Puthiya Maliyakkal Minaver v. T.P. Ramla

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA,** **1944** **RCREV. NO. 427 OF 2019** **AGAINST THE ORDER IN RCP NO.111/2015 OF ADDITIONAL MUNSIFF** **COURT, KOZHIKODE-I** **R.C.A.NO.10/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE / III ADDITIONAL MACT, KOZHIKODE** **-----** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **PUTHIYA MALIYAKKAL MINAVER, AGED 57 YEARS, S/O.KOYASSAN KOYA, PUTHIMALIYAKKAL HOUSE,** **PANNIYANKARA AMSOM, DESOM, KOZHIKODE, PIN-673003.** **BY ADV E.NARAYANAN** ## **RESPONDENT/S:** **T.P.RAMLA, W/O. ABDULLA, 'SAJNAS', AGED 47 YEARS, PANNIYANKARA AMSOM DESOM, KOZHIKODE, PIN-673003.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH R.C.Rev.NO.166/2021 & R.C.Rev.No.168/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** : RCRev. No.427/2019 & conn.cases 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA,** **1944** **RCREV. NO. 166 OF 2021 AGAINST THE JUDGMENT IN R.C.A.NO.83/2019 OF ADDITIONAL** **DISTRICT COURT, KOZHIKODE- II** **IA 866/2017 IN RCP 111/2015 OF ADDITIONAL MUNSIFF COURT,** ## **KOZHIKODE-I** ## **REVISION PETITIONER/APPELLANT/RESPONDENT/PETITIONER:** **PUTHIYA MALIYAKKAL MINAVER, AGED 59 YEARS, S/O.KOYASSAN KOYA, PUTHIMALIYAKKAL HOUSE, PANNIYANKARA AMSOM DESOM, KOZHIKODE-673003.** **BY ADV.E.NARAYANAN** ## **RESPONDENT/S:** **T.P.RAMLA, W/O.ABDUL RAZACK, AGED 51 YEARS, D/O.ABDULLA,'SAJNAS', MARATHPARAMBA, P.O.KALLAI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE-1, PIN-673003.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH RCRev..427/2019 & R.C.Rev.No.168/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev. No.427/2019 & conn.cases 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA,** **1944** **RCREV. NO. 168 OF 2021** **AGAINST THE JUDGMENT IN R.C.A.NO.84/2019 OF ADDITIONAL** **DISTRICT COURT KOZHIKODE- II** **I.A.NO.867/2017 IN R.C.P.NO.111/2015 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-I** ## **REVISION PETITIONER/APPELLANT/RESPONDENT/PETITIONER:** **PUTHIYA MALIYAKKAL MINAVER, AGED 59 YEARS, S/O. KOYASSAN KOYA, PUTHIMALIYAKKAL HOUSE, PANNIYANKARA AMSOM DESOM, KOZHIKODE-673003.** **BY ADV.E.NARAYANAN** ## **RESPONDENT/PETITIONER:** **T.P.RAMLA, AGED 53 YEARS, W/O.ABDUL RAZACK, D/O.ABDULLA, SAJNAS, MARATHPARAMBA, P.O.KALLAI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE--673003.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH RCRev.No.427/2019 & R.C.Rev.No.166/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev. No.427/2019 & conn.cases 4 ## **ORDER** **[RCRev.Nos.427/2019, 166/2021, 168/2021]** ## A.Muhamed Mustaque, J. The simple issue that has to be considered by this Court is whether the tenant is entitled to seek restitution consequent upon setting aside the _ex parte_ order of eviction. 2. The brief facts are as follows: The landlord obtained an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 as _ex parte_ . The order of eviction was passed on 14.3.2016, The tenant claimed that she paid rent upto January, 2017. This fact has been denied by the landlord. Notice to the tenant was served on the premises by affixture. The tenant came to know about the _ex parte_ order when delivery was effected on 22.2.2017. Immediately on 25.2.2017, she filed an RCRev. No.427/2019 & conn.cases 5 application to _set aside_ the order. She also filed an application to set aside the ex parte order in execution. Those applications were dismissed. However, her application to set aside the _ex parte_ order was allowed on payment of costs on 29.03.2017. An application for restitution was filed. That application has already been allowed. In the appeals, the Appellate Authority affirmed the orders of the Rent Controller. In these three separate Rent Control Revisions, the landlord is challenging the order in an application for condonation of delay, the order allowing the application to set aside the _ex parte_ order and also an order allowing the application for restitution. 3. Notice was served by affixture. The tenant was not aware of the proceedings before the Rent Controller. It appears that the shop rooms were closed. Notice was served in the address shown in the rent deed which was the residential building, RCRev. No.427/2019 & conn.cases 6 not in the address of the tenanted premises. The landlord's case is that he was not aware of the change of address. Anyway, the court below concurrently found that there was sufficient reason to condone the delay and _set aside_ the _ex parte_ order. It is also noticed that the tenant paid rent even after the order of eviction was passed and the landlord acknowledged the same. In such circumstances, we find no reason to interfere with the impugned orders. 4. However, the learned counsel for the revision petitioner vehemently argued in the matter, contending that after the possession has been handed over to him there is a determination of the lease and therefore, the Rent Control Court has no jurisdiction to entertain an application under Section 144 of the Code of Civil Procedure for restitution. It is further argued that Section 144 of the Code of Civil Procedure is not applicable. It is also argued that the remedy of RCRev. No.427/2019 & conn.cases 7 the tenant who is aggrieved by the delivery order in execution is subject those orders in a revision as contemplated under Section 14 of the Act. 5. The Rent Controller and the Appellate Authority exercised the power of the civil court and have all trappings of the civil court while exercising those powers. The Apex Court in **Mukri Gopalan v.Cheppilat Puthanpurayil (AIR 1995 SC** **2272)** and the full bench of this Court in **K.K. Hamsa v. Athikottu Snehaletha [AIR 2021 Ker.17]** held that the Rent Control Court is deemed to be a civil court. 6. This Court in **T.V.Krishna Iyer v.Abdul** **Rasheed [2015 (1) KLT 511]** has held that the Rent Control Court has inherent power like the civil court. The Rent Controller no longer can be treated as _persona designata_ in the light of aforesaid judgments. There is no necessity under law that the specific power shall be conferred on a court. The inherent powers can be invoked where RCRev. No.427/2019 & conn.cases 8 the alternative remedies do not exist. Those inherent powers are essentially in the nature of supplemental power to the main power exercised by the court or the Tribunal. ## 7. This Court in **Moosa v. Jyothi [2000 (3) KLT** **416]** had held that the Rent Control Court has power to invoke restitution under Section 144 of the Civil Procedure Code. If the court has the power to do certain things, it also has to be presumed that it has the power to undo them. If the court has the power to pass an _ex parte_ order, it has also the power to set aside the _ex parte_ order. In view of the above, we have no hesitation to hold that the Rent Controller has power to order restitution, even though it is not specifically conferred on it. 8. Coming back to the point raised by the learned counsel for the revision petitioner, on a determination of the lease, there is nothing remain in law to hold the status of the landlord RCRev. No.427/2019 & conn.cases 9 and the tenant, we are of the view that the determination of the lease happened through the process of the law and by exercising the power of the court. If that court exercised the power to determine the lease, the same court can reverse that decision through a process of law. Once that decision is taken by the court by ordering restitution, it is only a matter of consequence to order redelivery by the execution court. The order is now passed by the Rent Controller. That can be put into motion by the execution court to order redelivery. We are, in such circumstances, of the view that the orders passed by both courts are perfectly legal and warrant no interference. The Rent Controller ordered costs of Rs.5,000/(Rupees five thousand only). We note that the landlord was able to drag the proceedings for more than five years. We, therefore, impose costs of Rs.15,000/- (Rupees fifteen thousand only) each in all these Rent Control Petitions. If the cost is RCRev. No.427/2019 & conn.cases 10 not paid, that can be adjusted against any rent payable by the tenant. The costs shall be paid within one month. The Rent Control Revisions are dismissed. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE Sd/SHOBA ANNAMMA EAPEN, JUDGE** ln