SANTHA & OTHERS v. SALIM & HASEENA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** **CON.CASE(C).NO. 581 OF 2014 (S)** **------------------------------------------JUDGMENT DATED 15-01-2014 IN RSA. NO.1125/2013.** **.....** ## **PETITIONERS/RESPONDENTS 1 TO 3:** **-------------------------------------------------------** ## **1. SANTHA, AGED 65 YEARS,** - **W/O.LATE M.D.ANTONY, MOOKKEN HOUSE, PARAVATTANY, KIZHAKKEKOTTA P.O., THRISSUR-680 001.** **2. ATTLEY D.MOOKAN, AGED 46 YEARS, S/O.LATE ANTONY, MOOKKEN HOUSE, PARAVATTANY, KIZHAKKEKOTTA P.O., THRISSUR-680 001.** **3. ABI ANTONY, AGED 42 YEARS, S/O.LATE ANTONY, MOOKKEN HOUSE, PARAVATTANY, KIZHAKKEKOTTA P.O., THRISSUR-680 001.** **BY ADVS.SRI.T.M.CHANDRAN, SRI.JOSHI VARGHESE, SRI.S.SUJITH, SRI.V.A.SASIDHARAN, SRI.JOSEPH ALBIN NEDUNTHALLY.** ## **RESPONDENTS/APPELLANTS:** **---------------------------------------------** ## **1. SALIM, AGED ABOUT 53 YEARS,** **S/O.THACHODI MUHAMMED, OLLUKKARA VILLAGE, KRISHNAPURAM DESOM, THRISSUR TALUK-680 655.** **2. HASEENA, AGED ABOUT 48 YEARS, W/O.THACHODI MOIDEEN, OLLUKKARA VILLAGE, KRISHNAPURAM DESOM, THRISSUR TALUK-680 655.** **BY ADVS. SRI.T.A.UNNIKRISHNAN, SRI.K.S.PRAVEEN, SRI.K.B.GANGESH.** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **CON.CASE(C).NO. 581 OF 2014 (S)** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE I CERTIFIED COPY OF THE JUDGMENT DATED 15/01/2014 IN RSA NO.1125/2013.** **ANNEXURE II COPY OF THE AFFIDAVIT DATED 31/01/2014. ANNEXURE III CERTIFIED COPY OF THE ORDER DATED 26/03/2014. ANNEXURE IV COPY OF THE AFFIDAVIT DATED 08/04/2014 FILED BY RESPONDENT NO.1. ANNEXURE V COPY OF THE MARRIAGE INVITATION OF THE DAUGHTER OF THE RESPONDENTS.** **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Cont. Case (C) No. 581 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of August, 2014 ## **J U D G M E N T** This is a petition to take contempt proceedings against the respondents for having violated the undertaking of this Court. 2. The facts essential for the disposal of this petition are as follows: Eviction was ordered in O.S. No. 1884 of 2001 by the Munsiff Court, Thrissur which was confirmed in the second appeal by this Court in R.S.A. No. 1125 of 2013. While disposing of the R.S.A., this Court granted two months time to appellants to vacate the plaint schedule building on condition that they file an affidavit within ten days from the date of judgment undertaking that they shall surrender vacant possession of the property on or before the expiry of two months granted and that they will not induct any other person in possession of the property and will not create any document in respect of the said property. It was further ## **Cont. Case (C) No. 581 of 2014** **-2-** stated in the said judgment that if the condition as aforesaid is complied with, the execution proceedings in E.P. 1160/2012 will be kept in abeyance for two months. The certified copy of the said judgment is produced as Annexure-I. 3. Presumably in compliance with the said order, Annexure-II affidavit was produced before the execution court by the appellants before this Court. Though the special leave petition was filed before the Apex Court, it met with no success. The petitioner points out that I.A.No. 703 of 2014 was filed before this Court in R.S.A.No. 1125 of 2013 seeking extension of time for four months for vacating the building. After hearing, the said petition was disposed of by order dated 26.03.2014 granting time till 07.04.2014 to vacate the building and to remove the household articles. The certified copy of the said order is produced as Annexure-III. It is pointed out that respondents filed Annexure-IV before the execution court stating that they ## **Cont. Case (C) No. 581 of 2014** **-3-** vacated the building on 07.04.2014 and they are not responsible for any subsequent happenings in the building. 4. The petitioner would complain that cleverly enough the respondent 1 and 2 while claim to have handed over possession of the building, inducted the mother of the first respondent into possession and she filed a claim petition as 756 of 2014 before the execution court raising the very same contentions as already raised by the respondents 1 and 2 in the earlier proceedings. According to the petitioner, this is a ploy adopted by the judgment debtor in the suit to defeat the orders passed by this Court. He would say that the mother has been inducted into possession by the judgment debtors, the act of doing so and refusing to comply with the order of this Court amounts to contempt of court for which proceedings may be taken. 5. The respondents, who have filed a counter affidavit, dispute the above allegations. It is pointed out by them that they have vacated the premises within the time ## **Cont. Case (C) No. 581 of 2014** **-4-** granted by this Court in the second appeal. They also disputed that they had inducted the mother of the first respondent into possession and she is making a claim on their behalf. She, according to the respondents, is making independent claim over the property. It is asserted in the affidavit that the judgment debtors are not inducted anybody into possession. They therefore pray that proceedings are unwarranted as against them. 6. It is pointed out by the learned counsel for the petitioner that at no point of time the respondents before this Court had ever raised a contention that their mother was in possession of the suit property and she had independent rights over the same. All along they had agitated their rights and that was found against by all the courts concurrently. Having faced an order of eviction and having obtained time from this Court, the ploy now adopted is to defeat the order of this Court. ## **Cont. Case (C) No. 581 of 2014** **-5-** 7. The learned counsel for the petitioner relied on the decision reported in **Sarojini Radhamma** v. **Bhaskaran Pillai** [2004 (3) KLT 815], **Santanu Chaudhuri** v. **Subir Ghosh** [2007 (3) KLT 888 (SC)] and **K.C.G. Verghese** v. **K.T. Rajendran and Another** [2003 (2) SCC 492] and pointed out that in such circumstances, this Court will be justified in ordering Police aid for evicting persons who found to be in possession of the property and to grant vacant possession of the building to the petitioner. 8. The learned counsel appearing for the respondents pointed out that they had nothing to do with the mother who is in occupation of the premises and whose claim petition is pending consideration. 9. As already noticed, there was no contention for the respondent herein at any point of time, either before the trial court or before the lower appellate court or before this Court that the mother had any independent right to premises and that she was entitled to protect the same. ## **Cont. Case (C) No. 581 of 2014** **-6-** They all along proceeded as if they were the lessees and suffered the order of eviction at the hands of the courts. The mere fact that a claim petition has been filed by the mother who now is in possession of the property, cannot salvage the situation. 10. If this sort of tactics is to be encouraged, it becomes very easy to frustrate the order passed by the court and makes mockery of the same. The contention that the mother of the first respondent is independently possessing the premises is far from convincing and cannot be readily accepted. 11. Relying on the decision reported in **K.C.G. Verghese** v. **K.T. Rajendran and Another** [2003 (2) SCC 492], wherein it was held that in such cases, the learned counsel for the petitioner pointed out that the court will be justified in ordering the Police aid for evicting the persons found to be in possession of the building. ## **Cont. Case (C) No. 581 of 2014** **-7-** Borrowing the above principle, this Court directs the execution court to seek Police aid which has to be provided as soon as the request is made by the court and the person found to be in possession of the building shall be evicted if need be by force and vacant possession shall be given to the petitioner. Thereafter the claim petition will be determined in accordance with law. The property shall be delivered on or before 26.08.2014. Forward a copy of this judgment to the execution court. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge