S. Ayyappankutty v. R. Rajalakshmi and Beena Krishna Moorthy and Deena Satheesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **OP (RC).No.127 OF 2020** **AGAINST THE RCP 22/1998 OF PRINCIPAL MUNSIFF,ALAPPUZHA** **AGAINST RCR NO.3 OF 2020 OF RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA** ## **PETITIONER:** **S.AYYAPPANKUTTY AGED 58 YEARS, S/O.SIVARAMAN CHETTIYAR, THEJAS READYMADE CENTRE & CUT PIECE CENTRE, AMC 132, WARD XVII, MULLACKAL VILLAGE, ALAPPUZHA.** **BY ADV. SMT.V.VIJITHA** ## **RESPONDENTS:** |**1**|**R.RAJALAKSHMI**| |---|---| ||**W/O.RADHAKRISHNA REDDIARA,**| ||**RESIDING AT RAJAGOPALA MANDRAM,**| ||**MULLACKAL,**| ||**ALAPPUZHA-688 001.**| |**2**|**BEENA KRISHNA MOORTHY,**| ||**W/O.V.KRISHNA MOORTHY,**| ||**RESIDING AT 700 ALBERTS AVENUE,**| ||**MECHANIESBERG, Pa 17099,**| ||**USA,**| ||**REPRESENTED BY HER ORALLY AUTHORISED AGENT**| ||**R.RAJALAKSHMI,**| ||**W/O.RADHAKRISHA REDDIAR,**| O.P.(RC) No.127/20 **-:2:-** **RESIDING AT RAJAGOPALA MADIRAM, MULLACKAL, ALAPPUZHA-688 001.** **3 DEENA SATHEESH, W/O.P.SATHEESH, RESIDING AT MAHALEKSHMI, VELLAKKINAR, ALAPPUZHA-688 001.** **R1, R3 BY ADV. SRI.P.VISWANATHAN (SR.) R1, R3 BY ADV. SRI.AJITH VISWANATHAN R1, R3 BY ADV. SRI.R.RAJENDRA PRASAD THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON 30-11-2020 DELIVERED THE FOLLOWING:** O.P.(RC) No.127/20 ## **-:3:-** ## **“C.R.”** ## **JUDGMENT** Dated this the 30[th] day of November, 2020 ## _Bechu Kurian Thomas, J._ Faced with an adverse order of eviction more than a decade ago, this case reflects the length to which legal proceedings can be dragged on before a landlord can enjoy the fruits of an order of eviction. Of course, the tenants cannot be blamed, for the contentions raised, are all legal in nature and within their rights too. 2. A brief sketch of the sequence of events will reveal the meaning of the opening remarks of this judgment. In a line building, occupied by thirteen tenants, eleven Rent Control Petitions, seeking eviction of the respective tenants were filed by the landlord in the year 1998. Two of the tenants had volunteered to vacate the building. Believing their words proceedings were not initiated against them. 3. The ground raised for eviction was under reconstruction and bona fide need of the landlord. Appellate Authority allowed the eviction petition. Finally, when the matter reached this Court while confirming the orders of eviction, five conditions were O.P.(RC) No.127/20 ## **-:4:-** ## imposed by judgment dated 19.8.2009 in R.C.R. No.334 of 2005 and connected cases. For easier reference, the conditions imposed are extracted below: _“(1) The tenants are granted time upto 28.2.2010 to surrender vacant possession of the premises to the landlords on condition that each one of the revision petitioners shall file separate affidavits before the Rent Control Court or the Execution Court as the case may be, unconditionally undertaking to vacate the premises on or before the said date within 3 weeks of the date of receipt of a copy of this judgment._ _(2) The revision petitioners shall pay all arrears of rent due in respect of the premises to the landlords and shall continue to pay the future rent in respect of the premises regularly till they surrender vacant possession thereof._ _(3) The landlords shall produce the approved plan and building permit in respect of the proposed construction before the Execution Court for perusal before the time fixed for the tenants to vacate the premises._ _(4) The Execution Court shall ensure that the tenants in occupation of the shop rooms from where the business of 'Prakruthi Stores' and 'Bhagavathy Textiles' are being conducted are also vacated before 28.2.2010._ _(5) Delivery warrants shall be issued by the execution court for compelling the eviction of these revision petitioners only after conditions 3 and 4 above are complied with.”_ 4. Prakruthi Stores and Bhagavathy Textiles mentioned in condition no. (4) above are the tenants who had agreed to vacate on their own. Two days prior to 28.2.2010, the tenants of Prakruthi Stores and Bhagavathy Textiles informed that they are not ready to vacate on their own. Confronted with such a situation, the landlord preferred R.C.P. No.4 of 2010 and R.C.P. No.5 of 2010 to evict those two tenants. in view of the change of O.P.(RC) No.127/20 ## **-:5:-** stance by the two tenants as stated above, the eleven tenants did not surrender vacant possession of the buildings under their occupation taking the benefit of condition no.(5) above. 5. While the eviction petitions against Prakruthi Stores and Bhagavathy Textiles were pending, the landlord preferred execution petitions to evict the other tenants against whom orders of eviction had already been passed. However, the execution court found that tenants cannot be evicted before evicting the tenants in Prakruthi Stores and Bhagavathy Textiles and closed the execution petition with a right to revive the same after evicting the aforesaid 2 tenants. Later, R.C.P. No. 4 of 2010 and R.C.P. No. 5 of 2010 were allowed and the tenants of Prakruthi Stores and Bhagavathy Textiles were finally evicted, after appeals and revision petitions filed by those tenants ended in dismissal. 6. Thereafter, the execution petitions against the eleven tenants were revived, on the application of the landlord, and 8 out of the 11 tenants were evicted. The tenants in R.C.P.No.30 of 1998, R.C.P.No.22 of 1998, and R.C.P. No.34 of 1998 refused to vacate the building. They filed petitions under Section 47 of the CPC, alleging that the order of eviction passed by this Court had become void and non-executable. O.P.(RC) No.127/20 **-:6:-** 7. The executing court allowed the petition filed by the three tenants and held that the order of eviction had become non-executable since (1) though the High Court had directed Prakruthi Stores and Bhagavathy Textiles to be evicted before 28.02.2010, they were evicted only in 2019, (2) the landlord failed to produce a valid building plan and permit, and (3) there was a partition of the property after the order of eviction. 8. Challenging the order of the executing court, the landlord preferred three revision petitions under Section 14 of the Kerala Building (Lease and Rent Control) Act, 1965 (for short 'the Act') as R.C.R. No.1 of 2020, R.C.R. No.2 of 2020 and R.C.R. No.3 of 2020. By the impugned order dated 24.09.2020, the revision petitions were allowed. This original petition is preferred challenging the common judgment in R.C.R. No.3 of 2020 on the files of the Rent Control Appellate Authority, Alappuzha. 9. Adv. Smt. V. Vijitha, learned counsel for the original petitioner’s strenuously and assiduously argued that the Appellate Authority wholly erred in setting aside the well considered order of the learned Munsiff. According to the learned counsel, the revision petition before the Rent Control Appellate Authority itself was not maintainable under Section 14 of the Act since the revision under the section lies only to a District Court. O.P.(RC) No.127/20 ## **-:7:-** It was also argued that the Revisional Authority failed to appreciate the significance of the date 28.02.2010 and contended that since the tenants of Prakruthi Stores and Bhagavathy Textiles, were not evicted before the date aforesaid, the decree could not have been executed against the petitioners. She relied upon the settled proposition that an executing court cannot go behind the decree and argued that the Court went behind the decree while ordering eviction. It was further argued by the learned counsel for the petitioner that the failure to produce the approved plan and building permit for perusal before the executing court within the time ordered rendered the entire order of eviction incapable of execution and also that sympathy and consideration for the landlord had weighed with the Court in passing the impugned order. 10. Learned Senior Adv. P.Viswanathan, on the other hand, referring to the impugned order submitted that the cause title in the impugned order is a mistake committed by the Registry of the Court and the same has no significance since the landlord had preferred the revision under Section 14 of the Act to the District Court, Alappuzha and not before the Rent Control Appellate Authority. He further pointed out that the long and arduous task of the landlord to get an order of eviction of a O.P.(RC) No.127/20 ## **-:8:-** tenant is significantly startling in the instant case. According to the learned Senior Counsel, the decree passed by this Court had never become non-executable and the attempt of the tenant is only to delay the inevitable eviction. He further argued that the tenant cannot dictate to the landlord the terms of eviction, especially regarding the plan and building permit, and submitted that the landlord is in possession of the plan and permit and even if the said plan had expired, the same is not a ground to deny the fruits of the decree and actual delivery can even be ordered only on production of a renewed or a fresh plan and permit. 11. To appreciate the contention of Adv. Vijitha regarding the jurisdiction of the Rent Control Revisional Authority to deal with a revision petition under Section 14 of the Act, we extract the said Section as below: _“_ _**14. Execution of Orders.-** Every order made under section 11 [or Section 12] or section 13 or section 19 or section 33 and every order passed on appeal under section 18 or on revision under section 20 shall, after the expiry of the time allowed therein be executed by the Munsiff or if there are more than one Munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him:_ _Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decision of the said Munsiff.”_ 12. The order impugned before us is an order passed by the court in exercise of the jurisdiction under the proviso to Section O.P.(RC) No.127/20 ## **-:9:-** 14 of the Act. It is clear from Section 14 of the Act that no appeal lies against an order passed in execution. The remedy of an aggrieved person against an order passed in execution of an order under Section 11 of the Act is to file a revision petition to the court to which appeals ordinarily lie against the decision of the Munsiff to whom a petition for execution could be filed. An appeal against an order of Munsiff Court lies under the provisions of Section 13(1) of the Kerala Civil Courts Act, 1957 to the District Court. For easier reference, Section 13(1) of the Kerala Civil Courts Act, 1957 is extracted below: _**13.Appellate jurisdiction of District Court and Subordinate Judge's Court.** -(1) Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject-matter of the suit does not exceed twenty lakh rupees from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court.”_ Thus, under the proviso to Section 14 of the Act, the revision ought to be filed to the District Court. It is the scheme of the Act that after an order of eviction is passed, the Rent Control Courts become functus officio. 13. Adv. Vijitha, invited our attention to the cause title of the impugned order, which is as follows: “In the Court of the Rent Control Appellate Authority, Alappuzha”. Present : Sri. xxxxx Additional District Judge II. O.P.(RC) No.127/20 ## **-:10:-** 14. The argument of the learned counsel that the court, which passed the impugned order had no jurisdiction under Section 14 of the Act was initially found to be attractive. We called for the memorandum of revision petition filed by the landlord. A perusal of the cause title in the memorandum of revision petition showed a different picture altogether. The cause title in the memorandum of revision was as below: “Before the Honourable District Court Alappuzha” 15. It is explicit that the revision petition was filed to the District Court and not to the Rent Control Appellate Authority. The District Judge and the Rent Control Appellate Authority are both the same. When a District Judge deals with a civil case he is exercising his jurisdiction as a District Judge, when he deals with a criminal case he exercises his jurisdiction as a Sessions Judge, and when he deals with an appeal under the Act he exercises his jurisdiction as a Rent Control Appellate Authority. The cause title prepared by the registry of the court is a clerical work. Jurisdiction is not determined by the clerical work done by the Registry of the Court. Jurisdiction is determined by the Statute. When a judicial officer is conferred with separate jurisdictions, the nature of jurisdiction exercised by him is determined by what is invoked by the party who moves the jurisdiction. Viewed in the O.P.(RC) No.127/20 ## **-:11:-** above perspective, we are of the view that since the landlord filed the revision petition before the District Court, the District Judge while dealing with R.C.R. No.1 of 2020, R.C.R. No.2 of 2020 and R.C.R. No.3 of 2020 was exercising his power of revision as an appellate court against the orders of a Munsiff as provided under Section 14 of the Act. The mistake committed by the registry in typing the cause title as Rent Control Appellate Authority is not determinative of the nature of jurisdiction exercised by the District Judge. 16. It is true that while confirming the order of eviction by judgment dated 19.08.2009 in R.C.R. No. 224 of 2005 and connected cases, this court had, as extracted in paragraph 3 of this judgment imposed conditions that the tenants in Prakruthi Stores and Bhagavathy Textiles shall be evicted before 28.02.2010 and that the plan and permit must be produced before the executing court before the said date. 17. It can be discerned from the judgment of this court in R.C.R. No.224 of 2005 that the condition that the 'tenants in Prakruthi Stores and Bhagavathy Textiles shall be evicted before 28.02.2010' was imposed, to allay the apprehensions of the tenants including the present original petitioners that there had been a selective picking of tenants for eviction from the row of **-:12:-** O.P.(RC) No.127/20 buildings. The condition as aforesaid was imposed by this court, to 'set at rest' the apprehensions of the tenants and to provide appropriate safeguards to ensure that, from the row of buildings, all tenants are evicted especially since one of the grounds for eviction was reconstruction. The condition was imposed in the light of the evidence of the landlord that the two tenants in Prakruthi Stores and Bhagavathy Textiles had volunteered to vacate the premises by 28.02.2010, due to which, proceedings for eviction had not been initiated against them. It is understood from the records produced that contrary to the promise, the said tenants refused to vacate on their own, and finally, the process of law was invoked to compel their eviction. 18. It is also interesting to note, as observed by the District Court in the impugned order that the present original petitioners were the persons who were conducting Prakruthi Stores and Bhagavathy Textiles along with another. 19. It is a settled proposition of law that an executing court cannot go behind the decree. Under the Act, there is no decree in the strict sense of the word. But a fiction is created to treat the order of eviction as a decree for the purpose of execution under Section 14 of the Act. This is clear from the words “ _shall be executed as if it were a decree passed by him_ ”. Though the O.P.(RC) No.127/20 ## **-:13:-** principle that the executing court cannot go behind the decree applies to orders of eviction passed in rent control proceedings also, the situation in the instant case is different. The order of eviction as a whole is treated as a decree and the entire judgment can be looked at to understand the meaning of the words deployed in the conditions imposed. 20. Even otherwise, equally settled is the principle that If a decree is ambiguous, the executing court is entitled to, and in fact has a duty, to construe the decree by looking to the judgment and in certain cases even the pleadings itself. In order to ascertain the meaning of the words employed in a decree, the executing court can ascertain the circumstances under which those words came to be used. In cases of confusion or ambiguity in the decree, the jurisdiction of the executing court does not begin and end with merely looking at the decree as it was finally drafted. In the decision in **Bhavan Vaja and Others v. Solanki Hanuji Khodaji Mansang and Another** [AIR 1972 SC 1371], the Supreme Court held that omission to construe the decree is an omission to exercise the jurisdiction vested in the executing court and also observed that though an executing court cannot go behind the decree, it does not mean that it has no duty to find out the true effect of that decree. The following observations **-:14:-** O.P.(RC) No.127/20 ## from paragraph 19 of the above judgment are relevant in the present context. _“19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it.”_ 21. So construed it can be seen that the only purpose of providing a cut off date as 28.02.2010 for evicting the tenants in Prakruthi Stores and Bhagavathy Textiles was based on the belief that those tenants will vacate on their own by the aforesaid date. However, if by that date, the tenants had not vacated, the same cannot be deemed to mean that the tenants in other buildings covered by orders of eviction cannot be evicted at all. Failure to obtain eviction of the tenants in Prakruthi Stores and Bhagavathy Textiles before 28.02.2010 does not render the order of eviction non-executable. The contention of the original petitioner that without filing fresh petitions for eviction and obtaining orders thereon, tenants are not liable to be evicted pursuant to the orders in R.C.R. Nos.2 to 4 of 2005 and connected cases is, according to us, too far-fetched and without any merit. We reject O.P.(RC) No.127/20 ## **-:15:-** the said contentions. 22. Similarly the direction to produce an approved plan and license before the executing court before the time fixed for evicting the tenants in Prakruthi Stores and Bhagavathy Textiles is only a measure of ensuring that the tenants are not evicted without due process when the order of eviction is based upon the grounds of reconstruction. However, to claim that merely because during the proceedings for eviction the plan and license were not obtained within the time fixed renders the order of eviction itself as non-executable, cannot be accepted. Actual delivery of possession needs to be granted only on production of approved plan and license. In fact, the learned Senior Counsel appearing for the landlord fairly conceded that actual delivery need be effected only on production of the approved plan and license for which appropriate applications are being initiated. 23. As per the prevailing rules regarding permission for construction of buildings, a permit issued is valid for 3 years, which can be extended further. Even if within the extended period of validity of the building permit, a building is not constructed, the same does not preclude the landlord from applying for a fresh building permit. In such circumstances, we are of the view that the contention that since the plan and permit **-:16:-** O.P.(RC) No.127/20 were not produced within the time stipulated, the order of eviction became non-executable is also untenable and only to be rejected. 24. In the above view of the matter, we affirm the findings of the revisional authority in the impugned order. However, the executing court shall order delivery of property to the landlords only on being satisfied with the existence of a valid plan and building permit. The original petition is dismissed. Sd/- **S.V.BHATTI JUDGE** Sd/- **BECHU KURIAN THOMAS JUDGE** vps O.P.(RC) No.127/20 ## **-:17:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ABOVE JUDGMENT DATED 19.08.2009 IN RCR NO.334/2005.** **EXHIBIT P2 TRUE COPY OF THE EP NO.105/2016 IN RCP NO.22/1998 BEFORE THE MUNSIFFS COURT, ALAPUZHA.** - **EXHIBIT P3 TRUE COPY OF THE COUNTER FILED BY PETITIONER IN EP NO.105/2016 IN RCP NO.22/1998.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14.09.2017 IN EP NO.105/2016 IN RCP NO.22/1998 BEFORE THE PRINCIPAL MUNSIFF, ALAPPUZHA.** - **EXHIBIT P5 TRUE COPY OF THE EA NO.293/2019 IN EP NO.105/2016 IN RCP NO.22/1998 BEFORE THE PRINCIPAL MUNSIFF, ALAPUZHA.** - **EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN EA NO.293/2019 IN EP NO.105/2016 IN RCP NO.22/1998.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 01.06.2020 IN EA NO.293/2019 IN EP NO.105/2016 IN RCP NO.22/1998.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 24.09.2020 IN RCR NO.03/2019 BY THE RENT CONTROL APPELLATE AUTHORITY, ALAPUZHA.** **RESPONDENT'S/S' EXHIBITS:** **NIL**