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Hameed Kunju
V.
Nazim

Abhay Manohar Sapre & R. Banumathi, JJ.



Headnote

PRACTICE AND 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 applications. 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, should have dismissed the writ petition in limine on the ground that since all the 4 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. (Para 28)

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. (Para 29)

In any case, 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. (Para 30)

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. (Para 32)

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 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. (Para 33)

It is not in dispute that the respondent was aware of the eviction proceedings because he had been contesting the proceedings since inception at every stage in the Trial Court and then in appeals. It is also not in dispute that it was at his instance, the appellate Court had remanded the case to the Trial Court by order dated 28.01.2014 and fixed the date for the parties to appear before the Trial Court. It is also not in dispute that though the respondent 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 second service of notice of the proceedings. (Para 35)

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

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

We are of the considered opinion that the appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of Rs.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 affidavit duly supported by an affidavit of his advocate (pages 51-52 of SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal except denying. (Para 40)

We also find that while issuing impugned directions, the High Court again exceeded its supervisory jurisdiction under Article 227 when 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. (Para 43)

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



Abhay Manohar Sapre, J.

1.
Leave granted.

2.
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 in O.P.(RC) No. 69 of 2015(O) whereby the High Court allowed the petition filed by the respondent herein under Article 227 of the Constitution of India.

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

4.
The appellant is the owner/landlord of eight schedule suit shops details of which are specified in the eviction petition. 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.

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 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 (hereinafter referred to as “the Act”) 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.

6.
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.

7.
Felt aggrieved by the aforementioned eviction order, the tenants filed an appeal before the Rent Control Appellate Authority being RCA No. 51/2007. By order dated 28.08.2008, the appellate authority allowed the appeal, 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 in accordance with law.

8.
After the remand, the Trial Court adjourned the case on few dates such as 29.09.2008, 04.11.2008 and 03.12.2008 and then fixed for 08.01.2009. 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 (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 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.

10.
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.

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

12.
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 (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.

13.
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.

14.
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.

15.
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.

16.
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.

17.
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.

18.
However, so far as the present respondent-tenant 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.

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 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.

20.
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: (1) eviction order dated 31.07.2014 passed by the Trial Court (2) order dated 19.03.2015 passed by the Executing Court which had directed taking of delivery of suit shops (3) delivery report dated 25.03.2015 filed by the bailiff and (4) order dated 26.03.2015 of the Executing Court closing the Execution Case No. 60/2014.

21.
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:

  The Rent Control Court, 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 within two weeks from the date on which the petitioner produces a certified copy of this order. The landlord and the tenants shall in order to enable the rent control court to act as directed above, appear through counsel before the rent control court on 29.02.2016. The rent control court shall thereupon consider the question whether the landlord namely the appellant in R.C.A.No.12 of 2011 had 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 be completed before the closure of the civil courts for the summer vacation of 2016. Needless to say, if costs was not paid within the stipulated time, the rent control court will have no jurisdiction to dispose of R.C.(OP)No.3 of 2006 afresh. In the event of the rent control court entering a finding that the sum of Rs. 4,000/- was paid as costs to the respondents in R.C.A.No.12 of 2011 by the appellant therein within the stipulated time, the rent control court shall dispose of R.C.(OP)No.3 of 2006 afresh, after affording both sides an opportunity to adduce oral and documentary evidence. Depending upon the outcome of the enquiry to be held by the rent control court, it will be open to the tenants to move the execution court for redelivery. Until such time as the rent control court takes a decision in the matter, the status-quo as on today as regards the petition schedule property in R.C.(OP)No.3 of 2006 shall be maintained. In other words, the landlord shall not let it out to any one else and shall not transfer possession thereof to any third party. In view of the aforesaid directions, the Rent Control Court shall pass an order closing I.A.No.791 of 2015 in R.C.(O.P)No.3 of 2006, reserving liberty with the tenants to move the execution court for redelivery, if they succeed in the enquiry to be held rent control court, regarding payment of the sum of Rs. 4,000/- as costs.

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

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

24.
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.

25.
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?

26.
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.


27.
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.

28.
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 4 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.

29.
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.

30.
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.

31.
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.

32.
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.

33.
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.

34.
Apart from what is held supra, we are of the considered opinion that there was absolutely no case made out by the respondent on the merits calling any kind of interference by the High Court in its supervisory jurisdiction under Article 227 in any of the four orders. The reasons are not far to seek.

35.
It is not in dispute that the respondent was aware of the eviction proceedings because he had been contesting the proceedings since inception at every stage in the Trial Court and then in appeals. It is also not in dispute that it was at his instance, the appellate Court had remanded the case to the Trial Court by order dated 28.01.2014 and fixed the date for the parties to appear before the Trial Court. It is also not in dispute that though the respondent 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 second service of notice of the proceedings.

36.
In these circumstances, in our considered view, the Trial Court was fully justified in passing the eviction order on merits on 31.07.2014 against the respondent. Once the final order had been passed, the remedy of the respondent lies in filing appeal against such order to the appellate Court or apply for its setting aside under Order 9 Rule 13 of the Code. The respondent did not do so within the time prescribed for the reasons best known to him.

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

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

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

40.
Apart from what is held above and disagreeing with the view of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of Rs.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 affidavit duly supported by an affidavit of his advocate (pages 51-52 of SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal 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 to have directed holding of any factual inquiry into the question of payment of cost. The directions to hold an inquiry on this issue is, therefore, wholly illegal and uncalled for.

42.
We are also of the considered opinion that the applications filed by the respondent for setting aside of the eviction orders dated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation of delay in filing such applications and lastly, an application filed for giving redelivery of suit shop were in the nature of abusing the process of the Court and were liable to be dismissed which unfortunately the High Court failed to do so 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 227 when 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 the High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications. The High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it. All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion.

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

46.
Learned counsel for the respondent (tenant) while supporting the impugned order argued some points but in the light of our findings recorded supra the points urged by learned counsel for the respondent has not substance. We, therefore, do not consider it necessary to deal with them in detail.

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

48.
We sincerely feel that the eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord. We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases.

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



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