Dismissed

M.Shanta v. Thayambath Padmanabhan

Kerala HC7 Mar 2018CRP/94/2018

Case brief

AI extract

What is this about?

This revision petition challenges the Munsiff Court's dismissal of a Section 47 CPC execution petition filed by tenants seeking to resist eviction based on the absence of a dividing wall. The High Court of Kerala dismissed the revision, holding that the eviction order was executable despite the tenants' lack of cooperation.

What did the court decide?

Set aside prayed for: Dismissal of the Civil Revision Petition.

M.Shanta Vs Thayambath Padmanabhan — 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 ALEXANDER THOMAS

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WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939

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CRP.No. 94 of 2018

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E.A. NO.24/2018 IN EP. NO.9/2017 OF MUNSIFF COURT, PAYYANNUR.

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REVISION PETITIONERS/PETITIONERS/JUDGMENT DEBTORS

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1 M. SHANTA, W/O. RAGHAVAN, AGED 68 YEARS, MUNDIKOOT HOUSE, T.C.V. BUS STOP, ANNUR P.O., ANNUR, TALIPARAMBA TALUK, KANNUR-670 307.

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2 M. AJITHA, D/O.RAGHAVAN, AGED 42 YEARS, MUNDIKOOT HOUSE, T.C.V. BUS STOP, ANNUR P.O., ANNUR, TALIPARAMBA TALUK, KANNUR-670 307.

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3 M. BABU, S/O.RAGHAVAN, AGED 39 YEARS, MUNDIKOOT HOUSE, T.C.V. BUS STOP, ANNUR P.O., ANNUR, TALIPARAMBA TALUK, KANNUR-670 307.

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BY ADV.SRI.P.B.AJOY.

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RESPONDENT/RESPONDENT/DECREE HOLDER:

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THAYAMBATH PADMANABHAN, S/O. JANAKI AMMA, AGED 58 YEARS, BUSINESS, PAYYANNUR AMSOM, DESOM, PAYYANNUR P.O., PAYYANNUR, TALIPARAMBA TALUK, KANNUR-670 307.

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BY ADV. SRI.T.K.VIPIN DAS.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs. 12/03/2018.

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CRP.No. 94 of 2018

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE A1	COPY OF THE ORDER DATED 02/09/2016 IN RCA NO.180/2013 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY.
ANNEXURE A2	COPY OF THE ORDER DATED 07/12/2017 IN RCR NO.234/2017 OF THE HONOURABLE HIGH COURT OF KERALA.
ANNEXURE A3	COPY OF THE AFFIDAVIT AND PETITION IN EA. NO.24/2018 IN EP. NO.9/2017 ON THE FILES OF THE MUNSIFF COURT, PAYYANNUR.
ANNEXURE A4	COPY OF THE OBJECTION FILED BY RESPONDENTS IN EA. NO.24/2018 IN EP. NO.9/2017 ON THE FILES OF THE MUNSIFF COURT, PAYYANNUR.

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RESPONDENT'S ANNEXURES: NIL.

//TRUE COPY//

P.S. TO JUDGE

rs. 12/03/2018.

ALEXANDER THOMAS, J.

C.R.P.No.94 Of 2018

Dated this the 7th day of March, 2018.

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The prayers in this Civil Revision Petition are as follows:

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“................... to set aside the order dated 24/02/2018 in E.A.No.24/2018 in E.P.No.9/2017 of the Munsiff Court, Payyannur and allow E.A.No.24/2018 in E.P.No.9/2017 of the Munsiff Court, Payyannur.”

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Heard Sri.P.B.Ajoy, learned counsel for the revision

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petitioners/judgment debtors and Sri.T.K.Vipindas, learned counsel for the respondent-decree holder.

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The revision petitioners herein are the judgment debtors/tenants, who have filed Anx.A-3 E.A.No.24/2018 under Sec.47 of the Code of Civil Procedure. The petitioners' contention is that the rent control order of eviction is not executable as there is no wall separating the petition schedule room and the other room occupied by the petitioner herein.

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It is alleged by the petitioners that specific case of the respondent/landlord that the wall separating the two rooms was demolished by the petitioner has been rejected by the revisional court in the original proceedings and that the Execution Court has

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C.R.P.No.94 Of 2018

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now dismissed the Sec.47 C.P.C petition without giving the petitioner an opportunity to adduce evidence, etc. The impugned order dated 24.2.2018 rendered by the Munsiff's Court, Payyannur, in E.A.No.24/2018 in E.P.No.9/2017 reads as follows:

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“O R D E R

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This is a petition filed under Section 47 r/w Section 151 CPC.

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Counter filed. Heard. As from the petitioner it is seen that the averment that the order of Hon'ble High Court is not executable U/s 11(4) (ii) is admitted. But as per the order of Hon'ble High Court the eviction is granted on the ground U/s 11(2)(b) and 11(3). As this petition is filed to delay the proceeding only, I am of view this petition is to be dismissed. Hence dismissed in the interest of justice.”

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respondent/decree holder would submit that as per the order of this Court, eviction has been ordered under Sec.11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 and that Anx.A-2 order dated 7.12.2017 passed by this Court in R.C.R.No.234/2017 is executable. It has been held by this Court in para 21 of Anx.A-2 order dated 7.12.2017 in R.C.R.Nos.160 & 234 of 2017 as follows:

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“21. Coming to Ext.A1, it is true that in Ext.A1 sale deed, a wall is seen shown as a southern boundary. Ext.A1 is a document executed by a third party to the landlord and as rightly observed by the Appellate Authority the tenants were not parties to the document. Merely on the reason that

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C.R.P.No.94 Of 2018

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Ext.A1 is a registered document, it cannot be said that the contents of Ext.A1 is genuine, unless it is proved by other evidence. Therefore, in the absence of any other evidence to prove the construction or existence of a wall, it cannot be held that such a wall was in existence and the same was removed. In the above analysis, we find that as rightly observed by the Appellate Authority, the landlord miserably failed to prove that the tenants have reduced the value and utility of the petition schedule building. Therefore, the findings of the Appellate Authority under section 11(4)(ii) declining order of eviction will stand confirmed. In the result:

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The order of eviction is granted under section 11(2)(b) and 11(3) of

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the Act

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The order of eviction under section 11(4)(ii) and (4) (iii) is declined.”

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It is further pointed out by the respondent that the Amin, who was deputed by the execution court, could not inspect the property as the petitioner used to close down shutter of the premises and leave it locked and the Amin was never in a position to see the premises and identify the property for the purpose of execution. Further the respondent has filed application before the execution court for breaking open the lock and to enable the Amin to visit and identify the premises in question. Further it is submitted by the respondent's counsel that though all these have been done at the stage of execution, the petitioner has shifted from the present room to the adjacent room irrespective as to whether there is wall separating the two. Merely due to the alleged absence of the wall

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::4::

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C.R.P.No.94 Of 2018

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between the rooms in question is not a ground to contend that the order of this Court is not executable. This Court would agree with the submission of the respondent. Moreover, discretionary remedy of this Court cannot be extended to a person like the petitioner who was not co-operating with the Execution Court to identify the property by the Amin. For these reasons, this Court is not inclined to allow the prayer of the petitioner by exercise of its extraordinary discretion conferred under Article 227 of the constitution of India.

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Accordingly, the Civil Revision Petition will stand dismissed.

Sd/-

ALEXANDER THOMAS,

Judge.

Bkn/-

// True copy //

P.A to Judge.

M.Shanta v. Thayambath Padmanabhan

Case brief

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M.Shanta v. Thayambath Padmanabhan

Case brief

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