Remanded

Mathew v. James Jacob

Kerala HC23 Oct 2018CRP/162/2017

Case brief

AI extract

What is this about?

The High Court held that Section 52 of the Transfer of Property Act overrides the non-obstante clause in Section 11(1) of the Rent Control Act. Tenants inducted during a suit are bound by the decree. The executing court's dismissal was set aside, and the matter remanded.

What did the court decide?

The order dismissing the execution application is set aside. The matter is remanded to the lower court for fresh disposal within three months.

Mathew Vs James Jacob — Execution and Attachment | Kerala HC (2018)

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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 P.SOMARAJAN

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TUESDAY,THE 23RD DAY OF OCTOBER 2018/1ST KARTHIKA, 1940

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CRP.No.162 of 2017

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AGAINST THE ORDER DATED 14-03-2017 IN EP.NO.4/2012 IN OS NO.31/2002 OF SUB COURT, PALA

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REVISION PETITIONER:

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MATHEW,S/O. MICHAEL, KUZHINJALI HOUSE, KADANADU KARA, KADANADU VILLAGE, MEENACHIL TALUK, DOING BUSINESS IN THE ADDRESS ANJALY TRAVELS KATTAKKAYAM BUILDINGS, PALA.

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BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY

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RESPONDENTS:

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1 JAMES JACOB, S/O. CHACKO, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK-686589

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2 LAIJU JAMESON, S/O. JAMES JACOB, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE,MEENACHIL TALUK-686589

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3 LINTO JAMESON, S/O.JAMES JACOB, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE,MEENACHIL TALUK-686589

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4 KUNJAMMA JAMES, D/O. THOMAS, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK-686589

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5 THOMAS.P.THOMAS, S/O. THOMAS, PARAVANPARAMBIL HOUSE, NADACKAL, ERATTUPETTA-686001

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C.R.P.No.162 of 2017

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6 BABU THOMAS, S/O.THOMAS, PARAVANPARAMBIL HOUSE, NADACKAL, ERATTUPETTA-686001

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7 KUNJAMMA TOWERS, A PARTNERSHIP FIRM REPRESENTED BY MANAGING PARTNER, JAMES JACOB, KATTAKKAYAM HOUSE, PALA.P.O., WARD NO.III, PALA MUNICIPALITY-686575

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R2 TO R6 BY ADVS. SRI.ABRAHAM GEORGE JACOB SRI.JIBU P THOMAS

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

C.R.P.No.162 of 2017

"C.R."

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O R D E R

Against the order of dismissal of E.P.No.4 of 2012 in O.S.No.31 of 2002, dated 14.3.2017, of the Court of Sub Judge, Pala, the petitioner/decree holder came up with this Revision.

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The petitioner who was the tenant

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occupying a shop room in the ground floor facing

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towards Pala-Erattupetta road, surrendered vacant possession to the landlord on executing Ext.A2 agreement, by which the landlord agreed to provide

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a shop room facing the said road after

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reconstruction. But, after the reconstruction of a multi storeyed building facing towards PalaErattupetta road, no room was given to the petitioner/decree holder as agreed, which has necessitated institution of a suit in O.S.No.31 of

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2002 and ultimately a decree for specific performance of Ext.A2 agreement was passed. Both the parties fairly conceded that the decree has

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C.R.P.No.162 of 2017

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become final and conclusive. The decree was put

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in execution, but the execution court dismissed the same holding that the tenants who were inducted into the shop rooms cannot be evicted without resorting to the remedies provided under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Rent Control Act'). The abovesaid order is under challenge in this Revision.

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Admittedly, all the tenants who were in

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occupation of twelve rooms facing towards PalaErattupetta road were given on lease during the pendency of the suit, subsequent to Ext.A2 agreement. The execution court dismissed the execution of the decree on the reason that since there is a non-obstante clause under Section 11 of

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the Act, the tenants who were inducted into possession can only be evicted in accordance with the provisions contained in the Act. So, the question came up for consideration is whether S.52 of the Transfer of Property Act has got overriding

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C.R.P.No.162 of 2017

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effect over the non-obstante clause in Section

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11(1) of the Rent Control Act. The issue can be answered only by answering the abovesaid question. Section 11(1) of the Rent Control Act is extracted below for reference:

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“11. Eviction of tenants.-- (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act:”

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(emphasis supplied)

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Section 11 starts with a non-obstante

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clause which gives an overriding effect over other

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laws and agreements and even decrees in the matter of eviction of tenants either in execution or otherwise. It is by virtue of the non-obstante clause in Section 11 of the Rent Control Act the

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matters which would otherwise govern by Sections 106 and 111 of the Transfer of Property Act brought under the Rent Control Legislation viz. the Kerala Buildings (Lease and Rent Control) Act,

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C.R.P.No.162 of 2017

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1965 and the constitutional validity of the Rent Control Legislation was upheld by the Apex Court being the same a subject that comes in concurrent list of the Constitution as item No.6 in the Third Schedule in Leelabai Gajanan Pansare and Others v. Oriental Insurance Co. Ltd. and Others (2008 KHC 5010: (2008) 9 SCC 720) and Welfare Association, A.R.P. Maharashtra v. Ranjith P. Gohil (2003 KHC

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276: (2003) 9 SCC 358 ). The wording used in Section 11(1) “notwithstanding anything contained in any other law” and the wording “in execution of decree or otherwise” gives an exhaustive nature to the non-obstante clause overriding any other law for the time being in force or any decree put in execution, but by virtue of Article 254(1)of the Constitution of India certain Central Act will prevail over the State Legislation viz. the Rent Control Act. Section 52 of the Transfer of Property Act and the principles behind it resting on the maxim “ ut lite pendente nihil innovetur ” imposes a prohibition on transfer or otherwise dealing with any property during the pendency of a

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C.R.P.No.162 of 2017

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suit, provided that the conditions laid down in the Section are satisfied. It is based on equity and good conscience and it would prevail over any provision as the principle embedded are not amenable for any dilution. A transferee pendente lite is bound by the decree just as much as he was a party to the suit and the transfer, if any, made neither be illegal nor be void ab initio but remains subservient to the right eventually determined by court in pending litigation. In short, Section 52 of the Transfer of Property Act will prevail over the non-obstante clause in Section 11 of the Rent Control Act and as such the tenants who obtained leasehold right over the property during the lease are bound by the decree. The protection under the non-obstante clause in Section 11(1) of the Rent Control Act will not come into play.

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The execution petition was rejected

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without any sufficient ground and hence the order of the lower court is liable to be set aside.

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C.R.P.No.162 of 2017

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The order dismissing the execution application is hereby set aside. The matter is remanded back to the lower court for fresh disposal in accordance with the law in force. The lower court shall dispose of the matter within a period of three months from the date of receipt of a copy of this order.

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The parties shall appear before the lower court on 19.11.2018.

Sd/-

P.SOMARAJAN

JUDGE

ahz/

Mathew v. James Jacob

Case brief

What is this about?

What did the court decide?

Mathew v. James Jacob

Case brief

What is this about?

What did the court decide?

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