Saramma Samuel and others v. Abraham Jacob and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 ``` ## **`OP(C) NO. 1014 OF 2022`** ``` EA 10/2022 in E.P NO. 80/2020 IN O.S. NO.130/2017 OF ADDITIONAL SUB COURT,KOTTAYAM ``` ## **`PETITIONERS:`** ``` 1SARAMMA SAMUEL AGED 59 YEARS WIFE OF LATE K.P. SAMUEL @ K.P. SASEENDRAKUMAR, PONPUZHA HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. , PIN - 686540 2RINOY SAMUEL AGED 29 YEARS SON OF LATE K.P. SAMUEL @ K.P. SASEENDRAKUMAR, PONPUZHA HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN - 686540 ``` ``` 3TITUS SAMUEL AGED 24 YEARS SON OF LATE K.P. SAMUEL @ K.P. SASEENDRAKUMAR, PONPUZHA HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. PIN - 686540 ``` ``` BY ADVS. S.RANJIT (K/250/1999) GOKUL DAS V.V.H. ``` ## **`RESPONDENTS:`** ``` 1ABRAHAM JACOB AGED 41 YEARS SON OF K.A. JACOB, ONATTU HOUSE, THAZHATHANGADI P.O., THAZHATHANGADI BHAGAM, KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686005 ``` ``` 2ABI JACOB AGED 44 YEARS SON OF K.A. JACOB, ONATTU HOUSE, THAZHATHANGADI P.O., THAZHATHANGADI BHAGAM, ``` ## **`O.P (C) NO. 1014 OF 2022 2`** ``` KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. PIN - 686 005, NOW RESIDING AT VYTTILA SAURABHA APARTMENT, JANATHA, ERNAKULAM. PIN - 682019 3A.R. RAJAN AGED 52 YEARS SON OF A.R. RAGHAVAN, PALAZHIYIL HOUSE, CHOZHIYAKKADU KARA, PANACHIKKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. PIN - 686533 4RIJOY SAMUEL AGED 35 YEARS SON OF LATE K.P. SAMUEL @ K.P. SASEENDRAKUMAR, PONPUZHA HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. PIN - 686540 5RINCY SAMUEL AGED 31 YEARS DAUGHTER OF LATE K.P. SAMUEL @ K.P. SASEENDRAKUMAR, PONPUZHA HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. PIN - 686540 BY ADVS. M.P MADHAVANKUTTY ANOOP SATHYAN(K/831/2006) MATHEW DEVASSI(K/000548/2017) ANANTHAKRISHNAN A. KARTHA(K/001032/2016) REMYA M. MENON(K/001042/2022) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P (C) NO. 1014 OF 2022 3 ``` ## **Dated this the 22[nd] day of September, 2022** ## **JUDGMENT** Aggrieved by Ext.P7 order passed in E.A. No.10/2022 in E.P. No.80/2020 in O.S. No.130/2017 of the Court of the Additional Subordinate Judge, Kottayam, (court below), the applicants in the above execution application are before this Court under Article 227 of Constitution of India. The respondents in the above application are the respondents in the original petition. 2. The skeletal facts, relevant for the determination of the original petition, are: the petitioners are the legal representatives of the deceased K.P.Samuel, who had filed O.S.No.130/2017 before the court below against the respondents 1 to 3, inter alia, to declare that the sale deed executed by him in favour of the respondents 1 and 2 is null and void and the rental deed executed by him in favour of the 3[rd] respondent was under vitiating ## **`O.P (C) NO. 1014 OF 2022 4`** circumstances. It was his case that, he had availed a loan from the respondents 1 and 2, who are money lenders, and he was forced to execute the sale deed in favour of respondents 1 and 2, as a security for the loan. The respondents 1 and 2 in turn sold the property to the third respondent. The third respondent filed R.C.P.No.12/2017 (R.C.P) before the Rent Controller, Changanacherry, for an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short ‘Act’). On receipt of the summons in the R.C.P., K.P.Samuel filed the suit. In the R.C.P., K.P. Samuel denied the tenant-landlord relationship between him and the third respondent. Consequently, the Rent Controller, by Ext.P1 order, relegated the third respondent to file a civil suit as provided under the second proviso to Section 11(1) of the Act. In the meantime, K.P.Samuel and respondents 1 to 3, entered into a compromise before the District Mediation Centre, Kottayam, and filed a memorandum of agreement as provided under Section 89 ## **`O.P (C) NO. 1014 OF 2022 5`** of the Code of Civil Procedure (in short ‘the Code’) in O.S. No.130/2017. The court below, by Ext.P2 decree, decreed the suit in terms with the memorandum of agreement. As K.P.Samuel got afflicted with illness, he could not comply with the conditions in Ext.P2 decree. Immediately, after the time period stipulated in Ext.P2 decree expired, the respondents 1 to 3 filed E.P.No.80/2020 on the execution side of the court below, seeking eviction of K.P.Samuel and others under him from the building. There is no specific decree for eviction of the petitioners from the building. K.P.Samuel died on 02.05.2021. The petitioners and respondents 4 and 5 were impleaded in the execution petition as the legal representatives of K.P.Samuel. The petitioners filed E.A No.3/2021 in E.P.No.80/2020 under Order XXI Rule 58 of the Code. However, the claim petition was dismissed. The petitioners challenged the order in A.S. No.30/2022 before the District Court, Kottayam, which was also dismissed. On going through Ext.P2 decree, the ``` O.P (C) NO. 1014 OF 2022 6 ``` petitioners found that even though the title of the respondents 1 to 3 is affirmed, there is no decree of eviction drawn up by the court below. Without there being a decree, the petitioners cannot be evicted. Section 5 of the Specific Relief Act, stipulates the manner in which an immovable property can be recovered. The usage of word ‘due process of law’ in the agreement to Ext.P2 is to be interpreted that the parties meant that an independent suit is to be filed for eviction. Section 51 of the Code permits execution only if there is a specific decree. Accordingly, the petitioners filed E.A.No.10/2022 (Ext.P5) under Section 47 of the Code, challenging the executability of Ext.P2. The same was opposed by the respondents 1 to 3. The court below, without considering Ext.P5 application in its proper perspective, by the impugned Ext.P7 order, has dismissed Ext.P5 application. Ext.P7 is per se illegal and arbitrary and is liable to be set aside. Hence, the original petition. 3. The respondents 1 to 3 have filed a counter ``` O.P (C) NO. 1014 OF 2022 7 ``` affidavit through the first respondent denying the allegations in the original petition. They have contended that K.P.Samuel had validly executed the sale deed in favour of the respondents 1 and 2, who in turn executed a sale deed in favour of the third respondent. Thereafter, K.P. Samuel and the third respondent entered into a rent agreement. After the denial of title by K.P.Samuel, the parties entered into a compromise in the suit filed by K.P.Samuel. K.P.Samuel had given up all his contentions in the suit and agreed to pay the respondents 1 to 3 an amount of Rs.42,50,000/- on or before 20.08.2020 , if not the sale deed would be valid and K.P. Samuel would vacate from the building within one month from 20.08.2020. It was on the failure of K.P.Samuel to vacate the building, the respondents had filed the execution petition to execute Ext.P2 decree. After K.P.Samuel died, the petitioners and respondents 4 and 5 were impleaded in the execution petition. Then, they filed E.A No.3/2021 under Order XXI Rule 58 of the Code. The application ## **`O.P (C) NO. 1014 OF 2022 8`** was dismissed by the court below by Ext.R1(c) and confirmed in appeal by Ext.R1(h) judgment. After that, the petitioners filed the present application, which has been rightly dismissed by the court below by the impugned order. There are no grounds warranting interference by this Court under Article 227 of the Constitution of India. The original petition may be dismissed. 4. The petitioners have filed reply affidavit denying the allegations in the counter affidavit and have reiterated the contentions in the original petition. They have harped that they can be evicted from the building only by ‘due process of law’ as contemplated under the agreement to Ext.P2 decree. Unless the respondents 1 to 3 file an application for eviction under the Act, the petitioners may not be evicted. Hence, the original petition may be allowed. 5. Heard; Sri. S. Ranjit, the learned counsel appearing for the petitioners and Sri. ## **`O.P (C) NO. 1014 OF 2022 9`** M.P.Madhavankutty, the learned counsel appearing for the respondents 1 to 3. Notice to the respondents 4 and 5 have been dispensed with, since they are sailing with the petitioners. 6. Sri. S.Ranjith assailed the impugned order, principally on the ground that the decree laid for execution is a ‘nullity’ because the same is passed by a court lacking jurisdiction and not under the provisions of the Act. He relied on the decision of this Court in **Central Bank of India and Another v. Beena Thiruvenkitam** [ 2019 (3) KHC 819], wherein it is held that a tenant can be evicted only as per the provisions of the Act. He also relied on the Full Bench decision of this Court in **Antony v. Thandiyode Plantations (Pvt.) Ltd.** [1995 KHC 342] to canvass the position that a decree passed by a court lacking inherent jurisdiction is a nullity, which is the law laid down by the Honourable Supreme Court in **Kiran Singh and Others v. Chaman Paswan and Others** [1954 KHC 475]. He, prayed the original petition ## **`O.P (C) NO. 1014 OF 2022 10`** be allowed. 7. Sri.M.P.Madhavankutty countered the above submissions by contending that the sole intention of the petitioners is to protract the culmination of the execution petition. The petitioners have resorted to all dilatory tactics to stall the execution proceedings. The fact that they had chosen to file an application under Order XXI Rule 58 of the Code, which was dismissed by the court below and confirmed by the appellate court, estops them from filing an application under Section 47 of the Code. The above two proceeding cannot go hand in hand by the same persons. Moreover, although K.P.Samuel had denied the landlord-tenant relationship in the R.C.P, he gave up the contention in the suit filed by him and agreed to vacate the building. The contradictory stands taken by K.P. Samuel and now the petitioners, establishes that there is no bona fides in their claim. Furthermore, as per second proviso to Section 11(1) of the Act, the Civil Court is a competent court to decide whether a tenant ## **`O.P (C) NO. 1014 OF 2022 11`** has to be evicted or not. Also, order 23 Rule 3 of the Code enables a compromise petition to be filed even if the subject matter in the suit is not the subject matter of agreement. He relied on the decisions of the Honourable Supreme Court in **Brakewel Automotive Components (India) Pvt. Ltd. M/s v. P.R. Selvam** [2017 KHC 6211], **Pratibha Singh and another v. Shanti Devi Prasad and another** [2003 KHC 839] and a decision of the Delhi High Court in **Gajender Solanki v. Banso Devi** [2006 KHC 3386] to buttress his contentions that the original petition is devoid of any substance or merits and is only liable to be dismissed. 8. The point is whether there is any error or illegality in Ext.P7 order passed by the court below. 9. Sri. K.P. Samuel filed O.S. No.130/2017, against the respondents 1 to 3 before the court below, inter alia, to declare that the sale deed executed by him in favour of the respondents 1 and 2 and the rent agreement executed between him and the third respondent were null and void. ## **`O.P (C) NO. 1014 OF 2022 12`** 10. After the institution of the suit, the third respondent had filed R.C.P No.12/2017, against K.P. Samuel under Section 11(3) of the Act, for an order of eviction. 11. In the R.C.P., K.P. Samuel denied the landlordtenant relationship. He contended that he has already filed a suit before the court below and the same was pending consideration. 12. The Rent Controller, by Ext.P1 order, closed the R.C.P. and relegated the third respondent to the civil court. 13. During the interregnum period, on 20.08.2019, K.P. Samuel and the respondents 1 to 3 entered into a memorandum of agreement which is appended to Ext.P2 decree, under Section 89 of the Code, before the District Mediation Centre, Kottayam. ## 14. Clause (iii) of the agreement reads as follows: “(iii) If the plaintiff fails to pay the above said amount of Rs.42,50,000/- (Rupees forty five lakh fifty thousand only) to the defendant No.1, within the stipulated dated of 20.08.2020, **the** ``` O.P (C) NO. 1014 OF 2022 13 ``` **above said sale deeds will become absolute and confirmed and the plaintiff agreed to vacate from the building within one month from the stipulated date of 20.08.2020 and the defendants are entitled to evict the plaintiff and all under him from the plaint schedule property by the process of law.”** 15. The court below acted on the memorandum of agreement and passed Ext.P2 decree. 16. In the light of Ext.P2 decree and the agreement, the respondents 1 to 3 did not file a separate civil suit as observed in Ext.P1 order. 17. It is profitable to extract Section 11(1) of Kerala Buildings (Lease and Rent Control) Act, 1965, which reads as follows:- “11. Eviction of tenants.— (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act : Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act : **Provided further that where the tenant denies the title of the landlord or claims right of permanent** ## **`O.P (C) NO. 1014 OF 2022 14`** **tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in the section,** notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim of unfounded.” 18. The second proviso extracted above, establishes that when a tenant denies the title of the landlord or claims right of permanent tenancy and the Rent Controller on being satisfied that the claim is bona fide, shall record a finding to the effect and hold that the landlord is entitled to sue for the eviction of the tenant in a Civil Court and such Civil Court can pass a decree for eviction. 19. In the case at hand, even though K.P. Samuel had initially denied that he was the tenant of the third respondent, in the memorandum of agreement leading to Ext.P2, he unambiguously admitted that the third respondent was his landlord and he would vacate from the building within one month from 20.08.2020. The ``` O.P (C) NO. 1014 OF 2022 15 ``` court below, a Civil Court, acted on the agreement and decreed the suit i.e. passed an order of eviction if K.P.Samuel failed to pay the amount. 20. Thus, even though the Rent Controller had relegated the third respondent to the Civil Court by Ext.P1, K.P.Samuel in the memorandum of agreement agreed to vacate the building before the court below, a Civil Court falling within the realm of second proviso of Section 11(1) of the Act. In view of undertaking by K.P. Samuel before the court below, there was no necessity for the respondents 1 to 3 to file another civil suit, as the dispute between the parties regarding title of the third respondent stood finally adjudicated and decided and a default order of eviction was passed. Furthermore, once the Rent Control Court has decided that the landlord has to move the civil court, there is no enabling provision in the Act, for the landlord to again move the Rent Controller. Thus, Ext.P2 decree passed by the court below is an order of eviction passed under the second ## **`O.P (C) NO. 1014 OF 2022 16`** proviso to Section 11(1) of the Act. 21. I may add that, undisputedly K.P. Samuel did not pay the amount agreed in Ext.P2 decree and the order of eviction came into force and the decree was put to execution. As the petitioners knew their fate and the validity of the decree, they consciously filed the application under Order XXI Rule 58 of the Code, staking a claim over the property. After suffering a decree passed by the court below and confirmed by the appellate court, the petitioners are estopped from again reagitating the same cause of action through an application filed under Section 47 of the Code as the findings in the earlier round operate as res judicata, notwithstanding the finality of Ext.P2 decree against their predecessor-in-interest. 22. Recently a three Judge Bench of the Honourable Supreme Court in **Rahul S Shah v. Jinendrakumar Gandhi** [2021 (6) SCC 418] has held as follows:- “23. This court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. ## **`O.P (C) NO. 1014 OF 2022 17`** This was discussed even in the year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing (187172) 14 Moore’s I.A. 605 which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. This Court made a similar observation in Shub Karan Bubna @ Shub Karan Prasad Bubna v Sita Saran Bubna (2009) 9 SCC 689, wherein it recommended that the Law Commission and the Parliament should bestow their attention to provisions that enable frustrating successful execution. The Court opined that the Law Commission or the Parliament must give effect to appropriate recommendations to ensure such amendments in the Code of Civil Procedure, 1908, governing the adjudication of a suit, so as to ensure that the process of adjudication of a suit be continuous from the stage of initiation to the stage of securing relief after execution proceedings. The execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice”. 23. I also find sufficient force in the contention of Sri. M.P.Madhavankutty that Order XXIII Rule 3 of the Code specifically permits a court to pass a decree, so far it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. ## **`O.P (C) NO. 1014 OF 2022 18`** On an analysis of the sequence of events narrated above, this Court is of the definite view that the attempt of the petitioners is only to protract the determination of the execution petition on one pretext or the other. After the predecessor-in-interest of the petitioners conceded to the ownership of the third respondent over the building and agreeing to vacate the building, and the petitioners themselves suffering a decree, it is too late in the day for them to start another round of litigation under Section 47 of the Code, that too challenging the executability of Ext.P2 decree. I hold that Ext.P2 decree is valid and sufficient to evict the petitioners and respondents 4 and 5 from the building. There is no error or illegality in Ext.P7 order warranting interference by this Court in exercise of its power of superintendence under Article 227 of the Constitution of India. The original petition is a ruse to procrastinate the execution petition filed to execute a decree passed under Section 89 of the Code as early as on 20.08.2019. If the parties are permitted to ``` O.P (C) NO. 1014 OF 2022 19 ``` take such frivolous contentions, certainly, the purpose of a salutary provision like Section 89 of the Code would be rendered otiose. The original petition is devoid of any merits and is dismissed. **Sd/-** **C.S.DIAS, JUDGE** rmm22/09/2022 ## **`O.P (C) NO. 1014 OF 2022 20`** ## **`APPENDIX OF OP(C) 1014/2022`** - `PETITIONER EXHIBITS` ``` Exhibit P1 ``` ``` TRUE COPY OF THE ORDER DATED 15.09.2018 IN R.C.P. NO. 12/2017 BEFORE THE RENT CONTROLLER, CHANGANACHERRY. ``` ``` Exhibit P2TRUE COPY OF THE COMPROMISE DECREE DATED 21.08.2019 IN O.S. NO. 130/2017 BEFORE THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM. ``` - `Exhibit P3 TRUE COPY OF THE E.P. NO. 80/2020 IN O.S. NO. 130/2017 BEFORE THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.` - `Exhibit P4 TRUE COPY OF THE IMPLEADING PETITION FILED AS E.A. NO. 1/2021 IN E.P. NO. 80/2020 IN O.S. NO. 130/2017 BEFORE THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.` - `Exhibit P5 TRUE COPY OF E.A. NO. 10/2022 IN E.P. NO. 80/2020 IN O.S. NO. 130/2017 BEFORE THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.` - `Exhibit P6 TRUE COPY OF THE OBJECTION FILED IN E.A. NO. 10/2022 IN E.P. NO. 80/2020 IN O.S. NO. 130/2017 BEFORE THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.` - `Exhibit P7 TRUE COPY OF THE ORDER DATED 07.06.2022 IN E.A. NO. 10/2022 IN E.P. NO. 80/2020 IN O.S. NO. 130/2017 BEFORE THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.` ## **`O.P (C) NO. 1014 OF 2022 21`** ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R1 (a) ``` ``` A TRUE COPY OF THE PLAINT IN O.S NO.130/2017 BEFORE THE SUB CURT, KOTTAYAM. ``` ``` EXHIBIT R1(b) ``` - `A TRUE COPY OF THE CLAIM PETITION EA NO. 3/2021 IN EP NO. 80/2021` ``` EXHIBIT R1 (C) ``` - `A TRUE COPY OF THE ORDER DATED 05.03.2022 IN E.A. NO. 3/2021 IN E.P. NO. 80/2020 IN O.S. NO. 130/2017 PASSED BY ADDITIONAL SUB COURT, KOTTAYAM` - `EXHIBIT R1 (D) A TRUE COPY OF THE APPEAL MEMORANDUM BEARING NO. AS NO. 30/2022` - `EXHIBIT R1 (E) A TRUE COPY OF THE STAY PETITION BEARING NO. IA NO. 1/2022 IN AS NO. 30/2022` ``` EXHIBIT R1 (F) ``` - `A TRUE COPY OF THE ORIGINAL PETITION (CIVIL) BEARING NO. 607 OF 2022 BEFORE THIS HONOURABLE COURT` - `EXHIBIT R1(G) A TRUE COPY OF THE ORDER IN OP (C) NO. 607/2022 DATED 30.03.2022 BEFORE THIS HONORABLE COURT` ``` EXHIBIT R1 (H)A TRUE COPY OF THE JUDGMENT DATED 02.06.2022 IN AS NO. 30/2022 BEFORE ADDITIONAL DISTRICT COURT - II (SPECIAL), KOTTAYAM ```