeditious disposal of E.P No.99 of 2018 and the other by the Appellate Authority staying the proceedings in E.P No.99 of 2018. Finding it difficult to proceed further, the Execution Court addressed the Appellate Authority for a 6 O.P.(RC) No.17 of 2023 direction. It is seen from Ext.P10 that the Appellate Authority directed the Execution Court to proceed with the execution proceedings in E.P.No.99 of 2018 in the wake of the direction of this Court in Ext.P6 judgment despite there having an order staying the proceedings in the said execution petition. Such a precarious situation had occurred only for the reason that the respondent failed to mention anything about Ext.P4 and P5 petitions in O.P.(RC) No.26 of 2022. 7. The learned counsel appearing for the respondent would submit that such an omission occurred in the petition in O.P(RC) No.26 of 2022 quite inadvertently and due to lack of communication. 8. As stated by Scrutton, L.J, in **R. v** . **Kensington Income Tax Commissioners [(1917) 1 K.B. 486]** , an applicant who does not come with candid facts and ‘clean breast’ cannot hold a writ of the court with ‘soiled hands’. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and 7 O.P.(RC) No.17 of 2023 prerogative jurisdiction. 9. In **Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449]** the Apex Court reiterated that a prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppress relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. This rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 10. In **Prestige Lights Limited [(2007) 8 SCC 449]** the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising 8 O.P.(RC) No.17 of 2023 discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain the petition and dismiss it without entering into the merits of the matter. 11. In **Usha Nanthini v. Regional Transport Authority, Palakkad [2018 (2) KHC 89]** , a decision rendered by one among us [Anil K. Narendran, J.], it was held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India by suppressing material facts and making false statements, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately. In such cases, this Court has ample power to decline the permission sought for withdrawal of the writ petition. Dismissal of such writ petitions imposing exemplary 9 ## O.P.(RC) No.17 of 2023 costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. The law laid down in **Usha Nanthini [2018 (2) KHC 89]** has been affirmed by a Division Bench of this Court in the judgment dated 21.02.2018 in W.A.No.455 of 2018. See: **Usha Nanthini v. Regional Transport Authority, Palakkad [2018/KER/8915]** . 12. Above are the principle followed in the context of Article 226 of the Constitution of India. The same are equally applicable to the proceedings under Article 227 of the Constitution of India. Non disclosure of essential facts in the petition need be viewed seriously. However, considering the submission of the learned counsel for the respondent that the omission was not at all willful, we refrain from making any further comments on it. 13. The learned counsel appearing for the respondent would submit that R.C.A No.21 of 2022 filed by the petitioner was already dismissed by the Appellate Authority. The learned 10 O.P.(RC) No.17 of 2023 Counsel appearing for the petitioner conceded that fact. When R.C.A No.21 of 2022 is dismissed, there is no bar against preceeding further with E.P. No.99 of 2018, of course, if there is no other legal impediment. 14. Ext.P10, order of delivery was passed by the Execution Court while the proceedings in the Execution Petition stood stayed by the Appellate Authority. The direction in Ext.P6 to dispose of E.P No.99 of 2018 was issued by this Court on the impression that there was no legal bar for proceeding with the execution proceedings. Either the Appellate Authority or the Execution Court should have reported the matter to this Court, so that Ext.P10 order, which is derogant of the order of stay, could have been avoided. Taking into account those circumstances, we are of the view that Ext.P10 is liable to be set aside. However, having R.C.A No.21 of 2022 been dismissed, the Execution Court can proceed with the execution proceedings, in accordance with law. Accordingly, this original petition is allowed as above. 11 O.P.(RC) No.17 of 2023 The execution Court (Munsiff Court, Koyilandi) is directed to proceed with E.P. No.99 of 2018 in R.C.P No.58 of 2014 in accordance with law. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV 12 O.P.(RC) No.17 of 2023 ## **APPENDIX OF OP (RC) 17/2023 PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE PETITION IN RCP NO. 58/2014 OF THE HON'BLE RENT CONTROL COURT (MUNSIFF), KOYILANDY DATED 1012-2014.** - **Exhibit P2 A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE RENT CONTROL COURT (MUNSIFF), KOYILANDY DATED 13-07-2015** - **Exhibit P3** - **A TRUE COPY OF THE EP. NO.99/2018 FILED IN RCP NO. 58/2014 OF THE HON'BLE RENT CONTROL COURT (MUNSIFF), KOYILANDY DATED 06-12-2018** - **Exhibit P4 A TRUE COPY OF THE IA 1263/2019 FOR SETTING ASIDE THE EX PARTE ORDER ALONG WITH THE SUPPORTING AFFIDAVIT DATED 25-10-2019** - **Exhibit P5 A TRUE COPY OF THE IA 1262/2019 FOR CONDONATION OF DELAY ALONG WITH THE SUPPORTING AFFIDAVIT DATED 25-10-2019** - **Exhibit P6 A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN OP(RC) NO.26/2022 DATED 02-04-2022** - **Exhibit P6A A TRUE COPY OF THE COMMON ORDER PASSED BY THE HON'BLE RCP IN IA NOS. 1262 OF 2019 AND 1263 OF 2019 IN RCP NO. 58 OF 2014 DATED 28-10-2021** - **Exhibit P7 A TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 15-12-2021** - **Exhibit P8 A TRUE COPY OF THE IA 2/2022 SEEKING TO STAY ALL FURTHER PROCEEDINGS IN EP.99/2018 DATED 31-12-2021** 13 O.P.(RC) No.17 of 2023 **Exhibit P9 A TRUE COPY OF THE ORDER IN IA 2/2022 IN RCA 21/2022 DATED 07-03-2022 Exhibit P10 A TRUE COPY OF THE DAILY STATUS REPORT DATED 12-01-2023**