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Hameed Kunju
V.
Nazim

Abhay Manohar Sapre & R. Banumathi, JJ.



Headnote

PRACTICE & PROCEDURE / TENANCY
Constitution of India, 1950
Article 227 - Writ jurisdiction - Existence of alternate remedy - Possession of shops taken vide eviction order - One of the tenants (respondent) filed application for setting aside eviction order and sought repossession - During pendency, he approached High Court under Article 227 questioning (1) eviction order, (2) order of executing court for taking possession of shops, (3) delivery report and (4) closing of execution case - Writ allowed - Justification. Held, all four orders were amenable to challenge before appellate authority. Writ petition filed, without first filing appeal and getting it decided by appellate court, should have been dismissed in limine. Further, executing court was seized of respondent's application and thus High Court should have requested executing court to dispose of the pending application. Further eviction stood executed, when possession was taken. Once decree was recorded as satisfied, litigation came to an end. Except respondent, none of the other 7 tenants pursued the case.

Constitution of India, 1950
Article 227 - Writ filed challenging four orders of trial court and executing court - High Court, in its supervisory jurisdiction under Article 227, interfered with the orders - Justification - Plea of respondent that neither notice was put, nor opportunity to hear was offered to him - Respondent was aware of the eviction proceedings as he was contesting the proceeding since inception - At his instance, appellate court had remanded the case to trial court and fixed a date for appearance of parties in the court, yet he failed to appear on that date and on all subsequent dates - Cost ordered by appellate court was also paid to respondent. Held trial court rightly passed the eviction order on merits on 31-7-2015. Remedy to file appeal before appellate court or apply for setting aside the order was not availed within prescribed time. Now he cannot deny that notice was put to him and opportunity was afforded. Order of High Court set aside.

Constitution of India, 1950
Article 227 - Writ jurisdiction - Exceeding of - Applications filed for setting aside eviction order and other orders, for condonation of delay and for repossession of shop - High Court allowed writ and issued directions to Trial Court to allow applications [IA nos. 789 and 790 of 2015] - Justification. Held High Court exceeded its supervisory jurisdiction under Article 227 in issuing direction to trial court to allow application filed by respondent. By doing so, High Court curtailed judicial power of trial court in passing appropriate orders.


Held

In the first instance itself, the High Court, in our view, shouldhave dismissed the writ petition in limine on the ground that since all the 4orders impugned in the writ petition were amenable to their challenge beforethe appellate authority, the writ petition was not the proper remedy withoutfirst filing the appeal and get the same decided by the appellate Court on itsmerit in accordance with law. In other words, the High Court should havedeclined to entertain the writ petition under Article 227 on the ground ofavailability of an alternative remedy of appeal to the respondent. Indeed therespondent had actually filed appeal in the first round of litigation againstthe orders of the Trial Court. (Para 28)

There was, therefore, no reason much less justifiable one for theHigh Court to have entertained the writ under Article 227 against as many asfour orders passed by the Trial Court/ executing Court. (Para 29)

In any case, the executing Court having seized of theapplications filed by the respondent, there was no justification on the part ofthe High Court to have entertained the writ petition and decided them like anoriginal court. All that the High Court, in such circumstances, could do was torequest the executing Court to dispose of the pending applications (IAs) filedby the respondent on their respective merits leaving the parties to challengethe orders once passed on such applications by filing appeal, before theappellate authorities. It was, however, not done. (Para 30)

The High Court should have appreciated the undisputed fact thatthe eviction decree had stood executed and possession was already delivered tothe appellant of all the suit shops including the shop in possession of therespondent in accordance with provisions of Order 21 Rule 35 of the Code. Itshould also have been appreciated that seven tenants had not pursued their caseagainst the same eviction decree and allowed the appellant to obtain possessionof the suit shops. Whereas it was only the respondent who had raised the frivolouspleas against such action in these proceedings. (Para 32)

Once the possession had been delivered and decree was recorded assatisfied in accordance with law, the litigation had come to an end leaving nolis pending. In the absence of any prima facie case having been made out on anyjurisdictional issue affecting the very jurisdiction of the Court in passingthe eviction decree, the High Court should have declined to examine thelegality of four orders impugned therein. (Para 33)


It is not in dispute that the respondent was aware of the evictionproceedings because he had been contesting the proceedings since inception atevery stage in the Trial Court and then in appeals. It is also not in disputethat it was at his instance, the appellate Court had remanded the case to theTrial Court by order dated 28.01.2014 and fixed the date for the parties toappear before the Trial Court. It is also not in dispute that though therespondent knew the date (28.02.2014) of his appearance before the Trial Court,yet he failed to appear on 28.02.2014 and all subsequent dates despite secondservice of notice of the proceedings. (Para 35)

In these circumstances, the Trial Court was fully justified inpassing the eviction order on merits on 31.07.2014 against the respondent. Oncethe final order had been passed, the remedy of the respondent lies in filingappeal against such order to the appellate Court or apply for its setting asideunder Order 9 Rule 13 of the Code. The respondent did not do so within the timeprescribed for the reasons best known to him. (Para 36)

This is not a case where the respondent could be held to beunaware of the eviction proceedings pending or/and decided against him nor itwas a case holding that he was never afforded any opportunity to contest theeviction proceedings. (Para 37)

We are of the considered opinion that the appellant had ensuredcompliance of the order of the earlier appellate Court by paying the cost ofRs.4000/- to the respondent's counsel and Rs.2000/- to the legal services.Indeed, the very fact that the appellant had stated in his counter affidavitduly supported by an affidavit of his advocate (pages 51-52 of SLP counteraffidavit Para 5), there was no reason for the High Court to have doubted thesworn testimony of the appellant and his advocate on this issue. It should havebeen accepted by the High Court for want of anything said by the respondent inrebuttal except denying. (Para 40)

We also find that while issuing impugned directions, the HighCourt again exceeded its supervisory jurisdiction under Article 227 when itwent to the extent of issuing direction to the Trial Court to "allow"the applications IA Nos. 789 and 790 of 2015 filed by the respondent. (Para 43)

In so doing, the High Court failed to see that the High Courtcurtailed the judicial powers of the Trial Court in passing appropriate orderon such applications. The High Court had no jurisdiction to issue directions tothe Trial Court to pass a particular order by either allowing the applicationor rejecting it. All that the High Court could do in such case was to remandthe case and leave the Trial Court to pass appropriate orders on theapplication(s) in exercise of its judicial discretion. (Para 44)




Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the appellant-landlordagainst the final judgment and order dated 11.01.2016 passed by the High Courtof Kerala at Ernakulam in O.P.(RC) No. 69 of 2015(O) whereby the High Courtallowed the petition filed by the respondent herein under Article 227 of theConstitution of India.

3. The controversy involved in this appeal is short. Itarises out of an eviction matter. However, in order to appreciate thecontroversy in its proper perspective, we consider it apposite to set out thefactual background of the case in detail with a view to show as to how thelitigation between the parties progressed in the last 11 years before theCourts below and how it was dealt with at different stages which eventually ledto passing of the impugned order giving rise to filing of this appeal by thelandlord by way of special leave before this Court.

4. The appellant is the owner/landlord of eight schedulesuit shops details of which are specified in the eviction petition. Therespondent is in possession of one shop out of eight shops as tenant at amonthly rent of Rs.350/-. The remaining seven shops were in occupation of othertenants at all relevant time.

5. The appellant filed one eviction petition (OP(RC)No.3/2006) before the Rent Controlling Court (hereinafter referred to as the“Trial Court”) against his 8 tenants, which included the present respondentherein also. The eviction was claimed under Section 11(2)(b) and 11(3) of theKerala Buildings (lease and Rent Control) Act, 1965 (hereinafter referred to as“the Act”) inter alia on the ground of bona fide need of theappellant to start business in the schedule suit shops. The appellant filed theeviction petition through his power of attorney holder. All the tenantsincluding the respondent herein entered appearance and filed their writtenstatements. They denied the material averments made in eviction petition.

6. By order dated 13.08.2007, the Trial Court placed therespondents (tenants) ex parte because on that day none of therespondents appeared. The Trial Court then recorded evidence of the appellant(landlord) and his witness and adjourned the case to 21.08.2007 for furtherhearing. On 21.08.2007 also, the tenants remained absent. The Court passed theeviction order on that day against all the tenants including the respondentherein by accepting the case set up by the appellant on merits.

7. Felt aggrieved by the aforementioned eviction order,the tenants filed an appeal before the Rent Control Appellate Authority beingRCA No. 51/2007. By order dated 28.08.2008, the appellate authority allowed theappeal, set aside the order dated 21.08.2007 and remanded the eviction petition(RC(OP) No.3 of 2006) to the Trial Court for its fresh disposal on merits inaccordance with law.

8. After the remand, the Trial Court adjourned the caseon few dates such as 29.09.2008, 04.11.2008 and 03.12.2008 and then fixed for08.01.2009. On 08.01.2009, since the Power of Attorney of the appellant andproof affidavit were neither filed nor the Power of Attorney Holder waspresent, the Trial Court dismissed the eviction petition (3/2006) for default.

9. The appellant then filed an application (IA 210/2010)and sought restoration of his eviction petition and for setting aside of theorder dated 08.01.2009 by which his eviction petition (3/2006) had beendismissed. This application was listed for hearing on 15.03.2010. On the saiddate, the appellant’s (petitioner’s) counsel was absent and hence, the TrialCourt dismissed the appellant’s restoration application (I.A. No.210/2010) fordefault.

10. Felt aggrieved by the said order, the appellant(petitioner) filed another application being I.A. No. 437/2010 praying thereinfor restoration of his earlier application, i.e., (IA-210/2010). Thisapplication was also dismissed vide order dated 27.09.2010 by the Trial Court.

11. Aggrieved by the said order, the appellant carriedthe matter to the appellate authority in appeal being RCA 12/2011.

12. By order dated 28.01.2014, the appellate Authorityallowed the appeal, set aside the aforementioned dismissal orders and restoredthe appellant’s original eviction petition being R.C.(OP) No. 3/2006 andremanded the eviction petition to the Trial Court for trial on merits. Theappellate Court, however, while restoring the eviction petition directed theappellant (petitioner) to pay a sum of Rs.4000/- by way of cost to the tenants(respondents) and Rs.2000/- to the District Legal Services Authority within 15days failing which the appeal was to be dismissed. The parties were directed toappear before the Trial Court on 28.02.2014 to enable the Trial Court toproceed with the trial of the eviction petition and conclude the same at anearly date.

13. After remand of the eviction petition to the TrialCourt, though there was no need to again issue notice to the parties for theirappearance for the reason that the appellate Court had already fixed the datefor the appearance of the parties before the Trial Court on 28.02.2014, yet theTrial Court in its judicial discretion directed issuance of fresh notice to allthe parties to the eviction petition for their appearance and the case wasaccordingly fixed for 27.03.2014.

14. On 27.03.2014, the case was adjourned for 02.06.2014and then to 10.07.2014. On 10.07.2014, none appeared for the tenants (8 innumber) despite service to them and hence the Trial Court proceeded to recordevidence 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. Therespondents (tenants) though served and otherwise also had full knowledge ofthe proceedings did not appear on any of these dates for the reasons best knownto them.

15. On 31.07.2014, the Trial Court passed an evictionorder and decreed the appellant’s eviction petition. The Trial Court directedeviction of all the tenants from the suit shops including that of therespondent herein from his shop. Since the tenants did not vacate the suitshops, the appellant filed execution application (EP 60/2014). Notices wereissued to the tenants for hearing of the execution case on 16.01.2015. As theCourt did not sit on that day, the petition was adjourned to 04.02.2015. Onthat day, the tenants including the respondent entered appearance pursuant tonotice served on them. However, the petition was adjourned to 05.03.2015 toenable the tenants to file their objections. When the matter came up on05.03.2015, it was submitted on behalf of the tenants that their objectionshave been filed. However, the matter was adjourned to 19.03.2015. On19.03.2015, the Trial Court found that the tenants had not filed theirobjections and hence the Trial Court passed an order to deliver the suit shopsto the appellant on 25.03.2015 and fixed the matter on 26.03.2015 for filingdelivery report. The appellant (petitioner) accordingly took delivery of thesuit shops with the police aid by breaking open the locks put on the suitshops.

16. On 26.03.2015, the Executing Court noticed that thepossession of all the suit shops has been delivered to the appellant (decreeholder), therefore, closed the execution case (E.P.No.60/2014) by recordingsatisfaction of the order.

17. So far as seven out of eight tenants are concerned,they did not pursue the matter further. In other words, the seven tenantsaccepted the fate of their case and, therefore, this Court is not concernedabout seven tenants.

18. However, so far as the present respondent-tenant isconcerned, he alone pursued the issue further and filed one application beingEA No. 35/2015 in decided execution petition (EP 60/2014) and made a prayertherein that the order dated 19.03.2015 directing delivery of possession shouldbe set aside.

19. On 26.03.2015, the respondent filed one application(IA 789/2015) in main case (RC(OP)No.3/2006) and prayed therein that theeviction order dated 31.07.2014 passed by the Court be set aside on the groundthat the tenants were neither put to notice nor were heard before the order waspassed. An application (IA 790/2015) for condonation of delay of 180 days infiling the application for setting aside the order dated 31.07.2014 was alsofiled. Another application (IA791/2015) was filed by the respondent seekingtherein a prayer for redelivery of the shop to him.

20. During pendency of these applications made by therespondent and before any order could be passed by the Trial Court/ExecutingCourt, the respondent approached the High Court under Article 227 of theConstitution of India in writ petition and questioned the legality andcorrectness of four orders of the Trial Court/Executing Court. These orderswere: (1) eviction order dated 31.07.2014 passed by the Trial Court (2) orderdated 19.03.2015 passed by the Executing Court which had directed taking ofdelivery of suit shops (3) delivery report dated 25.03.2015 filed by thebailiff and (4) order dated 26.03.2015 of the Executing Court closing theExecution Case No. 60/2014.

21. The High Court allowed the writ petition and while insubstance quashed all the four orders impugned in the writ petition referredsupra remanded the case to the Trial Court for fresh trial with the followingdirections:

     The Rent ControlCourt, Karunagapally shall pass orders allowing I.A.No.789 of 2015 and I.A.No.790 of 2015 in R.C.(OP)NO.3 of 2006 expeditiously and in any event withintwo weeks from the date on which the petitioner produces a certified copy ofthis order. The landlord and the tenants shall in order to enable the rentcontrol court to act as directed above, appear through counsel before the rentcontrol court on 29.02.2016. The rent control court shall thereupon considerthe question whether the landlord namely the appellant in R.C.A.No.12 of 2011had complied with the stipulation regarding payment of the sum of Rs. 4,000/-as costs to the respondents in R.C.A.No.12 of 2011. This enquiry shall becompleted before the closure of the civil courts for the summer vacation of2016. Needless to say, if costs was not paid within the stipulated time, therent control court will have no jurisdiction to dispose of R.C.(OP)No.3 of 2006afresh. In the event of the rent control court entering a finding that the sumof Rs. 4,000/- was paid as costs to the respondents in R.C.A.No.12 of 2011 bythe appellant therein within the stipulated time, the rent control court shalldispose of R.C.(OP)No.3 of 2006 afresh, after affording both sides anopportunity to adduce oral and documentary evidence. Depending upon the outcomeof the enquiry to be held by the rent control court, it will be open to thetenants to move the execution court for redelivery. Until such time as the rentcontrol court takes a decision in the matter, the status-quo as on today asregards the petition schedule property in R.C.(OP)No.3 of 2006 shall bemaintained. In other words, the landlord shall not let it out to any one elseand shall not transfer possession thereof to any third party. In view of theaforesaid directions, the Rent Control Court shall pass an order closingI.A.No.791 of 2015 in R.C.(O.P)No.3 of 2006, reserving liberty with the tenantsto move the execution court for redelivery, if they succeed in the enquiry tobe held rent control court, regarding payment of the sum of Rs. 4,000/- ascosts.

22. It is against this order, the landlord has feltaggrieved and filed this appeal by way of special  leave before this Court.

23. Heard Mr. Raghenth Basant, learned counsel for theappellant and Mr. Venkita Subramoniam T.R., learned counsel for the respondent.

24. Having heard the learned counsel for the parties andon 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 respondentout of which this appeal arises.

25. The short question which arises for consideration inthis appeal is whether the High Court was justified in allowing the writpetition filed by the respondent-tenant under Article 227 of the Constitutionand was, therefore, justified in interfering in the four orders of the TrialCourt/Executing Court impugned therein and, in consequence, justified inremanding the case to the Trial Court for deciding the eviction petition denovo on merits with specific directions to the Trial Court?

26. In our considered opinion, the detailed factsmentioned supra would clearly reveal that the High Court not only erred inentertaining the respondent’s writ petition but also erred in exercising itssupervisory jurisdiction by interfering in the orders impugned therein.

27. In our considered view, there was no case made out onfacts or/and in law by the respondent for entertaining his writ petition andinterfere in the orders impugned therein.

28. In the first instance itself, the High Court, in ourview, should have dismissed the writ petition in limine on the ground thatsince all the 4 orders impugned in the writ petition were amenable to theirchallenge before the appellate authority, the writ petition was not the properremedy without first filing the appeal and get the same decided by theappellate Court on its merit in accordance with law. In other words, the HighCourt should have declined to entertain the writ petition under Article 227 onthe ground of availability of an alternative remedy of appeal to therespondent. Indeed the respondent had actually filed appeal in the first roundof litigation against the orders of the Trial Court.

29. There was, therefore, no reason much less justifiableone for the High Court to have entertained the writ under Article 227 againstas many as four orders passed by the Trial Court/ executing Court.

30. In any case, in our considered view, the executingCourt having seized of the applications filed by the respondent, there was nojustification on the part of the High Court to have entertained the writpetition and decided them like an original court. All that the High Court, insuch circumstances, could do was to request the executing Court to dispose ofthe pending applications (IAs) filed by the respondent on their respectivemerits leaving the parties to challenge the orders once passed on suchapplications by filing appeal, before the appellate authorities. It was,however, not done.

31. Be that as it may, there was yet another reason whichshould have persuaded the High Court to decline to entertain the writ petitionat its threshold.

32. The High Court should have appreciated the undisputedfact that the eviction decree had stood executed and possession was alreadydelivered to the appellant of all the suit shops including the shop inpossession of the respondent in accordance with provisions of Order 21 Rule 35of the Code. It should also have been appreciated that seven tenants had notpursued their case against the same eviction decree and allowed the appellantto obtain possession of the suit shops. Whereas it was only the respondent whohad raised the frivolous pleas against such action in these proceedings.

33. In our considered view, once the possession had beendelivered and decree was recorded as satisfied in accordance with law, thelitigation had come to an end leaving no lis pending. In thesecircumstances, in the absence of any prima facie case having been madeout on any jurisdictional issue affecting the very jurisdiction of the Court inpassing the eviction decree, the High Court should have declined to examine thelegality of four orders impugned therein.

34. Apart from what is held supra, we are of theconsidered opinion that there was absolutely no case made out by the respondenton the merits calling any kind of interference by the High Court in itssupervisory jurisdiction under Article 227 in any of the four orders. Thereasons are not far to seek.

35. It is not in dispute that the respondent was aware ofthe eviction proceedings because he had been contesting the proceedings sinceinception at every stage in the Trial Court and then in appeals. It is also notin dispute that it was at his instance, the appellate Court had remanded thecase to the Trial Court by order dated 28.01.2014 and fixed the date for theparties to appear before the Trial Court. It is also not in dispute that thoughthe respondent knew the date (28.02.2014) of his appearance before the TrialCourt, yet he failed to appear on 28.02.2014 and all subsequent dates despitesecond service of notice of the proceedings.

36. In these circumstances, in our considered view, theTrial Court was fully justified in passing the eviction order on merits on31.07.2014 against the respondent. Once the final order had been passed, theremedy of the respondent lies in filing appeal against such order to theappellate Court or apply for its setting aside under Order 9 Rule 13 of theCode. The respondent did not do so within the time prescribed for the reasonsbest known to him.

37. In our considered opinion, this is not a case wherethe respondent could be held to be unaware of the eviction proceedings pendingor/and decided against him nor it was a case holding that he was never affordedany opportunity to contest the eviction proceedings.

38. On the other hand, we have no hesitation in formingan opinion that the respondent was contesting the eviction proceedings as a“professional litigant” and was successful to a large extent in keeping theproceedings pending for ten years which enabled him to enjoy possession of thesuit shop to the detriment of appellant’s interest.

39. In our considered opinion, no one prevented therespondent from appearing before the Trial Court after the remand and contestthe proceedings on merits. Despite the knowledge of the proceedings and thedate fixed by the appellate Court at his instance, if the respondent did notappear in the Trial Court and failed to contest the eviction proceedings, hehas to blame himself and none. If for one or other reason, he could not appearon 28.02.2014, no one prevented him to appear on subsequent dates of hearingand show good or sufficient cause for his absence on the previous date ofhearing.

40. Apart from what is held above and disagreeing withthe view of the High Court which persuaded the High Court to again remand thecase, we are of the considered opinion that the appellant had ensuredcompliance of the order of the earlier appellate Court by paying the cost ofRs.4000/- to the respondent’s counsel and Rs.2000/- to the legal services.Indeed, the very fact that the appellant had stated in his counter affidavitduly supported by an affidavit of his advocate (pages 51-52 of SLP counteraffidavit Para 5), there was no reason for the High Court to have doubted thesworn testimony of the appellant and his advocate on this issue. It should havebeen accepted by the High Court for want of anything said by the respondent inrebuttal except denying.

41. In the light of what we have held above, there was,in our view, neither any basis nor any justifiable reason for the High Court tohave directed holding of any factual inquiry into the question of payment ofcost. The directions to hold an inquiry on this issue is, therefore, whollyillegal and uncalled for.

42. We are also of the considered opinion that theapplications filed by the respondent for setting aside of the eviction ordersdated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation ofdelay in filing such applications and lastly, an application filed for givingredelivery of suit shop were in the nature of abusing the process of the Courtand were liable to be dismissed which unfortunately the High Court failed to doso and went on to entertain such applications.

43. We also find that while issuing impugned directions,the High Court again exceeded its supervisory jurisdiction under Article 227when it went to the extent of issuing direction to the Trial Court to “allow”the applications IA Nos. 789 and 790 of 2015 filed by the respondent.

44. In so doing, the High Court failed to see that theHigh Court curtailed the judicial powers of the Trial Court in passingappropriate order on such applications. The High Court had no jurisdiction toissue directions to the Trial Court to pass a particular order by eitherallowing the application or rejecting it. All that the High Court could do insuch case was to remand the case and leave the Trial Court to pass appropriateorders on the application(s) in exercise of its judicial discretion.

45. Be that as it may, once we hold that the impugnedorder is without jurisdiction, the same deserves to be set aside.

46. Learned counsel for the respondent (tenant) whilesupporting the impugned order argued some points but in the light of ourfindings recorded supra the points urged by learned counsel for the respondenthas not substance. We, therefore, do not consider it necessary to deal withthem in detail.

47. Before parting, we consider it apposite to observethat the object of the Rent Laws all over the State is to ensure speedydisposal of eviction cases between the landlord and tenant and especially thosecases where the landlord seek eviction for his bona fide need.

48. We sincerely feel that the eviction matters should begiven priority in their disposal at all stages of litigation and especiallywhere the eviction is claimed on the ground of bona fide need of thelandlord. We hope and trust that due attention would be paid by all courts toensure speedy disposal of eviction cases.

49. As a result of the foregoing discussion, the appealsucceeds and is allowed with costs of Rs.25,000/- payable by the respondent tothe appellant. The impugned order is set aside and all the aforementionedapplications filed by the respondent before the Trial Court in main evictioncase No. RC(OP)No.3/2006 and EP No. 60/2014 are dismissed as being whollymisconceived and devoid of any merit. Costs as awarded above.

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