High Court of KeralaDivision BenchOriginal petition dismissed in limine. No costs.

Puthiya Purayil Kanamadathil Valsalan v. Sulochana K.C. and others

Case / Petition Number:OP(RC) No.186 of 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chitambaresh
  • Ashok Menon
Judgment Date
2019-11-06
Court Decision / Holding
The original petition is dismissed in limine. No costs.
Final Disposition
Original petition dismissed in limine. No costs.

Parties to the Case

Appellants / Petitioners

  • Puthiya Purayil Kanamadathil Valsalan

Respondents

  • Sulochana K.C.
  • Vas antha K.C.
  • Santh a.K.C
  • Prasanna.K.C
  • Seetha Lakshmi.K.C
  • K.V.Giri ja
  • K.C Vishnu
  • K.C Jithin Chandran

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri.K.M.Firoz
  • • Sri.V.MURALEE KRISHNAN
  • • Smt.M.SHAJNA

Case Synopsis & Summary

The Kerala High Court, in OP (RC) No.186 of 2019, deals with eviction of a tenant on the ground of bona fide need for own occupation under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The landlord-petitioners sought eviction to start a garment manufacturing unit for the fifth petitioner. The Rent Control Court and the appellate authority upheld the bona fide need, and the High Court, in revision, confirmed eviction but granted the tenant eight months to vacate, conditioned on filing an affidavit undertaking to vacate and pay rent. The tenant complied with the undertaking and extended time until 22.9.2019. After the death of the fifth petitioner (4.7.2019), his legal heirs stepped in. The tenant argued that the bona fide need does not survive the landlord’s death and raised objections in execution. The court reviewed two competing lines of authority: (i) an earlier view that the bona fide need must be assessed at institution and death pending appeal does not affect it; (ii) a later view that subsequent developments may be considered, potentially extinguishing the need after the landlord’s death. The court ultimately held that in execution, the eviction decree’s finality cannot be reopened and the tenant is estopped from leveraging post-decree developments after filing the undertaking. The original petition was dismissed in limine with no costs, affirming the landlords’ entitlement to delivery to their heirs.

Provisions of Law Cited

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965

Legal Doctrines & Maxims

  • Finality of decree cannot be reopened by the executing court after it becomes final.
  • Estoppel in execution proceedings after filing an undertaking to vacate.
  • Once the decree becomes final, it forms part of the landlord’s estate and may be executed by legal heirs.
  • Two conflicting precedents on survival of bona fide need after landlord’s death (as background): Gaya Prasad v. Pradeep Shrivastava; Shakuntala Bai v. Narayan Das

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-ten ant contends that bona fide need for own occupation must be examined as of the date of institution of the eviction petition, and subsequent events (including the death of the fifth landlord-petitioner) should not revive or alter the need in execution. The tenant had filed an undertaking (affidavit) to vacate, which extended until 22.9.2019. The tenant argues that the death of the petitioner extinguishes the need or at least changes the basis for eviction, and that execution should consider evolving circumstances; however, the undertaking binds the tenant to vacate, and he contends that his challenge to the eviction order cannot be revived post-decree.

Contentions of Respondents

The landlords argue that eviction on bona fide need is a valid ground under the Rent Act and, once a final decree for eviction has been passed and becomes part of the estate of the landlord, execution should proceed in favor of the landlords’ heirs. They rely on the settled law that events after filing but before the decree can be considered for adjudication, but not after the decree becomes final. They contend that the tenant cannot rely on the landlord’s death to defeat or modify the final eviction order and that the order should be executed in favor of the landlords’ heirs with the ten-ant’s undertaking binding him to vacate.

Cited Precedents (8)

Case NameCitationTreatmentExplanation
Gaya Prasad v. Pradeep ShrivastavaAIR 2001 SC 803Mentioned OnlyCited as part of the background two-view discussion on survival of bona fide need; not adopted here.
Shakuntala Bai v. Narayan DasAIR 2004 SC 3484Mentioned OnlyAnother reference illustrating the earlier view; not followed in the present rationale.
Sheshambal v. Chelur Corporation[(2010) 3 SCC 470Mentioned OnlyCited to outline the later view on subsequent developments; not treated as controlling law here.
Puthenpurayil Mariyam and others v. Sunenda alias Suganda and others[2013(2) KHC 213]Mentioned OnlyCited as part of the broader discussion on post-petition events; not applied as governing in this execution scenario.
P.V.Papanna and others v. K.PadmanabhaiahAIR 1994 SC 1577PositiveEstablished the principle that events after filing eviction petition can be considered until final decree; adopted to some extent in understanding finality.
Hasmat Rai and another v. Raghunath PrasadAIR 1981 SC 1711PositiveCited with Papanna to support the concept of considering subsequent events up to decree finalization.
Selvaraj v. Kanthaswamy1988 (2) KLT 745OverruledCourt notes this decision does not lay down correct law regarding execution post-decree and death of landlord.
Deshpande v. Maruti Balaram Haibatti[(1998) 6 SCC 507]PositiveAffirmed that filing an undertaking does not entirely bar the tenant from challenging the order in execution.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** **OP (RC).No.186 OF 2019** **AGAINST THE ORDER DATED 19.10.2019 IN E.P.NO.373/2018 IN RCP.NO.277/2004 OF ADDITIONAL MUNSIFF'S COURT, KANNUR** ## **PETITIONER/JUDGMENT DEBTOR IN E.P:** **PUTHIYA PURAYIL KANAMADATHIL VALSALAN,AGED 77 S/O.KANNAN, RESIDING AT PALIKKUNNU, CHALAD, KANNUR TALUK AND DISTRICT.** **BY ADVS. SRI.K.M.FIROZ, SRI.V.MURALEE KRISHNAN SMT.M.SHAJNA** ## **RESPONDENTS/DECREE HOLDERS IN E.P.:** **1 SULOCHANA K.C, AGED 75,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM,KANNUR-670560.** - **2 VASANTHA K.C.,AGED 67,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** - **3 SANTHA.K.C, AGED 66, K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** - **4 PRASANNA.K.C, AGED 60,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** - **5 SEETHA LAKSHMI.K.C, AGED 57,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** - **6 K.V.GIRIJA,W/O.LATE RAMACHANDRAN,AGED 60,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** - **7 K.C VISHNU,S/O.LATE RAMACHANDRAN,AGED 32,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** OP(RC) No.186 of 2019 2 **8 K.C.JITHIN CHANDRAN, AGED 28,K.C.NIVAS, RAMATHERU, PUZHATHI AMSOM DESOM, KANNUR-670560** ## **SRI.S.VINOD BHAT-AMICUS CURIAE** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(RC) No.186 of 2019 3 “CR” ## V. CHITAMBARESH & ASHOK MENON, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## OP(RC) No.186 of 2019 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6[th] day of November, 2019 ## Judgment ## Chitambaresh, J. 1.The landlords sought eviction of the tenant on the ground of bona fide need for own occupation for one of them under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ['the Act']. The bona fide need alleged is that the petition scheduled premises was required to start a garment manufacturing unit by the fifth petitioner in the rent control petition. The rent control court as well as the appellate authority (after an initial order of remand) upheld the bona fide need alleged and directed the eviction of the tenant from the premises. This Court in a revision petition at the instance of the tenant confirmed the concurrent orders of eviction however granting him a period of eight months to vacate the premises. This was subject to the condition that the tenant files an affidavit before the execution court undertaking to OP(RC) No.186 of 2019 4 vacate the premises on the expiry of the period and pay rent till such time. 2.The petitioner herein who is the tenant filed an affidavit of undertaking on 8.4.2019 as directed and availed of the extended time to vacate the premises till the expiry of the period of eight months on 22.9.2019. The fifth petitioner in the rent control petition whose bona fide need was alleged, died in the interregnum on 4.7.2019 and his legal heirs have stepped into his shoes. The respondents herein are the legal heirs of the deceased fifth petitioner in the rent control petition and other landlords who have applied for delivery of the premises in execution. The tenant taking advantage of the death of one of the landlords filed an additional counter statement to the execution petition contending that the bona fide need does not survive. The execution court has by the order impugned overruled the objections of the tenant and has directed the premises to be delivered over to the landlords by deputing an amin. - 3.We heard Mr K.M.Firoz, Advocate for the petitioner as well as Mr Vinod Bhat, Advocate as amicus curiae. OP(RC) No.186 of 2019 5 4.The earlier view was that the bona fide need of the landlord has to be examined as on the date of institution of the proceedings and his subsequent death pending appeal or revision makes no difference. The decisions are: i. Gaya Prasad v. Pradeep Shrivastava [AIR 2001 SC 803] ii. Shakuntala Bai v. Narayan Das (AIR 2004 SC 3484). The later view is that subsequent developments have to be taken note of pending proceedings of the challenge to the order of eviction and the bona fide need becomes extinct on the death of the landlord. The decisions are: i. Sheshambal v. Chelur Corporation [(2010) 3 SCC 470] ii. Puthenpurayil Mariyam and others v. Sunenda alias Suganda and others [2013(2) KHC 213]. 5.We need not ponder over the correctness of the above two views as the fact situation in the present case is the execution of an order of eviction of the tenant which has attained finality long ago. Nine months have rolled by since the order passed in revision and there is no pleading either in the execution court or OP(RC) No.186 of 2019 6 here that the tenant intends to move the Supreme Court. The order of eviction has become final and the fruits of the decree forms part of the estate of the deceased which the legal heirs of the decree holder landlord are entitled to enjoy. This is not a case where the decree itself becomes a nullity by operation of law as in the case of extending the Act over an area which is covered by a decree for eviction passed in a suit. 6.The law is settled in P.V.Papanna and others v. K.Padmanabhaiah [AIR 1994 SC 1577] which followed the decision in Hasmat Rai and another v. Raghunath Prasad [AIR 1981 SC 1711] as follows: “17. For the foregoing discussion, we must hold that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final court determining the rights of the parties but any event that takes place after the decree becomes final cannot be made a ground for re-opening the decree. The finality to the dispute culminating in the decree cannot be reopened by the executing court for re-adjudication on the ground that some event or the other has altered the situation. As a corollary thereto it must also be held that once the decree become final it became a part of the estate of the landlord and therefore the appellants OP(RC) No.186 of 2019 7 as a legal representatives of the deceased landlord are entitled to execute the same.” (emphasis supplied) The decision in Selvaraj v. Kanthaswamy [1988 (2) KLT 745] that the executing court can declare that the decree for personal need is incapable of execution on the death of the landlord does not lay down the correct law. 7.It is true that the right of the tenant to further challenge the order of eviction is not in any way scuttled by the filing of an affidavit of undertaking (see Deshpande v. Maruti Balaram Haibatti [(1998) 6 SCC 507]). But we are of the view that the tenant is estopped from claiming the benefit of subsequent developments in the execution proceedings after having filed an affidavit of undertaking. The deceased landlord would have obtained delivery of the premises in execution had not the tenant been granted extended time to vacate on the basis of the undertaking. We do not find any error in the order of the execution court directing the petition scheduled premises to be delivered over which warrants interference in exercise of the supervisory jurisdiction. 8.Mr Vinod Bhat, Advocate deserves a rich encomium for his role as amicus curiae in the case. OP(RC) No.186 of 2019 8 The original petition is dismissed in limine. No costs. Sd/V. CHITAMBARESH, JUDGE Sd/ASHOK MENON, JUDGE **Sha/051119** OP(RC) No.186 of 2019 9 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF EXECUTION PETITION FILED AS E.P.NO.373/2018 BEFORE THE PRINCIPAL MUNSIFF'S COURT, KANNUR DATED 6.10.2018** **EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 22/01/2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN RCR NO.353/2018 EXHIBIT P3 A TRUE COPY OF THE UNDERTAKING AFFIDAVIT DATED 08.04.2019 FILED BY THE PETITIONER HEREIN BEFORE THE PRINCIPAL MUNSIFF'S COURT, KANNUR** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL COUNTER STATEMENT SUBMITTED BY PETITIONER HEREIN BEFORE THE EXECUTION COURT IN E.P.NO.373/2018 BEFORE THE PRINCIPAL MUNSIFF'S COURT, KANNUR** **EXHIBIT P5 TRUE COPY OF ORDER DATED 19.10.2019 IN EP NO.373/2018 IN RCP NO.277/2004 PASSED BY ADDITIONAL MUNSIFF COURT, KANNUR IN-CHARGE OF PRINCIPAL MUNSIFF**