Allowed

P.V. Abdulla Haji v. Saji Chandroth

Kerala HC19 Nov 2018OP (RC)/159/2018

Case brief

AI extract

What is this about?

This judgment quashed an order dismissing an application seeking reliefs under Order 11 Rule 11 and Order 11 Rule 21 CPC simultaneously. The court remitted the matter for fresh consideration, holding that the relief under Rule 21 must await the decision on Rule 11 as they cannot be passed simultaneously.

What did the court decide?

Quashed impugned order dismissing application; remitted for fresh consideration under CPC Order 11 Rules; filed parties to appear by Dec 17, 2018.

P.V. Abdulla Haji Vs Saji Chandroth — Civil Procedure and Limitation | Kerala HC (2018)

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“CR”

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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.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

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OP (RC).No. 159 of 2018

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AGAINST THE ORDER/JUDGMENT IN RCP 60/2016 of MUNSIFF COURT, NADAPURAM DATED 17-10-2018

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PETITIONERS:

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1 P.V. ABDULLA HAJI, AGED 65 YEARS, S/O.ALI HAJI, SWASTHAM, PERUVAMVEETTIL, VALAYAM AMSOM, JATHIYERI DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.

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2 BIYYATHU CHAMKKALIL, AGED 57 YEARS, W/O. ABDULLA HAJI, PERUVAMVEETTIL HOUSE, VALAYAM AMSOM, JATHIYERI DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.

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BY ADV. SRI.R.K.MURALEEDHARAN

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RESPONDENTS:

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1 SAJI CHANDROTH, AGED 40 YEARS, S/O.ANDRU HAJI, BUSINESS, KUNNUMMAL AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT-673 101.

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2 MUHAMMED ALI CHANDROTH, AGED 43 YEARS, -DO -DO- PI-673 101

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3 ABDUL AFSAL, AGED 31 YEARS, S/O. ABDUL NAZAR, BUSINESS, KURUKUNIYIL HOUSE, NOW RESIDING AT CHAVELAKULANGARA HOUSE AROOR AMSOM, DESOM- DO-PIN 673 101

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OP (RC).No. 159 of 2018

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4 ISMAYIL P.P. AGED 36 YEARS, S/O. HASSAN HAJI, BUSINESS, PUTHANPURAYIL, VALAYAM AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT,PIN 673 101

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5 NASAR NELLOMKANDIYIL, AGED 42 YEARS, S/O. KUNHAMMED, BUSINESS, AROOR AMSOM, DESOM -DO-DO-PIN 673 101

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6 HYDER M.K., AGED 38 YEARS, S/O. AMMED, BUSINESS, MAMUNDANKANDY HOUSE, NARIPPATTA AMSOM, DESOM, -DO-DO-PIN 673 101

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7 ABDUL GAFOOR M.K. AGED 38 YEARS S/O POCKER HAJI, MADHUKUNNUMAL HOUSE, KUNNUMMAL AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT-673 101.

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8 KALARIKETTIYAPARAMBATH MARIYAM AGED 80 YEARS W/O MOOSSA, SWASTHAM, KUNNUMMAL AMSOM, DESOM, -DO-DO-PIN 673 101

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9 KALARIKETTIYAPARAMBATH SOUJA AGED 48 YEARS W/O ANDRU, -DO- -DO- PIN 673 101

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10 KALARIKETIYAPARAMBATH AJEER AGED 30 YEARS S/O ANDRU, -DO- -DO- PIN 673 101

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11 KALARIKETTIYAPARAMBATH MUHAMMED FASIL AGED 22 YEARS S/O ANDRU, -DO- -DO- PIN 673 101

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12 KAKALARIKETTIYAPARAMBATH MUHAMMED SHAHAL AGED 11 YEARS (MINOR), S/O ANDRU, -DO -DO-. PIN 673 101

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 19.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP (RC).No. 159 of 2018

“CR”

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JUDGMENT

K.HARILAL,J.

Heard the learned counsel for the petitioners and the learned counsel for the respondents.

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2. Coming to the instant case, going by the impugned order, it could be seen that the court below has dismissed I.A. No.492 of 2018 mainly on the ground that the reliefs under Order 11 Rule 11 and Order 11 Rule 21 of the Code of Civil Procedure,1908 (hereinafter referred to as 'the C.P.C.) were prayed for simultaneously in a single petition and an order under Order 11 Rule 21 of the C.P.C. can be passed, only after passing an order under Rule 11 of Order 11 of the C.P.C. and in the present petition both reliefs are prayed for simultaneously.

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OP (RC).No. 159 of 2018

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3. But, going by Ext.P8 application filed

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by the petitioners, it could be seen that the relief under Rule 21 of Order 11 of the C.P.C. was prayed for in alternative to the relief under Rule 11 of Order 11 of the C.P.C. and the petitioners have not prayed for both reliefs under both the provisions simultaneously. No doubt, it is also impermissible as the relief under Rule 21 can be granted after passing an order under Rule 11 of Order 11 of the C.P.C. Even if both the reliefs were prayed for simultaneously, the court below ought to have considered the relief under Rule 11 of Order 11 of the C.P.C. and dismissed the relief under Rule 21 of Order 11 of the C.P.C. Instead of it, the court below dismissed both. The court below is not justified in dismissing both the applications for the aforesaid reason only,

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OP (RC).No. 159 of 2018

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in view of the interest of justice.

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4. Where an application is filed, seeking

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two reliefs and both the reliefs cannot be considered together simultaneously, only one alone can be allowed or rejected, as the latter is consequent on the former and it can be considered subsequently only, it is just and proper to consider the first one and reject the other. It is not just or proper to dismiss both reliefs, merely on the reason that both reliefs are prayed for simultaneously in the same petition.

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5. Consequently, the impugned order would stand set aside and the application is remitted to the court below, for fresh consideration and disposal. The court below shall consider the relief under Order 11 Rule 11 of the C.P.C., if no order had been passed earlier under Order 11 Rule 11 of the C.P.C.

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OP (RC).No. 159 of 2018

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If any order had been passed earlier under Rule 11 of Order 11, the trial court can pass orders under Rule 21 of Order 11 of the C.P.C. The parties shall appear before the court below on 17^th December, 2018. The court below shall pass orders afresh, at the earliest, at any rate, within a period of three weeks from the date of their appearance.

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This O.P.(RC) is allowed accordingly.

Sd/-

K.HARILAL JUDGE

Sd/-

ANNIE JOHN

JUDGE

DST

OP (RC).No. 159 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE AGREEMENT DATED 15.05.2004
EXHIBIT P2	A TRUE COPY OF THE RCP NO. 60/2016 DATED 31.10.2016
EXHIBIT P3	A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS 9 TO 12
EXHIBIT P4	A TRUE COPY OF THE PETITION ALONG WITH AFFIDAVIT IN IA NO. 492/2018
EXHIBIT P5	A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS
EXHIBIT P6	A TRUE COPY OF THE ORDER IN IA NO. 492/2018 IN RCP NO. 60/2016 DATED 20.06.2018
EXHIBIT P7	A TRUE COPY OF THE AFFIDAVIT ALONG WITH THE ANSWERS SUBMITTED BY THE RESPONDENTS DATED 29.06.2018
EXHIBIT P8	A TRUE COPY OF THE IA NO. 584/2018 ALONG WITH AFFIDAVIT FIELD BY THE PETITIONER DATED 10.07.2018
EXHIBIT P9	A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT DATED 12.07.2018
EXHIBIT P10	A TRUE COPY OF THE ORDER IN IA NO. 584/2018 IN RCP NO. 60/2018 DATED 17.10.2018

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RESPONDENT'S EXHIBITS: NIL

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//TRUE COPY//

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P.A.TO JUDGE

P.V. Abdulla Haji v. Saji Chandroth

Case brief

What is this about?

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P.V. Abdulla Haji v. Saji Chandroth

Case brief

What is this about?

What did the court decide?

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