V.K. Fathima v. Kalathil Kundancheri Janaki and Karuvattayil Chembramath Mohandas

## **'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941 Con.Case(C).No.241 OF 2020 IN RCRev.. 38/2019 AGAINST THE ORDER DATED 25.02.2019 IN RCRev. 38/2019 OF HIGH COURT OF KERALA ## PETITIONER/1ST RESPONDENT: V.K.FATHIMA AGED 67 YEARS W/O. ABOOBACKER, RESIDING AT KANDOTH HOUSE, NEAR STADIUM, THALASSERY - 670 101, KANNUR DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU ## RESPONDENTS/REVISION PETITIONERS: 1 KALATHIL KUNDANCHERI JANAKI AGED 81 YEARS W/O. LATE KAPPARAMBATH KUNHHIKANNA, RESIDING AT KAPPARAMBATH HOUSE, THALASSERY AMSOMM, VADIKKAKAM DESOM, P.O. THALASSERY - 670 101, KANNUR DISTRICT 2 KARUVATTAYIL CHEMBRAMBATH MOHANDAS AGED 61 YEARS S/O. BALAN, RESIDING AT PRABATH GUEST HOUSE, THANA, KANNUR - 670 001 THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO(C) No. 241/2020 : 2 : ## **JUDGMENT** ## **Dated this the 30[th] day of January, 2020.** ## **SHAJI P. CHALY, J** Contempt Petitioner is the landlord of a building, who has secured an order of eviction under Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'Act, 1965) i.e., for bona fide need and sub-lease. The order of the Rent Control Court and the appellate authority was confirmed by this Court in RCR No. 38 of 2019 as per an order dated 25.02.2019, however, granting 7 months' time to vacate the petition schedule building on the following conditions: “(1)The revision petitioners/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within ten months from today. (2) The revision petitioners/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. 3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand CO(C) No. 241/2020 : 3 : automatically vacated and the respondents /landlord will be at liberty to proceed with the execution of the eviction order.” 2. In compliance of the directions, tenants have filed an affidavit of undertaking before the Execution Court and the arrears of rent was also paid. Later, they filed I.A. No. 2 of 2019 before this Court seeking extension of time for surrendering the petition schedule building. But, the said application was dismissed by this Court as per order dated 20.12.2019. Apparently, E.P. No. 84 of 2017 in R.C.P. No. 76 of 2008 was pending before the Munsiff's Court, Thalassery seeking execution of the order passed by the Rent Control Court. However, after the dismissal of the I.A, for extension of time by this Court, E.A. No. 557 of 2019 was filed by one Siddique @ Raheem in the execution proceedings claiming tenancy right over the property, which according to the petitioner was done in violation of the understanding given before the execution court to surrender vacant possession of the property. Therefore, the contention advanced by the petitioner is that, being a clear violation of the undertaking given before the Execution Court, it is contempt of the court and the same is liable to CO(C) No. 241/2020 : 4 : be proceeded under the Contempt of Courts Act, 1971 and the Rules thereto. 3. We have heard learned counsel for the petitioner and perused the pleadings and documents on record. 4. Learned counsel for the petitioner Sri. P.S. Appu, submitted that since the undertaking given before the Execution Court is violated, it amounts to a clear contempt. True, as per Section 2(b) of the Contempt of Courts Act, 1971, “civil contempt” is defined to mean wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Fact remains, respondents have filed affidavit as is directed by the Division Bench of this Court in the Rent Control Revision, undertaking to vacate the premises, paid the arrears of rent and surrendered the key of the building. But, the contention is that since the tenants have given undertaking before the court that they will surrender vacant possession of the building, mere surrendering of the key would not be sufficient to comply with the undertaking given before the CO(C) No. 241/2020 : 5 : Execution Court. However, it is to be noticed that the eviction was granted by the Rent Control Court on the ground of subletting also, as provided under Section 11(4) (i) of Act, 1965, which, thus, means the Rent Control Court has found that there was subletting of the building. In this context, it is significant to note Section 21 of the Act, 1965, which read thus: “21. **Order under the Act to be binding on sub-tenants.** -- Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-tenancy of the landlord.” **5.** On an appreciation of Section 21 of Act, 1965, it is unambiguous and clear about the binding nature of the eviction granted by the Rent Control Act under Section 11(4)(i) on the sub-tenant also. Resultantly, a subtenant, who was under the tenant against whom eviction order is passed, is bound by the order of the Rent Control Court, unless such an order happened to be passed due to fraud or collusion. Section 21 has yet another distinguishing feature that, if sub-tenancy was allowed under the original CO(C) No. 241/2020 : 6 : agreement of tenancy, then also subtenant shall be made a party to the proceedings, if the tenant had given a notice of subtenancy to the landlord. Which thus means even if the eviction was granted on the ground of subletting, if the said order was obtained by fraud or collusion, or that under the original agreement of tenancy, subletting was permitted by the landlord, then the subtenant ought to have been a party to the proceedings and in that eventuality, a subtenant is entitled to raise a claim before a competent court of law. Anyhow, we are not expressing any opinion with regard to the nature of the claim petition filed by a third person. Our only look out in the contempt case is to identify as to whether the undertaking given by the respondents/tenants before the court was violated. First of all, we are of the considered opinion that respondents have complied with the conditions imposed by this Court while granting 7 months' time to vacate the premises. But, the case of the petitioner is that physical possession was not given. Evidently, there was a subtenant and therefore, it cannot be said that there was any wilful disobedience on the part CO(C) No. 241/2020 : 7 : of the tenants while surrendering key before the Execution Court. It is also equally important to note that contempt jurisdiction enjoyed by the courts is for the purpose of upholding the majesty of the judicial system. However, every court is duty bound to act judiciously and the court should be satisfied that there is a clear contumacious act on the part of a person in respect of the undertaking given to proceed under the contempt of courts Act. It is also equally important and significant to note that if the order is capable of several interpretations, then also the court will have to identify whether there is a wilful disobedience of the order, so as to make out any case of contempt and punish the contemnor. **6.** It is worthwhile to discuss some of the judgments rendered by the Apex Court in this regard. In **Suresh Chandra Poddar v. Dhani Ram** [(2002) 1 SCC 766], it is held thus: “This is an instance of how a Tribunal vested with the powers to punish for Contempt of Court became oversensitive in using such powers. Time and again this Court has cautioned as to when and in what circumstances Contempt of Court jurisdiction is to be exercised. Such a power is not intended to be exercised as a matter of course. Courts should not feel unduly touchy when they CO(C) No. 241/2020 : 8 : are told that the orders have not been implemented forthwith. If the court is told that the direction or the order of the Court has been complied with subsequently, albeit after receipt of notice of contempt, we expect the courts to show judicial grace and magnanimity in dealing with the action for contempt.” ## 7. In **Dinesh Kumar Gupta v. United India** **Insurance Co. Ltd. and ors.** [2010 (12) SCC 770], a similar question was considered by the Apex Court and held as follows in paragraph 13: “13. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this Court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non-compliance of the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the Courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act 1971 clearly postulates and emphasizes that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature.” CO(C) No. 241/2020 : 9 : ## **8.** So also, in **Kalyaneshwari v. Union of India and** **Ors.** [(2012) 12 SCC 599], it was held by the Apex Court in paragraph 21 that the contempt is a matter primarily between the Court and the contemnor and therefore, the Court has to take into consideration the behaviour of the contemnor, attendant circumstances and its impact upon the justice delivery system and if the conduct of the contemnor is such that it hampers the justice delivery system as well lowers the dignity of the Courts, then the Courts are expected to take somewhat stringent view to prevent further institutional damage and to protect the faith of the public in the justice delivery system. ## **9.** That apart, in **State of Bihar v. Madhya Pradesh** **Khair Industries** [(1980) 3 SCC 311], the Court took the view that abuse of the process of court, calculated to hamper the due course of judicial proceedings or the orderly administration of justice, is contempt of court and when the conduct is reprehensible as to warrant condemnation, then the Court essentially should take such contempt proceedings to their logical end. It was also laid CO(C) No. 241/2020 : 10 : down therein that there cannot be any mercy shown by the Court at the cost of injury to the institution of justice system. 10. Therefore, the dicta on the point is crystal clear and the courts must not be hypersensitive or carried away by emotions, but should be careful enough to be judicious, and adjudicate the issue with an even and balanced mind. 11. Bearing in mind the said judicial principles, as pointed out above, we are of the considered opinion that the petitioner has not made out any case of clear contempt of the Court with regard to the compliance of the conditions of undertaking provided before the Execution Court. It is also relevant to note that, in condition No.3 it is specified by the court that, in the event of failure to comply with any of the conditions undertaken by the tenants, the time granted to vacate the premises would stand automatically vacated and the landlords would be at liberty to proceed with the execution of the eviction order. Therefore, the remedy available to the petitioner on failure of the compliance of any undertaking made before the court CO(C) No. 241/2020 : 11 : below was to proceed in execution as is provided under Section 14 of the Act, 1965, which reads thus: “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.” 12. Therefore, the petitioner has a clear remedy to proceed against the tenants and get delivery of the property through the process of the court, since the order of the Rent Control Court is treated to be a decree, passed by the Munsiff, binding on the subtenants also as per the statutory prescription contained under Section 21 of Act, 1965. That apart, Section 14 of Act, 1965 makes it clear that the order of the Rent Control Court is to be treated as a decree passed by the Munsiff itself making the provisions of Order XXI of the Code of Civil Procedure applicable to the eviction proceedings. Order XXI Rule 11(2), which deals with written application, reads thus: ( **2) Written application—** Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be CO(C) No. 241/2020 : 12 : acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:— (a) the number of the suit; (b) the names of the parties; (c) the date of the decree; (d) whether any appeal has been preferred from the decree; (e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed; (h) the amount of the costs (if any) awarded; (i) the name of the person against whom execution of the decree is sought; and (j) the mode in which the assistance of the court is required, whether— (i) by the delivery of any property specifically decreed; (ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; (v)otherwise, as the nature of the relief granted may require.” 13. On a reading of the said provision, it is clear that a decree holder is entitled to submit the mode in which the assistance of court is required for the delivery of any property specifically decreed etc. Therefore, on a CO(C) No. 241/2020 : 13 : harmonious reading of Sections 14 and 21 of Act, 1965 and Rule 11(2) of Order XXI, it is clear that the petitioner ought to have sought for necessary assistance of the court to take delivery of the property in accordance with law. 14. Taking into account all these aspects, we are of the considered opinion that the petitioner is not entitled to secure any relief in the facts and circumstances of the case at hand, invoking the provisions of Contempt of Courts Act, 1971. However, since it is pointed out that a claim petition filed by a third person is pending before the Execution Court, we deem it appropriate that a direction is issued to the Execution Court to finalise the claim application at the earliest possible, after providing a reasonable opportunity to the respective parties. Accordingly, we do so. In the result, Contempt Petition is dismissed with the above observations. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** Rv CO(C) No. 241/2020 : 14 : ## **APPENDIX** PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF THE ORDER IN R.C.R. NO. 38/2019 ON THE FILE OF THIS HONOURABLE COURT DATED 25.02.2019 ANNEXURE-B TRUE COPY OF THE CLAIM PETITION AS E.A. NO.557/2019 IN E.P. NO.84/2017 IN R.C.P. NO.76/2008 ON THE FILE OF THE MUNSIFF'S COURT, THALASSERY DATED 21.12.2019 RESPONDENT'S EXHIBITS: NIL /True Copy/ PS to Judge. ## **rv**