Disposed

K.K. Mumthaz v. Thahira

Kerala HC13 Nov 2014OP (RC)/144/2014

Case brief

AI extract

What is this about?

The High Court of Kerala directed the Rent Control Appellate Authority to dispose of the petitioner's stay application in R.C.A. No. 170 of 2014 by December 2, 2014. Concurrently, the execution proceedings in R.C.P. No. 122 of 2011 were ordered to be kept in abeyance.

What did the court decide?

Directed the Rent Control Appellate Authority to dispose of the stay application by 2.12.2014 and kept execution proceedings in abeyance.

K.K. Mumthaz Vs Thahira — Landlord and Tenant | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN &

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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THURSDAY, THE 13TH DAY OF NOVEMBER 2014/22ND KARTHIKA, 1936

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OP (RC).No. 144 of 2014 (O)

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IN THE MATTER OF R.C.A.NO.170 OF 2014 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THALASSERY AGAINST THE ORDER IN RCP. NO.122/2011 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF COURT), THALASSERY.

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PETITIONER/APPELLANT/PETITIONER:

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K.K. MUMTHAZ AGED 45 YEARS

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D/O. AHAMMED, KADANKANDI HOUSE, BISMILLA MANZIL KADALAYI P.O., EDAKKAD AMSOM, KADALAYI DESOM KANNUR DISTRICT.

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BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI

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RESPONDENTS/RESPONDENTS/RESPONDENTS:

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K.THAHIRA, AGED 39 YEARS

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W/O. P.M.ABDUL NAZAR

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RESIDING AT HOUSE NO. C.P. 23/279, BISMILLA QUARTERS

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KANNUR CITY P.O., KANNUR DISTRICT-670 041.

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M.RAFEEQUE, AGED 49 YEARS

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S/O. MOIDEEN, KADANKANDI HOUSE, BISMILLA MANZIL

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KADALAYI P.O., EDAKKAD AMSOM, KADALAYI DESOM

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KANNUR DISTRICT-670 031.

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R1 BY ADV. SMT.M.M.DEEPA

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 13-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (RC).No. 144 of 2014 (O)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE ORDER IN R.C.P.NO. 122/2011 OF RENT CONTROL (MUNSIFF) COURT, THALASSERY DATED 10-4-2012. EXHIBIT P2. TRUE COPY OF THE PETITION IN I.A.NO. 2304/2014 IN R.C.P. NO.122/2011 OF RENT CONTROL (MUNSIFF) COURT, THALASSERY, DT. 16-9-2014. EXHIBIT P3 TRUE COPY OF THE ORDER IN I.A.NO. 2304/2014 IN R.C.P.NO. 122/2011 OF RENT CONTROL (MUNSIFF) COURT, THALASSERY DT. 31-10-2014. EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 10-11-14. EXHIBIT P5 TRUE COPY OF THE STAY PETITION FILED BEFORE RENT CONTROL APPELLATE AUTHORITY, THALASSERY DT. 10-11-14.

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RESPONDENTS' EXHIBITS: NIL

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//TRUE COPY//

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AHZ/

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K.T.SANKARAN & P.D.RAJAN, JJ.

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----------------------------------------------------

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O.P.(R.C.) NO.144 OF 2014 (O)

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---------------------------------------------------Dated this the 13^th day of November, 2014

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JUDGMENT

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K.T.Sankaran, J.

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The petitioner, namely, K.K.Mumthaz is the wife of the second respondent (M.Rafeeque). They were residing in the house belonging to the husband (the second respondent). Mumthaz alleged domestic violence against her husband and filed M.C.No.10 of 2011 on the file of the Court of the Judicial Magistrate of the First

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Class, Kannur on 14.3.2011. It is alleged that the husband Rafeeque received notice in that proceeding on 17.3.2011. On 4.4.2011, Rafeeque transferred the residential property in favour of K.Thahira, the first respondent. Later, on 21.6.2011 that house was leased in favour of Rafeeque by the purchaser Thahira. On 9.10.2011, Thahira filed R.C.P.No.122 of 2011 on the file of the Rent Control Court, Thalassery against Rafeeque under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Petition was

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O.P.(R.C.) NO.144 OF 2014 (O)

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allowed on 10.4.2012. Thahira filed Execution Petition to execute the order of eviction. Amin went to the property on 4.10.2012 to effect delivery. On 15.10.2012 Mumthaz filed a claim petition before the executing court stating that the sale deed in favour of Thahira was a fraudulent one and there was collusion between Thahira and Rafeeque to defeat the rights of Mumthaz for residence in the house. The claim petition filed by Mumthaz was dismissed on 15.10.2012 and the appeal therefrom was dismissed on 4.7.2013. Though Mumthaz filed Execution Second Appeal No.16 of 2014 before the High Court, that appeal was dismissed on 1.9.2014.

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Thereafter, on 16.9.2014, Mumthaz filed an application before the Rent Control Court under Section 11(2)(c) of the Act. That application was dismissed on 31.10.2014 holding that Mumthaz has no right to make an application under Section 11(2)(c) of the Act. Mumthaz filed R.C.A.No.170 of 2014 before the Rent Control Appellate Authority, Thalassery (District Court). Mumthaz also filed an application for stay of eviction.

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The grievance of the petitioner (Mumthaz) is that the

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O.P.(R.C.) NO.144 OF 2014 (O)

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Appellate Authority has not passed any order in the application for stay filed by her. Meanwhile, proceedings for delivery were taken and an order was passed by the executing court to effect delivery with police aid.

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Advocate Smt.M.M.Deepa appeared for the first respondent (Thahira). She submitted that Thahira is a bona fide purchaser and it was found all through out including in the judgment in Execution Second Appeal No.16 of 2014. The attempt of Mumthaz is to protract the proceedings and to deny the fruits of the order passed by the Rent Control Court to Thahira. It is submitted that, in the facts and circumstances, Mumthaz is not entitled to any discretionary relief. The learned counsel also pointed out that O.P.(C) No.2554 of 2014 was filed by Thahira challenging the order passed by the executing court to effect delivery of the building only on 1.12.2014 with police aid. It is submitted that O.P.(C) No.2554 of 2014 was allowed by a learned Single Judge of this Court and the executing court was directed to advance the hearing of the case and to effect delivery on or before 13.11.2014.

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O.P.(R.C.) NO.144 OF 2014 (O)

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The learned counsel for the petitioner submitted that in O.P. (C) No.2554 of 2014, Mumthaz was not made a party in spite of the fact that she was agitating her claim right from October 2012 before the executing court. It is submitted that the order in O.P.(C) No.2554 of 2014 is not binding on Mumthaz.

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The learned counsel for the petitioner submitted that the wife of the tenant is also entitled to maintain an application under Section 11(2)(c) of the Act. He relied on the decision in Achala Anand v. Appu Reddy (2005 (1) KLT 904 (SC)) . In answer, the learned counsel for the first respondent submitted that even in that judgment the Supreme Court observed that prompt action was required on the part of the wife to get herself made a party in the proceeding and in the present case though the order in the Rent Control Petition was passed on 10.4.2012 the application under Section 11(2)(c) was filed only on 16.9.2014. The learned counsel for the petitioner replied stating that Mumthaz was all through out prosecuting the proceedings in execution by way of claim petition and the Execution Second Appeal was dismissed only on 1.9.2014 and the application under Section 11(2)(c) was filed on 16.9.2014.

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O.P.(R.C.) NO.144 OF 2014 (O)

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He also submitted that the period spent by Mumthaz in prosecuting the proceedings before the executing court is liable to be excluded in considering the application under Section 11(2)(c) of the Act.

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In this O.P.(R.C.) we are not expected to arrive at any finding on the contentions put forward by the respective parties. The aforesaid facts were stated in detail only to justify interference in spite of the order in O.P.(C) No.2554 of 2014.

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In the facts and circumstances, the Rent Control Appellate Authority, Thalassery (District Court) is directed to dispose of the application for stay in R.C.A.No.170 of 2014 filed by Mumthaz as expeditiously as possible and, at any rate, before 2.12.2014. Till then, the proceedings in execution in R.C.P.No.122 of 2011 shall be kept in abeyance.

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(K.T.SANKARAN) Judge

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(P.D. RAJAN) Judge

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ahz/

K.K. Mumthaz v. Thahira

Case brief

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K.K. Mumthaz v. Thahira

Case brief

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