S. Suresh Kumar v. Idicula Mathew and Reji Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 OP (RC) NO. 110 OF 2021** **AGAINST THE ORDER/JUDGMENT IN R.C.A 7 of 2019 OF DISTRICT COURT & SESSIONS COURT,PATHANAMTHITTA, PATHANAMTHITTA** **R.C.P 8/2012 OF MUNSIFF COURT ,PATHANAMTHITTA, PATHANAMTHITTA PETITIONER:** S.SURESH KUMAR AGED 54 YEARS S/O. SIVARAMA PILLAI, PONNIES TEXTILES, PMC XXI/339 MAVINPARAMBIL BUILDINGS, OPP. ANURAG THEATRE, PATHANAMTHITTA P.O, PIN 689 645, RESIDING AT USHASREE HOUSE, MAVELIKKARA TALUK, KANNAMANGALAM VILLAGE, MATTOM VADAKKUM MURI, ALLEPPY DISTRICT 690 511 BY ADVS. C.S.MANILAL S.NIDHEESH ## **RESPONDENTS:** 1 IDICULA MATHEW AGED 72 YEARS S/O. KUNJUKUNJU, MAVINPARAMBIL HOUSE, KAIRALIPURAM, MUNDUKOTTAKKAL P.O, VETTIPRAM, PATHANAMTHITTA, PIN 689 649 2 REJI MATHEW AGED 44 YEARS S/O. IDICULA MATHEW, MAVINPARAMBIL HOUSE, KAIRALIPURAM, MUNDUKOTTAKKAL P.O, VETTIPRAM, PATHANAMTHITTA, PIN 689 649 BY ADVS. S.RANJIT (KOTTAYAM) GOKUL DAS V.V.H. THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC) NO. 110 OF 2021 2 ## **JUDGMENT** ## **Anil.K.Narendran,J.** The petitioner is the respondent tenant in R.C.P.No.8 of 2012 on the file of the Rent Control Court (Munsiff), Pathanamthitta, a petition filed by the respondents hereinlandlords under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. The tenant opposed the order of eviction by filing counter in the R.C.P. The Rent Control Court by Ext.P1 order dated 23.10.2017 ordered eviction of the tenant under Section 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule building to the landlords within a period of one month. Challenging the order of eviction passed by the Rent Control Court, the tenant filed R.C.A.No.7 of 2019 before the Rent Control Appellate Authority (Additional District Court-I), Pathanamthitta. In that appeal, the landlords filed I.A.No.854 of 2019, an application under Section 12 of the Act, seeking an order directing the tenant to pay admitted arrears of rent and in case of default, to stop the proceedings in the Rent Control Appeal, under Section 12(3) of the Act. In that interlocutory application, the Appellate Authority by the order dated OP (RC) NO. 110 OF 2021 3 22.01.2021, directed the tenant to deposit an amount of Rs.2,50,000/- being arrears of rent, within a period of one month. 2. The tenant failed to comply with the condition stipulated in that order. He filed an interlocutory application seeking extension of time, which was allowed and time was extended up to 20.03.2021. On 20.03.2021, when R.C.A.No.7 of 2019 came up for consideration before the Appellate Authority, it was noticed that the tenant has not deposited Rs.2,50,000/-, as directed in the order dated 22.01.2021, even within the extended time granted by the Appellate Authority. Therefore, the Appellate Authority by Ext.P5 order dated 20.03.2021, which was one issued under Section 12(3) of the Act, directed the tenant to put the landlords in possession of the petition schedule building, within a period of 45 days from the date of that order. In that order, it was made clear that, if the tenant fails to put the landlords in possession of the petition schedule building, the landlords are entitled to execute the order, in accordance with law. 3. Seeking review of Ext.P5 order dated 20.03.2021 of the Rent Control Appellate Authority in R.C.A.No.7 of 2019, the tenant filed R.P.No.1 of 2021, an application for review under OP (RC) NO. 110 OF 2021 4 Order XLVII Rule 1 of the Code of Civil Procedure, 1908, read with Section 23(1)(k) of the Kerala Buildings (Lease & Rent Control) Act, 1965. That review petition is one dated 08.04.2021. After filing that review petition, the tenant deposited a sum of Rs.1,75,000/-. 4. In the Review Petition, it is stated that pursuant to the directions contained in Ext.P3 judgment of this Court dated 24.09.2019 in O.P.(R.C)No.143 of 2019, the tenant had deposited a sum of Rs.1,00,000/- and thereafter, a further sum of Rs.2,50,000/- was deposited, at the time of filing of the review petition, as stated in paragraph 4 of Ext.P6 Review Petition. The grievance of the petitioner-tenant in this Original Petition, which is one filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, is that during the pendency of R.P.No.1 of 2021, the Execution Court, i.e., the Principal Munsiff Court, Pathanamthitta, is proceeding with E.P. No.69 of 2017 in R.C.P No.8 of 2012. 5. On 05.11.2021, when this Original Petition came up for admission, this Court issued urgent notice on admission by special messenger to the respondents, returnable by 09.11.2021. 6. Heard the learned counsel for the petitioner-tenant OP (RC) NO. 110 OF 2021 5 and also the learned counsel for the respondents-landlords. 7. The learned counsel for the petitioner-tenant would submit that seeking review of Ext.P5 order dated 20.03.2021 of the Rent Control Appellate Authority in R.C.A.No.7 of 2019, the tenant filed R.P.No.1 of 2021, which is one dated 8.04.2021, invoking the provisions under Order XLVII Rule 1 of the Code read with Section 23(1)(k) of the Act. It is during the pendency of that review petition, the execution court is proceeding with E.P.No.69 of 2017 and the EP now stands posted to 11.11.2021 for reporting delivery of the petition schedule building. Therefore time bound consideration of R.P.No.1 of 2021 is highly essential. 6. Per contra, the learned counsel for respondentslandlords would contend that R.P.No.1 of 2021, filed by the tenant is not at all maintainable in law and the grounds raised in that review petition falls outside the purview of the review jurisdiction under Order XLVII Rule 1 of the Code, read with Section 23(1)(k) of the Act. The learned counsel for the respondents would place reliance on the judgment of this Court in **K.P. Mohammed v. Madhavi Amma, [1963 KLT 688], T.B.Mehanan v. Kanakaraja Pillai [1970 KLT 1024] and M.Venugopalan v. Raphael [1974 KLT 640** ]. The learned OP (RC) NO. 110 OF 2021 6 counsel also placed reliance on the decision of this Court in **J.Ramkumar v. Asok Jacob** [judgment dated 22.10.2021 in R.C.Rev.No.129 of 2021], in order to contend that any deposit made by the tenant, after the passing of an order under Section 12(3), has no consequence at all and any such deposit will not entitle the tenant to seek an order to vacate the order of eviction passed under Section 12(3). 7. Having considered the submissions made by the learned counsel on both sides, this Court finds that R.P.No.1 of 2021 filed by the petitioner-tenant, invoking the provisions under Order XLVII Rule 1 of the Code read with Section 23(1) (k) of the Act, which is one dated 08.04.2021, is still pending consideration before the Rent Control Appellate Authority. Since E.P.No.69 of 2017 in R.C.P.No.8 of 2012 filed by the landlordsdecree holders is pending before the Munsiff Court, Pathanamthitta, a time bound disposal of R.P.No.1 of 2021 by the Appellate Authority is highly essential, taking note of the legal and factual contentions raised by both sides, including the question of maintainability of that R.P. 8. During the course of arguments, it is pointed out by the learned counsel on both sides that R.P.No.1 of 2021 now stands posted to 18.11.2021, before the Rent Control Appellate OP (RC) NO. 110 OF 2021 7 Authority. 9. In such circumstances, this Original Petition is disposed of by directing the Rent Control Appellate Authority, Pathanamthitta, to dispose of R.P.No.1 of 2021 in R.C.P.No.8 of 2012, after adverting to the legal and factual contentions raised by both sides, including the question of maintainability, as expeditiously as possible, at any rate, within a period of three weeks from the date of production of a certified copy of this judgment. Till such orders are passed, the execution court, namely, the Munsiff Court, Pathanamthitta, shall defer any coercive steps against the tenant-judgment debtor in E.P.No.69 of 2017 in R.C.P.No.8 of 2012. **sd/-** ## **ANIL K.NARENDRAN** **JUDGE** **sd/-** **P.G. AJITHKUMAR** **JUDGE** Nsd OP (RC) NO. 110 OF 2021 8 ## **APPENDIX OF OP (RC) 110/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 23-10-2017 IN R.C.P 8/2012 OF RENT CONTROL , PATHANAMTHITTA Exhibit P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE RENT CONTROL Appellate Authority AS R.C.A 7 of 2019 Exhibit P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 24-09-2019 IN O.P(RC0 143 of 2019 - Exhibit P4 TRUE COPY OF THE PETITION WITH AFFIDAVITIN R.C.A NO. 7 of 2019 DATED 7-1-2010 BEFORE THE RENT CONTROL Appellate Authority, PATHANAMTHITTA. - Exhibit P5 TRUE COPY OF THE ORDER DATED 20-03-2021 IN RENT CONTROL APPEAL NO. 7 of 2019 ON THE FILE OF THE RENT CONTROL Appellate Authority-1, (ADDL. DISTRICT JUDGE-1) PATHANAMTHITTA Exhibit P6 TRUE COPY OF THE REVIEW PETTION R.P1/2021 IN R.C.A 7 of 2019 BEFORE THE ADDL. DISTRICT COURT-1, (RENT CONTROL Appellate Authority) PATHANAMTHITTA. Exhibit P7 TRUE COPY OF THE I.A 1/2021 IN R.P (REVIEW) NO. 1/2021 IN R.C.A NO. 7 of 2019 BEFORE RENT CONTROL Appellate Authority1(ADDL. DISTRICT JUDGE-1) PATHANAMTHITTA, FILED BY THE LANLORD CLAIMING FURTHER ARREARS OF RS. 1,75,000/- Exhibit P8 //true copy// PA to Judge TRUE COPY OF THE STATUS OF THE PROCEEDINGS IN E. COURTS WEBSITE OP (RC) NO. 110 OF 2021 9