_petitioner seeks writ of certiorari quashing execution order dismissing delivery petition. High Court held alternative statutory remedy of revision under Section 14 of Rent Control Act is available. Petitioner directed to avail revision.
Original petition dismissed as not maintainable due to availability of alternative statutory remedy.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 3RD DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 O.P(RC)NO.27 OF 2022
AGAINST THE ORDER DATED 31.01.2022 IN EXECUTION PETITION NO.215 OF 2021 IN R.C.P 30 OF 2017 OF THE MUNSIFF'S COURT,
THALIPARAMBA
PETITIONER/PETITIONER:
DR.SHEELA NAYANAR AGED 71 YEARS D/O.DAMODARAN NAYANAR, NAYANAR HOUSE, COURT ROAD, THALIPARAMBA AMSOM DESOM , THALIPARAMBA P.O - 670 141 BY ADVS. ZAKEER HUSSAIN K.A.SANJEETHA
RESPONDENT/RESPONDENT:
M.M.BABY AGED 54 YEARS S/O.MATHEW. BUSINESS, VELIYATH HOUSE, RESIDING AT VELLIKKEEL ROAD JUNCTION, PATTUVAM AMSOM DESOM, P.O ARIYIL (VIA) THALIPARAMBA - 670 143 BY ADVS. MATHEW KURIAKOSE G.GIREESH
THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 27.07.2022, THE COURT ON 03.08.2022 DELIVERED THE FOLLOWING:
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J U D G M E N T
Ajithkumar, J
This original petition is filed by the petitioner in R.C.P No.30
of 2017 on the file of the Rent Control Court (Munsiff), Thaliparamba. She filed E.P No.215 of 2021 seeking delivery of the petition schedule building in execution of order dated 08.02.2021 in R.C.P No.30 of 2017. E.P was dismissed by the Execution Court (Munsiff), Thaliparamba as per the order dated 31.01.2022. Challenging that order, the petitioner is before this Court with this original petition filed under Article 227 of the Constitution of India.
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before the learned mediator on 27.01.2020. The Rent Control Court on recording the mediation agreement allowed the Rent Control Petitions in terms of the mediation agreement. The Rent
Control Court directed in the common order dated 08.02.2021, Ext.P1 as follows:
“5. The Rent Control Petitions are allowed in terms of the mediation agreement. The respondent shall vacate the petition schedule building on or before 31.03.2024. Mediation agreement shall form part of the order. No costs.”
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eviction under 11(2)(b) of the Act obliging the respondent to surrender vacant possession of the petition schedule building. Defaulting payment of rent for one month, at any rate, is not a reason for ejectment of the respondent in the execution of Ext. P1. An order of eviction on the ground of arrears of rent is subject to the provisions of Section 11(2)(c) of the Act. The terms of Ext.P2 agreement do not amount to an order under section 11(2)(b) of the Act, and it maximum gives a cause of action for the petitioner to file a petition for eviction on the ground of arrears of rent even prior to the appointed date of 31.03.2024 for surrendering possession of the building. Accordingly, the respondent sought to dismiss the Execution Petition.
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premises and the order of eviction as per Ext.P1 would take effect from its date namely, 08.02.2021. Therefore it is contended that the Execution Court went totally wrong in holding that only if a fresh order under Section 11(2)(b) of the Act is obtained, the petitioner can get vacant possession of the building.
of the rent for that month was mercilessly declined by the petitioner with a further action of filing the execution petition. It is contended that the intent of clause 6 in Ext.P2 is only to ensure the cause of action for eviction in the event of default in payment of rent before 31.03.2024, the date appointed for surrendering vacant possession of the petition schedule building. The learned counsel also would contend that this original petition under Article
227 of the Constitution of India is not maintainable since the
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alternative remedy of revision under the proviso to Section 14 of the Act is available to the petitioner.
[2000(7) SCC 695] the Apex Court held that though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of statutory remedies before he resorts to a Constitutional remedy.
Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others [2019 (9) SCC 538] explained the principle further. It was held that it is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. On the facts of that case it was further held that the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same.
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for approaching this court without resorting to the statutory remedy. Hence we hold that this original petition is not maintainable and the remedy of the petitioner is to file a revision
under the proviso to Section 14 of the Act if she so proposes. In view of that matter, we do not propose to consider the rival contentions on the merits of the matter.
We, therefore, dismiss this original petition, leaving open the
legal and factual contentions of the parties.
Sd/-
ANIL K.NARENDRAN
JUDGE
Sd/-
P.G. AJITHKUMAR JUDGE
PV
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APPENDIX OF OP (RC) 27/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 08-02-2021 PASSED IN RCP NO. 30/2017 OF THE RENT CONTROL COURT (MUNSIFF) THALIPARAMBA Exhibit P2 TRUE COPY OF THE MEDIATION AGREEMENT DATED 27-01-2020 Exhibit P3 TRUE COPY OF THE EXECUTION PETITION NO. 215/2021 DATED 11-08-2021 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT,THALIPARAMBA Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 29-11-2021 IN E.P NO 215/2021 IN RCP NO. 30/2017 Exhibit P5 TRUE COPY OF THE CALCULATION STATEMENT FILED BY THE PETITIONER IN EP NO 215/2021 Exhibit P6 TRUE COPY OF THE ORDER DATED 31-01-2022 IN E.P NO 215/2021 IN RCP NO. 30/2017 OF THE MUNSIFF COURT, THALIPARAMBA RESPONDENT'S EXHIBITS Exhibit R1(a) TRUE COPY OF THE LEASE DEED DATED 25.11.2014 ENTERED INTO BY THE PETITIONER AND THE RESPONDENT Exhibit R1(b) TRUE COPY OF THE REPRESENTATION DATED 09.06.2021 SEND BY THE RESPONDENT TO THE PETITIONER Exhibit R1(c) TRUE COPY OF THE REPLY DATED 11.06.2021 ISSUED BY THE PETITIONER TO THE RESPONDENT Exhibit R1(d) TRUE COPY OF THE LAWYER NOTICE DATED 23.07.2021 ISSUED BY THE PETITIONER'S COUNSEL TO THE RESPONDENT Exhibit R1(e) TRUE COPY OF THE REPLY NOTICE DATED 03.08.2021 ISSUED BYTHE RESPONDENT'S COUNSEL TO THE PETITIONER'S COUNSEL
3 issues framed by the court
Whether the High Court should entertain a writ petition under Article 227 when an alternative statutory remedy of revision exists.
Whether an execution petition was maintainable for delivery of possession based on a settlement agreement containing a payment default clause.
Whether the petitioner availed the statutory remedy of revision before approaching the High Court for supervisory jurisdiction.
Colour shows how this judgement treated each authority
A.Venkatasubbiah Naidu v. S.Chellappan & ors.Referred¶43
A.Venkatasubbiah Naidu v. S.Chellappan & ors. [2000(7) SCC 695] · Who else cites this
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and othersReferred¶45
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others [2019 (9) SCC 538]
2 provisions across 2 enactments
DR.SHEELA NAYANAR
M.M.BABY
ANIL K.NARENDRAN
P.G. AJITHKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
