Hendry Vs Tata Tea Ltd.

R1 BY ADVS. SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC R3 BY ADVS. SRI.R.SURAJ KUMAR

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SMT.V.DEEPA SRI.SUNIL J.CHAKKALACKAL SMT.V.BEENA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 950 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE MUNNAR GRAMA PANCHAYAT DATED 19/3/2015.

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P2: TRUE COPY OF THE E.P NO.1/2013 IN RCP. NO.2/2002.

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P3: TRUE COPY OF THE ORDER DT. 24/2/2013 IN RCP NO.2/2002.

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P4: THE TRUE COPY OF THE DELIVERY WARRANT CARD REPORT OF THE ADMIN DT. 21/3/15.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K. Ramakrishnan, J.

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============================== O.P.(Civil)No.950 of 2015

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============================== Dated this, the 05^th day of August 2016.

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J U D G M E N T

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1.This is a petition filed by the petitioner who is not a party to the proceedings, challenging the delivery ordered in respect of a building under Article 227 of Constitution of India.

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2.It is alleged in the petition that respondents 1 and 2 filed RCP No.2/2002 for eviction of schedule building in that proceedings against the 3^rd respondent herein alleging that he is a tenant under them. The rent control petition was ordered ex-parte and eviction was ordered as per Ext.P3 order under Sections 11(2)(b), 11 (3), 11(4)(1) of Kerala Building (Lease and Rent Control) Act. The respondents filed Ext.P2 execution petition to execute Ext.P3 order seeking delivery. The Amin went to the property and filed Ext.P4 report stating that since the building number shown do not tally with the building number mentioned in the Execution Petition and the Rent Control Order, the

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O.P.(Civil)No.950 of 2015 : 2 :

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property could not be delivered and it is also mentioned that the boundary is also not sufficient to identify the property also. Apprehending forceful delivery without considering the objection of the petitioner, he rushed to this Court by filing this petition seeking the following relief:

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l a) issue an order or direction setting aside Ext

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P4 delivery order dt.18/3/2015 as illegal.

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b) issue such other order which this Hon'ble Court deem fit, and proper and in the facts and circumstances of the case.

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3.Heard the counsel for the petitioner Shri.Babu Paul and Shri.Abraham Markose, counsel appearing for the 1^st and 2^nd respondent and Shri.Suraj Kumar, counsel appearing for the 3^rd respondent.

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4.The counsel for the petitioner submitted that when there is discrepancy in the description of the property and it cannot be identifiable, the remedy of the decree holder is to get the decree amended and without identifying the property, court below should not have ordered delivery. Further, according to him, his right to challenge the

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O.P.(Civil)No.950 of 2015 : 3 :

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delivery when he files an application before that court has to be protected.

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5.On the other hand, the counsel for the respondents submitted that as per the records of the Munnar Grama Panchayath, the number shown in the Amin's report is the present number and the number shown is the old number in the rent control petition. However, unless the 3^rd respondent is a tenant of the building sought to be evicted against whom the order has been passed, when the Amin has returned the delivery warrant stating that the property could not be identifiable on account of want of proper boundary descriptions and difference in building number, the court below will have to give an opportunity to the decree holder to correct these aspects and conduct enquiry on these aspects before ordering delivery. Further, if the petitioner who is said to be in possession of the building on an independent right, if he files an application before the court obstructing the delivery, the court below is bound to conduct enquiry in that application and only after disposal of that application, court can order

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O.P.(Civil)No.950 of 2015 : 4 :

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further order of delivery of the property after identification of the property. So, under such circumstances, this Court feels that the petition can be disposed of as follows:

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i) In view of the Amin's report that the property could not be delivered with the present descriptions without correcting the same or convincing the court that there is no mis description of the property, court is not expected to proceed with the execution of the decree.

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ii) If the petitioner herein files an application under Order 21 Rule 97 as an objector, then, court below is directed to conduct enquiry in that application and pass appropriate orders. Till then, court below is directed not to dispossess the petitioner on the case of the present eviction order obtained.

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With the above direction and observation, the petition is disposed of.

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Office is directed to communicate this judgment to the concerned court immediately.

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Sd/- K.Ramakrishnan, Judge.

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Bb

Hendry v. Tata Tea Ltd.

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Hendry v. Tata Tea Ltd.

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