Reporting by : Amit Kashyap.
Civil Appeal No. 9151 of 2017
Hameed Kunju Vs. Nazim
Order On : 17-7-2017.
This appeal is filed by the appellant-landlord against the final judgment and order dated 11.01.2016 passed by the High Court of Kerala at Ernakulam whereby the High Court allowed the petition filed by the respondent herein under Article 227 of the Constitution of India.
The controversy involved in this appeal is short. It arises out of an eviction matter.
The appellant is the owner/landlord of eight suit shops . The respondent is in possession of one shop out of eight shops as tenant at a monthly rent of Rs.350/-. The remaining seven shops were in occupation of other tenants at all relevant time.
The appellant filed one eviction petition before the Rent Controlling authority against his 8 tenants, which included the present respondent herein also. The eviction was claimed under Section 11(2)(b) and 11(3) of the Kerala Buildings (lease and Rent Control) Act, 1965 3 inter alia on the ground of bona fide need of the appellant to start business in the schedule suit shops. The appellant filed the eviction petition through his power of attorney holder. All the tenants including the respondent herein entered appearance and filed their written statements. They denied the material averments made in eviction petition.
By order dated 13.08.2007, the Trial Court placed the respondents (tenants) ex parte because on that day none of the respondents appeared. The Trial Court then recorded evidence of the appellant (landlord) and his witness and adjourned the case to 21.08.2007 for further hearing. On 21.08.2007 also, the tenants remained absent. The Court passed the eviction order on that day against all the tenants including the respondent herein by accepting the case set up by the appellant on merits.
Felt aggrieved by the aforementioned eviction order, the tenants filed an appeal before the Rent Control Appellate Authority. By order dated 28.08.2008, the appellate authority allowed the appeal, set aside the order dated and remanded the eviction petition to the Trial Court for its fresh disposal on merits in accordance with law.
After the remand, the Trial Court adjourned the case on few dates such as On 08.01.2009, since the Power of Attorney of the appellant and proof affidavit were neither filed nor the Power of Attorney Holder was present, the Trial Court dismissed the eviction petition for default.
The appellant then filed an application and sought restoration of his eviction petition and for setting aside of the order dated 08.01.2009 by which his eviction petition (3/2006) had been dismissed. This application was listed for hearing on 15.03.2010. On the said date, the appellant’s (petitioner’s) counsel was absent and hence, the Trial Court dismissed the appellant’s restoration application (I.A. No.210/2010) for default.
Felt aggrieved by the said order, the appellant (petitioner) filed another application being I.A. No. 437/2010 praying therein for restoration of his earlier application, i.e., (IA-210/2010). This application was also dismissed vide order dated 27.09.2010 by the Trial Court.
Aggrieved by the said order, the appellant carried the matter to the appellate authority in appeal being RCA 12/2011.
By order dated 28.01.2014, the appellate Authority allowed the appeal, set aside the aforementioned dismissal orders and restored the appellant’s original eviction petition being R.C.(OP) No. 3/2006 and remanded the eviction petition to the Trial Court for trial on merits. The appellate Court, however, while restoring the eviction petition directed the appellant (petitioner) to pay a sum of Rs.4000/- by way of cost to the tenants 6 (respondents) and Rs.2000/- to the District Legal Services Authority within 15 days failing which the appeal was to be dismissed. The parties were directed to appear before the Trial Court on 28.02.2014 to enable the Trial Court to proceed with the trial of the eviction petition and conclude the same at an early date.
After remand of the eviction petition to the Trial Court, though there was no need to again issue notice to the parties for their appearance for the reason that the appellate Court had already fixed the date for the appearance of the parties before the Trial Court on 28.02.2014, yet the Trial Court in its judicial discretion directed issuance of fresh notice to all the parties to the eviction petition for their appearance and the case was accordingly fixed for 27.03.2014.
On 27.03.2014, the case was adjourned for 02.06.2014 and then to 10.07.2014. On 10.07.2014, none appeared for the tenants (8 in number) despite service to them and hence the Trial Court proceeded to record evidence of the petitioner (appellant) and heard the arguments. The case was, however, adjourned to 22.07.2014, 25.07.2014 and lastly to 31.07.2014. The respondents (tenants) though served and otherwise also had full knowledge of the proceedings did not appear on any of these dates for the reasons best known to them.
On 31.07.2014, the Trial Court passed an eviction order and decreed the appellant’s eviction petition. The Trial Court directed eviction of all the tenants from the suit shops including that of the respondent herein from his shop. Since the tenants did not vacate the suit shops, the appellant filed execution application (EP 60/2014). Notices were issued to the tenants for hearing of the execution case on 16.01.2015. As the Court did not sit on that day, the petition was adjourned to 04.02.2015. On that day, the tenants including the respondent entered appearance pursuant to notice served on them. However, the petition was adjourned to 05.03.2015 to enable the tenants to file their objections. When the matter came up on 05.03.2015, it was submitted on behalf of the tenants that their objections have been filed. However, the matter was adjourned to 19.03.2015. On 19.03.2015, the Trial Court found that the tenants had not filed their objections and hence the Trial Court passed an order to deliver the suit shops to the appellant on 25.03.2015 and fixed the matter on 26.03.2015 for filing delivery report. The appellant (petitioner) accordingly took delivery of the suit shops with the police aid by breaking open the locks put on the suit shops.
On 26.03.2015, the Executing Court noticed that the possession of all the suit shops has been delivered to the appellant (decree holder), therefore, closed the execution case (E.P.No.60/2014) by recording satisfaction of the order.
So far as seven out of eight tenants are concerned, they did not pursue the matter further. In other words, the seven tenants accepted the fate of their case and, therefore, this Court is not concerned about seven tenants.
However, so far as the present respondenttenant is concerned, he alone pursued the issue further and filed one application being EA No. 35/2015 in decided execution petition (EP 60/2014) and made a prayer therein that the order dated 19.03.2015 directing delivery of possession should be set aside.
On 26.03.2015, the respondent filed one application (IA 789/2015) in main case (RC(OP)No.3/2006) and prayed therein that the eviction order dated 31.07.2014 passed by the Court be set aside on the ground that the tenants were neither put to notice nor were heard before the order was passed. An application (IA 790/2015) for condonation of delay of 180 days in filing the application for setting aside the order dated 31.07.2014 was also filed. Another application (IA791/2015) was filed by the respondent seeking therein a prayer for redelivery of the shop to him.
But
During pendency of these applications made by the respondent and before any order could be passed by the Trial Court/Executing Court, the respondent approached the High Court under Article 227 of the Constitution of India in writ petition and questioned the legality and correctness of four orders of the Trial Court/Executing Court.
These orders were:
a. eviction order dated 31.07.2014 passed by the Trial Court
b. order dated 19.03.2015 passed by the Executing Court which had directed taking of delivery of suit shops
c. delivery report dated 25.03.2015 filed by the bailiff and
d. order dated 26.03.2015 of the Executing Court closing the Execution Case No. 60/2014.
The High Court allowed the writ petition and while in substance quashed all the four orders impugned in the writ petition referred supra remanded the case to the Trial Court for fresh trial with the following directions.
It is against this order, the landlord has felt aggrieved and filed this appeal by way of special leave before this Court.
Hon’ble Court Observed :
Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and dismiss the writ petition filed by the respondent out of which this appeal arises.
The short question which arises for consideration in this appeal is whether the High Court was justified in allowing the writ petition filed by the respondent-tenant under Article 227 of the Constitution and was, therefore, justified in interfering in the four orders of the Trial Court/Executing Court impugned therein and, in consequence, justified in remanding the case to the Trial Court for deciding the eviction petition de novo on merits with specific directions to the Trial Court?
In our considered opinion, the detailed facts mentioned supra would clearly reveal that the High Court not only erred in entertaining the respondent’s writ petition but also erred in exercising its supervisory jurisdiction by interfering in the orders impugned therein.
In our considered view, there was no case made out on facts or/and in law by the respondent for entertaining his writ petition and interfere in the orders impugned therein.
In the first instance itself, the High Court, in our view, should have dismissed the writ petition in limine on the ground that since all the orders impugned in the writ petition were amenable to their challenge before the appellate authority, the writ petition was not the proper remedy without first filing the appeal and get the same decided by the appellate Court on its merit in accordance with law. In other words, the High Court should have declined to entertain the writ petition under Article 227 on the ground of availability of an alternative remedy of appeal to the respondent. Indeed the respondent had actually filed appeal in the first round of litigation against the orders of the Trial Court.
There was, therefore, no reason much less justifiable one for the High Court to have entertained the writ under Article 227 against as many as four orders passed by the Trial Court/ executing Court.
In any case, in our considered view, the executing Court having seized of the applications filed by the respondent, there was no justification on the part of the High Court to have entertained the writ petition and decided them like an original court. All that the High Court, in such circumstances, could do was to request the executing Court to dispose of the pending applications (IAs) filed by the respondent on their respective merits leaving the parties to challenge the orders once passed on such applications by filing appeal, before the appellate authorities. It was, however, not done.
Be that as it may, there was yet another reason which should have persuaded the High Court to decline to entertain the writ petition at its threshold.
The High Court should have appreciated the undisputed fact that the eviction decree had stood executed and possession was already delivered to the appellant of all the suit shops including the shop in possession of the respondent in accordance with provisions of Order 21 Rule 35 of the Code. It should also have been appreciated that seven tenants had not pursued their case against the same eviction decree and allowed the appellant to obtain possession of the suit shops. Whereas it was only the respondent who had raised the frivolous pleas against such action in these proceedings.
In our considered view, once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein.
As a result of the foregoing discussion, the appeal succeeds and is allowed
Judgements In Criminal Law 