RP No. 374/2013 in RCRev.199/2011, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 30TH DAY OF MAY 2013/9TH JYAISHTA 1935 RP.No. 374 of 2013 IN RCRev..199/2011 ------------------------------------------ AGAINST THE ORDER IN RCRev. 199/2011 of HIGH COURT OF KERALA DATED 06-03-2013 REVIEW PETITIONER(S)/REVIEW/PETITIONER/ADDITINAL RESTPONDENT 4 TO 6: ------------------------------------------------------------------------------------------------------------------------------------- 1. K.FATHIMA AGED 68 YEARS D/O.MUHYIDEEN PILLAI, R/A.T C 41/2556, DRAINAGE ROAD MANACAUD, THIRUVANANTHAPURAM-9 2. MOHAMMED SHAREEF AGED 55 YEARS S/O.ABDUL MAJEED, P.T.CHACKO NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM 3. ABDUL AZEEZ,AGED 73 YEARS, S/O/LATE MOHAMMED KUNJU, PLOT N .17, 19/946 CHEMPAKA HOUSING COMPLEX, CHALAPURAM , CALICUT 2 BY ADV. SRI.P.GEORGE WILLIAM GEORGE PAIKADAY RESPONDENT(S)/RESPONDENT/REVISION PETITIONERS 1 TO 5 & RESPNDENTS 1 TO 3: --------------------------------------------------------- 1. M/S. ZAM ZAM RESTAURANT A FIRM UNDER THE INDIAN PARTNERSHIP ACT AND REPRESENTED BY ITS MANAGING PARTNER MOIDEEN KUNJU ALIKUNJU TC XIV/2314 AND XIV/2314-1 PALAYAM VACHIYOOR VILLAGE, THIRUVANANTHAPURAM 695 001. 2. MOIDEEN KUNJU ALIKUNJU MANAGING PARTNER, M/S.ZAM ZAM RESTAURANT TC XIV/2314 AND XIV/2314-1 PALAYAM VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM 695 001 3. M.A.MOHAMMED ANWAR R/A.PLOT NO 1719/946, CHEMPAKA HOUSING COMPLEX CHALAPURAM, KOZHIKODE 673 001. 4. K A IBRAHIM R/A.HIDAYATHUMANZIL, INCHILANMGODE VIA, MANGALAPAD KASARAGOD DIST 671 014 RP.No. 374 of 2013 IN RCRev..199/2011 5. T T RAZIA R/A.THOYAL MALIGE HOUSE, THEKKILPERRY P O, CHENGALA KASARAGOD 671 214 6. SUBAIDA BEEVI D/O.FATHIMA BEEVI, 'SAFAIR', KALLATTUMUKKU ALKKARA, VEETTUMURI, MUTTATHARA THIRUVANANTHAPURAM-695009 7. P M THAHIRA PARTNER R/A.JESEEMA MANZIL NEAR SECONDARY HIGH SCHOOL, AZHIYOOR, KOZHIKODE-673654 8. ABDULLA, MANAGER, M/S.ZAM ZAM RESTAURANT TC XIV/2314 AND XIV/2314-1, PALAYAM VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695035 R BY SRI. K.B.PRADEEP R BY SRI.K.JAJU BABU THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22/05/2013 THE COURT ON 30/05/2013 PASSED THE FOLLOWING: **`T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Review Petition No.374/2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30`[th] day of May, 2013** ## **`O R D E R`** ## **`Ramachandran Nair, J.`** This review petition is filed by the petitioners, who are additional respondents 4 to 6 in the revision petition. The first revision petitioner is a firm registered under Indian Partnership Act and revision petitioners 2 to 5 are four of its partners. The review petitioners herein also claim to be partners of the very same firm. 2. By the order dated 06/03/2013, this Court dismissed the revision petition confirming the orders passed by the Rent Control Court as well as the Appellate Authority, allowing eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 3. It is averred in the review petition that the review petitioners had filed a Special Leave Petition before the Apex Court in which their application for permission to file the special leave petition stands rejected. 4. We heard the learned Senior Counsel for the petitioners Shri Mathai M. Paikaday and Shri K.B.Pradeep learned counsel appearing for the landlord. At the outset, Senior Counsel Shri Mathai M.Paikaday submitted that actually the grounds pleaded in the review petition could not ## **`R.P. No.374/2013`** ## **-:2:-** be raised before this Court earlier, but the learned Senior Counsel submitted that those grounds are sufficient to review the order passed in revision. Learned Counsel Shri K.B.Pradeep appearing for the Landlord, submitted that the review petition is not maintainable at the instance of the review petitioners as they have not challenged any orders passed by the Rent Control Court as well as the Appellate Authority in any form before this Court and have chosen to come into the party array of the revision petition only as additional respondents. It is further submitted that there are no grounds to review the order passed by this Court. 5. First we will narrate the contentions of the learned Senior Counsel for the review petitioners. It is submitted that the first review petitioner was one of the partners as on the date of the execution of the Ext.A6 lease agreement which has been found to be validly executed by this Court also. It is submitted that the same violates Section 19(2)(f) of the Indian Partnership Act and Section 23 of the Indian Contract Act also is attracted. Learned Senior Counsel further submitted that as per Section 60 of the Indian Easements Act, 1882 the partnership is entitled to continue their exclusive possession in their own building No.T.C.14/2314(1). The learned Senior Counsel further submitted that fraud and collusion have been ## **`R.P. No.374/2013`** ## **-:3:-** alleged between the landlord and the other partners which can be raised by the review petitioners at any time before any court and the same will render the entire proceedings null and void. Learned Senior Counsel invited our attention to the statutory prescriptions pointed out as above and various decisions of this Court and the Apex Court, namely, _**Javerilal Kalyanji v. M/s.Sheth Brothers**_ **[1989 (2) KLT 585],** _**M/s. Chhotelal Pyarelal, The Partnership Firm and Others vs. Shikarchand**_ **[(1984) 4 SCC 343],** _**Luka Mathai v. Neelakanta Iyer Subramonia Iyer**_ **[(1972) 4 SCC 604],** _**Kunhayammed and Others v. State of Kerala and Others**_ **[(2000) 6 SCC 359],** _**Ram Sarup Gupta (dead) by LRS vs. Bishun Narain inter College and others**_ **[(1987) 2 SCC 555]** in support of the above contentions. 6. Shri K.B.Pradeep, learned counsel appearing for the respondent-landlord submitted that as far as the review petitioners 2 and 3 are concerned, they cannot be heard on any aspects since they became partners only after execution of Ext.A6. Learned counsel also raised various contentions with regard to the statutory provisions relied upon by the learned Senior Counsel for the petitioners and submitted that none of those provisions are attracted herein. Further, it is submitted that the review petitioners have not chosen to become parties before Rent Control Court ## **`R.P. No.374/2013`** ## **-:4:-** and the Appellate Authority. The order of eviction passed by the Rent Control Court and confirmed in appeal have not been challenged in any form by them before this Court and having chosen to implead themselves only as additional respondents, they cannot have any valid argument to vacate the orders passed by the authorities below. It is submitted that none of the contentions are part of any pleadings before any forum. What was filed as I.A.No.1913/2011 before this Court was only an application for impleading where an unsupportable allegation of fraud and collusion has been raised. Learned counsel therefore submitted that the review petition is not entertainable as there are no apparent errors in the Order. Learned counsel also submitted that the review petitioners have been brought forth actually by the firm and the other partners to try to avoid the execution of the orders. 7. We find from the proceedings that Rent Control Petition is filed in the year 2006 as R.C.P.No.36/2006 which was disposed of by order dated 23/10/2007. The appeal from the same, namely, filed as R.C.A.No.10/2008 was disposed of by the Appellate Authority on 31/01/2011 and the revision petition R.C.R.No.199/2011 was filed by the firm and other four partners on 23/05/2011 before this Court. ## **`R.P. No.374/2013`** ## **-:5:-** 8. We are of the view that the review petition is not entertainable for various reasons. As rightly pointed out by the learned counsel for the landlord, the review petitioners have not challenged the order of eviction as confirmed by the Appellate Authority. Therefore, they have not approached this Court seeking for a relief to vacate the order of eviction in any legal form as known to law. Merely by remaining parties, namely, as additional respondents and without seeking any relief, they will not be justified in filing a review petition. The order of eviction was passed by the Rent Control Court on certain grounds pleaded by the Landlord which was confirmed in appeal. The legality of the same has come up for consideration in the revision petition at the instance of the partnership firm along with certain other partners. 9. In that view of the matter, we are of the view that the review petition itself is not entertainable and, therefore, we need not go into the various contentions raised in the review petition. Admittedly, even the legal contentions raised in the review petition have not been taken up in the affidavit filed along with the application for impleading I.A.No.1913/2011, in the revision petition. It is well settled that a review petition cannot be one for rehearing of the entire matter. ## **`R.P. No.374/2013`** ## **-:6:-** 10 Apart from that we are not satisfied that there are any apparent errors or any mistake which requires a review of the order passed by this Court. For all these reasons, we dismiss the review petition as not entertainable. ``` (T.R. Ramachandran Nair, Judge.) ``` ``` (A.V. Ramakrishna Pillai, Judge.) ``` ## **`ms`**