S.A. SHUKOOR v. SUHARA and SUBAITHA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 OP (RC).No. 2513 of 2011(O) --------------------------RCA.5/2004 OF RENT CONTROL APPELLATE AUTHORITY, N. PARAVUR RCP.21/2001 OF RENT CONTROL COURT,ALUVA .................... PETITIONER: -------------------- S.A.SHUKOOR, S/O.S.A.ALI, SANKARANKUZHI HOUSE, ALUVA PAKUTHY, ALUVA KARA. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): --------------- 1. SUHARA, S/O.KUNJI BAVA, KORATTYPARAMBIL, KADUNGALLUR VILLAGE, PANALKKULAM KARA, U.C.COLLEGE.P.O., KODUNGALLUR, PIN 683102. 2. SUBAITHA, D/O.BAVA, KADUNGOTHUPARAMBIL, KADUNGALLUR VILLAGE, PANALKKULAM KARA, U.C.COLLEGE.P.O., KODUNGALLUR, PIN 683102. ADV. SRI.T.C.SURESH MENON FOR R1,2 SRI.I.DINESH MENON FOR R1,2 THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX: ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PETITION IN RCP. NO. 21/01 ON THE FILE OF RENT CONTROL COURT, ALUVA DT. 26-09-2001 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN RCP. NO. 21/2001 ON THE FILE OF RENT CONTROL COURT, ALUVA DT. 26-09-2001 EXT. P3 TRUE COPY OF THE ORDER IN RCP. 21/01 PASSED BY THE RENT CONTROL COURT, ALUVA, DT. 5-12-2003 EXT.P4 TRUE COPY OF THE MEMORANDUM OF APPEAL IN RCA. NO. 5/04 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, NORTH PARAVUR DT. 10-2-2004. EXT. P5. TRUE COPY OF THE ORDER IN RCA. NO. 5/04 PASSED BY THE RENT CONTROL APPELLATE AUTHORITY NORTH PARAVUR DT. 18-12-2004. EXT.P6 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT IN RCP. NO. 21/01 ON THE FILE OF RENT CONTROL COURT ALUVA DT. 14-11-2003 EXT.P7 TRUE COPY OF THE DOCUMENT NO. 4035/03 OF SRO ALUVA DT. 21-11-2003 EXT.P8 TRUE COPY OF THE DOCUMENT NO. 4236/03 OF SRO ALUVA DT. 21-11-2003 EXT.P9 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO. 5426/11 SHOWING THE TRANSFER OF PROPERTY DT. 23-5-11 EXT. P10 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO. 5425/11 SHOWING THE TRANSFER OF PROPERTY DT. 23-05-2011 EXT.P11 TRUE COPY OF THE CERTIFICATE ISSUED BY THE ALUVA MUNICIPALITY DATED 12-07-2011 EXT.P12TRUE COPY OF THE ORDER IN CP.NO. 90/05 IN RCP NO. 21/01 PASSED BY THE MUNSIFF COURT, ALUVA DT. 7-7-2011 EXT.P14 TRUE COPY OF THE EA. NO. 80/2011 IN E.P. NO. 90/05 IN RCP. 21/01 ON THE FILE OF THE MUNSIFF COURT, ALUVA DT. 23-07-2011.EXT.P13 TRUE COPY OF THE EA. NO. 79/2011 IN E.P. NO. 90/05 IN RCP. 21/01 ON THE FILE OF THE MUNSIFF COURT, ALUVA DT. 23-07-2011. RESPONDENTS' EXHIBITS: NIL (TRUE COPY) PS TO JUDGE ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.** ----------------------------------------------OP(RC). No. 2513 of 2011 ----------------------------------------------Dated this the 23[rd] day of August, 2011 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** Under challenge in this original petition filed by the tenant are Ext.P5 judgment of the Rent Control Appellate Authority ordering eviction of the petitioner from the building in question and Ext.P12 order passed by the execution court directing delivery of the above building in favour of the respondents in execution of Ext.P5 order. The petitioner concedes that against Ext.P5 eviction order passed by the Appellate Authority, he had preferred RCR no. 244 of 2005 under Section 20 of Act 2 of 1965 before this Court. He also concedes that he had withdrawn from the above RCR on the basis of a settlement arrived at between the parties. But his contention is that Ext.P5 judgment is null and void as the same is vitiated by fraud. It is urged on the basis of the judgment of the Supreme Court in Hamza OP(RC). 2513/11 -2- Haji v. State of Kerala, 2006(3) KLT 941 that it is always competent to any court to vacate any judgment or order, once it is proved that the judgment and the order was obtained by manifest fraud. Sri. Dinesh Mathew J. Murikan, learned counsel for the petitioner submitted that in as much as Ext.P5 judgment of the Appellate Authority is the result of the willful suppression of a vital fact by the respondent from the learned Appellate Authority and also from the petitioner tenant, Ext.P5 is vitiated and hence null, void and non est in law. According to the learned counsel, even the withdrawal of RCR No. 244 of 2005 on the basis of a settlement arrived at between the parties cannot stand in the way of this Court setting aside Ext.P5 on the ground of fraud. The very settlement and withdrawal would not have been there, had the fact that the first respondent, one of the landladies had ceased to have any interest in the building in question, which was sought to be evicted also on the ground OP(RC). 2513/11 -3- of own occupation by her dependent husband been disclosed. Mr. Murikan submitted that even the execution court is bound to countenance the contention that the eviction order which is being sought to be executed is vitiated by fraud and that was why Ext.P13 petition seeking review of Ext. P12 delivery order and Ext.P14 petition seeking stay were filed. But the execution court has simply kept those applications pending and those applications are mechanically adjourned from time to time. 2. Resisting the submissions of Mr. Murikan Sri.T.C. Suresh Menon, learned counsel for the respondents submitted that it is not correct to say that any fraud was perpetrated by either of the landladies in the matter of obtaining Ext.P15 order of eviction. The so called assignment by the first respondent is not in favour of a stranger. The assignment is in favour of the husband of her daughter. It is the need of the assignee and his wife OP(RC). 2513/11 -4- that the building must be occupied by the landlady's husband who is father to the daughter and father in law to the son in law. Mr. Menon submitted that at any rate, the unconditional withdrawal of RCR No. 244 of 2005 by the petitioner seals the fate of the petitioner's contentions. Mr. Menon submitted that the benefit of the settlement, i.e., getting long period of time for surrendering the premises, was enjoyed by the revision petitioner fully and it is thereafter that the revision petitioner has sought for a review of Ext.P12. Mr. Menon highlighted that at any rate, the second respondent, one of the landladies continues to be the owner of the building and as co-owner she is entitled in law to maintain petition for eviction of the tenant even without the junction of the other co-owners. 3. We have given our anxious consideration to the rival submissions addressed at the Bar. We don't propose to express any opinion on the merits of the contentions urged OP(RC). 2513/11 -5- before us by Sri. Murikan and Sri. Suresh Menon, lest the same should cause prejudice to either party in the proceedings Ext.P13, which is pending before the execution court. The argument of Mr. Murikan that a party is entitled to avoid execution of an order which has attained finality on the ground that the order is vitiated by fraud certainly is well founded. But the all important question is whether Ext.P5 is vitiated by fraud. Now that Ext.P13 petition has been filed by the petitioner, we leave it to the execution court to take a decision on the above argument. If parties want to adduce evidence, the execution court should allow them to adduce evidence and counter evidence. At any rate, the enquiry of Ext.P13 should be expedited and a decision on Ext.P13 should be taken by the execution court within a maximum period of 30 days from receipt of a copy of this judgment. Accordingly we dispose of this O.P. issuing the following directions. OP(RC). 2513/11 -6- The Munsiff Court, Aluva, which is in seizin of E.P. No. 90 of 2005 in RCP. No. 21 of 2001, is directed to conduct an enquiry into Ext.P13, hear both sides and take a correct decision in accordance with law on Ext.P13 early and at any rate within one month of receiving copy of this judgment. In view of the above directions we direct Ext.P12 order to be kept in abeyance for a period of six weeks from today. **(PIUS C.KURIAKOSE, JUDGE)** **(C.K.ABDUL REHIM, JUDGE)** ksv/-