Remanded

Baiju v. Nazimudheen

Kerala HC10 Feb 2020OP (RC)/203/2019

Case brief

AI extract

What is this about?

Holding that an original petition under Article 227 of the Constitution is maintainable to prevent failure of justice when the Appellate Authority was impeded. This Court directed the Appellate Authority to dispose the pending appeal within three weeks and stayed further proceedings. The key of the shop was ordered to be kept in the Rent Control Court until the appeal was decided.

What did the court decide?

The appeal to the Appellate Authority must be disposed of within three weeks; keys deposited with this Court transmitted to the Principal Munsiff's Court; status quo maintained for three weeks.

Baiju Vs Nazimudheen — Landlord and Tenant | Kerala HC (2020)

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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 A.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941

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OP (RC).No.203 OF 2019

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AGAINST THE ORDER/JUDGMENT IN RCA 26/2019 OF DISTRICT COURT & SESSIONS COURT,TRIVANDRUM

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PETITIONER/3rd RESPONDENT:

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BAIJU, AGED 54 YEARS, S/O.GOPINATHAN, SAJI MANDIRAM, ARASUPARAMBU,NEDUMANGAD VILLAGE, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541

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BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR

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RESPONDENTS/PETITIONER-RESPONDENTS 1 AND 2:

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1 NAZIMUDHEEN, AGED 28 YEARS S/O. SALAHUDHEEN,NAJEEMA MANZIL,THUMBODU, NEDUMANGAD VILLAGE, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541

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2 SAJI,AGED 50 YEARS, S/O.GOPINATHAN, SAJI MANDIRAM, ARASUPARAMBU,NEDUMANGAD VILLAGE, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541

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3 ANI, AGED 53 YEARS, S/O.GOPINATHAN, SAJI MANDIRAM, ARASUPARAMBU,NEDUMANGAD VILLAGE, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541

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R1 BY ADV. SRI.ABDUL RAOOF PALLIPATH R1 BY ADV. SRI.SALIM V.S. R1 BY ADV. SRI.K.R.AVINASH (KUNNATH)

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THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (RC).No.203 OF 2019 2

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JUDGMENT

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A.HARIPRASAD,J.

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Heard the learned counsel for the petitioner and first respondent.

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Petitioner is the 3^rd respondent in R.C.P. No.2/2018 before the Rent Control Court, Nedumangadu. First respondent/landlord filed an eviction petition urging a ground under Section 11(3) of the Kerala Building(Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') .

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Admittedly, the petitioner's father was a tenant under the landlord. Petitioner contended that after the death of his father, he became the tenant of the petition schedule shop room. The plea of denial of title of the 1^st respondent over the building raised by the petitioner was found against and an appeal filed against that order is still pending.

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Ext.P1 is the copy of the eviction petition filed under Section 11(3) of the Act. Ext.P2 is the copy of the objection filed by the petitioner in the eviction petition. It is seen from the records that the petitioner remained absent from the Rent Control Court and the eviction petition was allowed ex parte on 27.07.2019. Ext.P3 is the order of eviction passed against the

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OP (RC).No.203 OF 2019 3

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petitioner on the said date. Thereafter, the petitioner filed Ext.P4 application as I.A. No.4370/2019 on 20.08.2019 to set aside the ex parte order of eviction. Ext.P4 was dismissed on 16.11.2019. Learned counsel for the petitioner submitted that the petitioner applied for a certified copy of the ex parte order of eviction and obtained the certified copy on 25.11.2019. An appeal was filed against the ex parte order of eviction before the appellate authority on 27.11.2019. Ext.P6 is the memorandum of appeal. The appeal was filed with a delay of 93 days. The appellate court is yet to decide the merits of delay condonation petition as well as the appeal.

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Grievance of the petitioner is that in the meantime,

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the first respondent filed E.P.No.113/2019 in R.C.P. No.2/2018 before the Munsiff's Court, Nedumangad. Ext.P9 is the copy of the execution petition. In that matter, though the petitioner appeared and contested, the execution petition was allowed in favour of the 1^st respondent by ordering eviction of the petitioner from the tenanted room with police assistance. This order was passed on 30.11.2019. The order reads as follows:-

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'' DH represented. Amin filed report stating that petition scheduled shop room is locked. Amin is hereby authorized to break open shop room if it remains locked. SHO concerned is directed to provide

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OP (RC).No.203 OF 2019 4

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adequate protection to execute the order. E.A.346/19 dismissed. For report 04.12.2012.''

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The execution court adjourned the case to

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04.12.2012. In the meantime, the petitioner filed this Original Petition on 02.12.2019, seeking an urgent relief of stay of further delivery proceedings in E.P. No.133/2019 in R.C.P. No.2/2018 before the Munsiff's Court, Nedumangadu. In that matter, an interim order was passed in favour of the petitioner

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on 02.12.2019 itself. The order reads as follows:-

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'' Admit. Issue notice by special messenger. There shall be an interim order of stay of all further proceedings in E.P. No.113/2019 in R.C.P. No.2/2018 on the file of the Rent Control Court (Principal Musniff's Court) Nedumangad for a period of two weeks.

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Registry shall communicate the order to the Rent Control Court, Nedumangadu (Principal Munsiff's Court).''

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It is the case of the petitioner that despite

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communicating the order, the 1^st respondent by exerting undue influence on the Amin deputed from the court below, created records to the effect that the delivery was effected at 11 a.m on 02.12.2019, with a view to circumvent the stay order passed by this Court. It is the case of the petitioner that his meritorious claim was not considered by the court below and

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OP (RC).No.203 OF 2019 5

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therefore he suffered prejudice.

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Learned counsel for the 1^st respondent opposed the application contending that at all stages of the litigation the petitioner was lethargic and he has no bona fides . He did not produce any material before the execution court to show that he has a genuine claim over the building. When he put up resistance to the delivery ordered by the court below, an Amin had to be deputed with police assistance. Amin had discharged his duty properly and the articles, said to be belonging to the petitioner are kept inside the room, safely locked. Amin had handed over key to the Decree Holder. As directed by this Court, the first respondent has produced the key of the building before this Court. According to learned counsel for the 1^st respondent, Original Petition itself is not maintainable since the only remedy available to the petitioner was to approach the revisional court as provided in the Proviso to Section 14 of the Act.

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It is clear that there were latches on the part of the petitioner in contesting the case. Learned counsel for the petitioner contended that his application to set aside ex parte order of eviction was dismissed by the Rent Control Court

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OP (RC).No.203 OF 2019 6

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relying on the decision in RATHEESH V. A.M.CHACKO and

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Another [2018 (5) KHC 35]. However, a Bench of this Court, doubting correctness of the said decision, referred the matter, which is now pending consideration of a larger Bench. While referring the matter, in Faisal V. Vikas Chacko [2019(3) KLT 760], this Court has held that the Rent Control Appellate authority is not a persona designata as it is manned by a District Judge and therefore all the powers available under Section 5 of the Limitation Act are available to District Judge while exercising functions of the appellate authority under Section 18 of the Act.

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The appeal filed by the Petitioner is pending before

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the court below and we do not intend to make any comment regarding the merits of the appeal as that has to be decided by the appellate court itself.

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Learned counsel for the 1^st respondent relying on various provisions on the Code of Civil Procedure,1908 (in short ''Code'') contended that Amin is perfectly justified in executing the order of eviction as directed by the court below. According to him, the provisions under Section 74 and Order XXI Rule 35 of the Code enable the court to remove resistance

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OP (RC).No.203 OF 2019 7

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in an appropriate case.

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In answer to this argument, learned counsel for the petitioner relying on Rule 349 of the Civil Rules of Practice contended that Amin in this case has acted without any authority and his action was in utter disregard of the statutory mandate. Rule 349 reads as follows:-

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'' 349. Delivery of house or building locked up :-

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(1) When a house or building ordered to be delivered is locked up and the person in charge of the same cannot be found, or refuses to open the same, the Court may empower the Amin to break open the lock and execute the warrant for delivery.

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(2) If any articles are found in the house at the time of delivery the Amin shall prepare an inventory of the same in the presence of two respectable witnesses whose attestation shall be taken and take the articles to the Court. Any sum required for the purpose shall be paid at the spot by the person to be put in possession to the Amin before delivery is effected and he shall be entitled to realise the same from the judgment-debtor before the articles are released to the latter by the Court.

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(3) If the sum is not paid as aforesaid to the Amin, he shall re-lock and seal the house or building, and produce the key in Court with his report.''

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13. It is the case of the petitioner that he is running a

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tailoring shop. Merchandise belonging to various customers

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given for stitching are kept in the room. Besides, his sewing

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OP (RC).No.203 OF 2019 8

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machines and other equipments are also available. According to him, the commodities worth lakhs of rupees are locked up. Further, his customers are angry because he is not able to return their clothes either stitched or unstitched. It is the case of the petitioner that Amin should not have handed over key of the room to the decree holder without complying with the provisions under Sub Rule (2) of Rule 349 of the Civil Rules of Practice. Amin, in a haste and under pressure from the Decree Holder, wrongly handed over key of the room to the 1^st respondent in utter disregard to the statutory provisions and therefore the petitioner suffered prejudice.

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After hearing learned counsel on both sides, we are of the view that merit of the petitioner's claim has to be decided in the appeal, pending before the Rent Control Appellate Authority as mentioned above. We are not impressed about the contentions raised by the learned counsel for the 1^st respondent that the provisions in Rule 349 of Civil Rules of Practice are intended for convenience only. We have no hesitation to hold that the provisions in Rule 349 Civil Rules of Practice has to be complied with by the court below as well as by the officers deputed from the Court to execute the decree

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OP (RC).No.203 OF 2019 9

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in letter and spirit. Legal rights about valuable properties cannot be left to be decided by Amins, who are only entrusted with the duty of executing the decree. Therefore, if Amin had not complied with the statutory provisions as above, we deprecate his acts in strong words and we leave it open to the disciplinary authority concerned, to take appropriate action, if he had violated any statutory provisions.

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There is a valid contention raised by learned counsel for the 1^st respondent that the remedy of the appellant is to file a revision under Section 14 of the Act and not an original petition under Article 227 of the Constitution of India. Going by the letter of law, this contention is proper. But, in the context of the facts and circumstances of this case, we are of the view that unless we deal with the matter by invoking the supervisory jurisdiction under Article 227 of the Constitution of India, there would be failure of justice. This Court cannot be a spectator to the illegal activities on the part of the authorities or on the part of the officers working on the execution side.

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OP (RC).No.203 OF 2019 10

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Having regard to the entire facts and

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circumstances, following directions are issued:

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(i) The Rent Control Appellate Authority, where the appeal is pending, shall dispose of Ext.P6 appeal within three weeks from the date of receipt of a copy of this judgment, untrammeled by any of the observations and in accordance with law.

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(ii) In the mean time, Key deposited by the 1^st respondent before this Court shall be transmitted and kept in the Principal Munsiff's Court, Nedumangadu where E.P. No.113/2019 in R.C.P. No.2/2018 is pending.

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(iii) We hereby direct the parties to maintain status quo for a period three weeks.

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The original petition is disposed of, accordingly.

Sd/-

A.HARIPRASAD

JUDGE

Sd/-

N.ANIL KUMAR

JUDGE

ajt

OP (RC).No.203 OF 2019 11

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE PETITION IN R.C.P.NO.2
	OF 2018 ON THE FILES OF THE RENT CONTROL
	COURT (PRINCIPAL MUNSIFFS COURT),
	NEDUMANGAD

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EXHIBIT P2	A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN,IN R.C.P.NO.2 OF 2018 ON THE FILES OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF'S COURT), NEDUMANGAD
EXHIBIT P3	A TRUE COPY OF THE ORDER DATED 27.07.2019 IN R.C.P.NO.2 OF 2018 ON THE FILES OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFFS COURT), NEDUMANGAD
EXHIBIT P4	A TRUE COPY OF THE I.A 4370 OF 2019 IN R.C.P.NO.2 OF 2018 ON THE FILES OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFFS COURT), NEDUMANGAD
EXHIBIT P5	A TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT HEREIN TO IA 4370 OF 2019 IN R.C.P.NO.2 OF 2018 ON THE FILES OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF'S COURT), NEDUMANGAD
EXHIBIT P6	A TRUE COPY OF THE APPEAL MEMORANDUM IN R.C.A. NO.26 OF 2019 ON THE FILES OF THE RENT CONTROL COURT APPELLATE AUTHORITY, THIRUVANANTHAPURAM
EXHIBIT P7	A TRUE COPY OF IA NO 3091 OF 2019 IN R.C.A. NO.26 OF 2019 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY THIRUVANANTHAPURAM
EXHIBIT P8	A TRUE COPY OF IA NO.3092 OF 2019 IN R.C.A. NO;26 OF 2019 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM
EXHIBIT P9	A TRUE COPY OF THE E.P. NO.113 OF 2019 IN R.C.P.NO.2 OF 2018 ON THE FILES OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF'S COURT), NEDUMANGAD

Baiju v. Nazimudheen

Case brief

What is this about?

What did the court decide?

Baiju v. Nazimudheen

Case brief

What is this about?

What did the court decide?

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