Partly allowed

P.E.Thomas v. Abraham Jose Rockey

Kerala HC12 Mar 2024OP(C)/1223/2021

Case brief

AI extract

What is this about?

The High Court set aside a lower court's order that allowed a commission application for a site sketch as unrelated to the main suit relief, and instead allowed a receiver application directing tenants to deposit rent arrears in court while the validity of the landlord's sale deed is adjudicated.

What did the court decide?

Extension of Ext.P7 (Commission application) disallowed; Ext.P9 (Receiver application) allowed with direction to deposit rent arrears in court pending suit determination.

P.E.Thomas Vs Abraham Jose Rockey — Landlord and Tenant | Kerala HC (2024)

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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 C. JAYACHANDRAN

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TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945

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OP(C) NO. 1223 OF 2021

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IN OS NO.11 OF 2018 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB

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COURT/COMMERCIAL COURT, KOCHI

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PETITIONERS/RESPONDENTS 1 TO 3 IN I.A./PLAINTIFFS:-

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1 MR.P.E.THOMAS, AGED 64 YEARS, S/O.EACEY, PAREMURI HOUSE, AROOR P.O., AROOR VILLAGE, AROOR, ALAPPUZHA-688 534.

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2 MR.S.SASANGAN, S/O. SIVARAMAN AGED 52 YEARS, X/1562, THAMARAPARAMBU, KOCHI P.O., FORT KOCHI VILLAGE, KOCHI-682 501.

¶11

3 MR.SUNNY L. MALAYIL, S/O.M.L.LEWIS, AGED 50 YEARS, XV/151 D, CHESSY ROAD, MUNDAMVELI.P.O., RAMESWARAM VILLAGE, KOCHI-682 507.

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BY ADVS.

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C.R.SYAMKUMAR
SOORAJ T.ELENJICKAL
P.A.MOHAMMED SHAH
ASWIN KUMAR M. J.
HELEN P.A.
ARUN ROY

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RESPONDENTS/PETITIONER & RESPONDENTS 4 & 5 IN I.A./DEFENDANTS:

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1 MR.ABRAHAM JOSE ROCKY AGED 33 YEARS, S/O.ROCKY CHANDY NEROTH, NEROTH HOUSE, K.P.VALLON ROAD, KADAVANTHRA P.O., KADAVANTHRA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682 020.

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2 MRS.QUEENIE HALLEGUA @ QUEENIE SAMY HELLEGUA, W/O. LATE SAMUEL HALLEGUA, AGED 82 YEARS, RESIDING AT C.C 6/197, SYNAGOGUE LANE, MATTANCHERY P.O., RAMESWARAM EAST DESOM, MATTANCHERY VILLAGE, KOCHI TALUK, ERNAKULAM-682 002.

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3 MRS. JULIET HALLEGUA W/O. LATE JOSEPH HALLEGUA, AGED 82 YEARS, RESIDING AT C.C 6/200, SYNAGOGUE LANE, MATTANCHERY P.O., RAMESWARAM EAST DESOM, MATTANCHERY VILLAGE, KOCHI TALUK, ERNAKULAM-682 002.

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BY ADVS.

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K.P.SREEKUMAR

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DINESH MATHEW J.MURICKEN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024,

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ALONG WITH OP(C).1353/2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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O.P.(C).Nos.1223 & 1353 OF 2021

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..2..

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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 C. JAYACHANDRAN

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TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945
OP(C) NO. 1353 OF 2021

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IN OS NO.11 OF 2018 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB
COURT/COMMERCIAL COURT, KOCHI

¶30

PETITIONER/PETITIONER:

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ABRAHAM JOSE ROCKEY,
AGED 36 YEARS, S/O.ROCKEY CHANDY NEROTH,
NEROTH HOUSE, K.P.VALLON ROAD, KADAVANTHARA P.O.,
KADAVANTHARA DESOM, ELAMKULAM VILLAGE, KANAYANNUR
TALUK, ERNAKULAM-682 020.

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BY ADV K.P.SREEKUMAR

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RESPONDENTS/RESPONDENTS:

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1 P.E.THOMAS, AGED 64 YEARS, S/O.EACEY, PAREMURI HOUSE, AROOR P.O., AROOR VILLAGE, AROOR, ALAPPUZHA - 688 534.

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2 S.SANGAN, S/O.SIVARAMAN, AGED 52 YEARS, X/1562, THAMARAPARAMBU, KOCHI P.O., FORT KOCHI VILLAGE, KOCHI-682 501.

¶36

3 SUNNY L. MALAYIL, S/O.M.K.LEWIS, AGED 50 YEARS, XV/151D, CHESSY ROAD, MUNDAMVELI P.O., RAMESWARAM VILLAGE, KOCHI-682 507.

¶37

4 MRS.QUEENIE HALLEGUA @ QUEENIE SAMY HALLEGUA, W/O.LATE SAMUEL HALLEGUA, AGED 82 YEARS, RESIDING AT CC.6/197, SYNAGOGUE LANE, MATTANCHERY P.O., RAMESWARAM EAST DESOM, MATTANCHERY VILLAGE, KOCHI TALUK, ERNAKULAM-682 002.

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O.P.(C).Nos.1223 & 1353 OF 2021

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..3..

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5MRS.JULLET HALLEGUA,
W/O. LATE JOSEPH HALLEQUA, AGED 83 YEARS, RESIDING AT
CC.6/200, SYNAGOGUE LANE, MATTANCHERY P.O., RAMESWARAM
EAST DESOM, MATTANCHERY VILLAGE, KOCHI TALUK,
ERNAKULAM-682 002.

¶41

BY ADVS.
C.R.SYAMKUMAR
DINESH MATHEW J.MURICKEN
P.A.MOHAMMED SHAH
ASWIN KUMAR M J
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI

¶42

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024,
ALONG WITH OP(C).1223/2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

¶43

O.P.(C).Nos.1223 & 1353 OF 2021

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J U D G M E N T

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Dated this the 12thday of March, 2024

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Both these Original Petitions arise from the suit,
O.S. No.11/2018, of the Subordinate Judge’s Court,
Kochi. O.P.(C)No.1223/2021 is preferred by the
plaintiffs in the suit, aggrieved by Ext.P11
order, to the extent it allows I.A.No.1/2020,
appointing a Commissioner. O.P.(C) No.1353/2021 is
preferred by the first defendant in the suit,
aggrieved by Ext.P3 order, which dismissed I.A.
No.2/2020 for appointment of a receiver; or
alternatively for a direction to deposit the rent
arrears in the court. Both these applications were
disposed of by virtue of the impugned common
order.

¶47

O.P.(C).Nos.1223 & 1353 OF 2021

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2. The basic facts to be taken note of are as follows:

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The plaintiffs in the suit [petitioners in O.P.(C)
No.1223/2021] were tenants, originally under a
Trust. The property including the tenanted
premises were transferred to the first defendant
in the suit [first respondent in O.P.(C)
No.1223/2021 and the petitioner in O.P.(C)

¶50

No.1353/2021]. The suit is one challenging the
said sale deed, on the premise that a Trust

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property cannot be sold to the first defendant in

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the suit and for a declaration that the sale deed

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is void ab initio. In the suit, two interlocutory
applications were preferred vide Exts.P7 and P9,

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both by the first respondent in the suit, the
former seeking appointment of an Advocate
Commissioner to prepare a sketch showing the area

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occupied by the first defendant and the respective
areas occupied by the tenants including the
plaintiffs; and the latter – Ext.P9 -, for

¶56

O.P.(C).Nos.1223 & 1353 OF 2021

¶57

appointment of a receiver in the context of
collection of rents or in the alternative to
deposit the rent arrears in the court. By virtue
of the impugned common order, Ext.P7 application

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was allowed and Ext.P9 was dismissed. The
plaintiffs in the suit assails Ext.P7 being
allowed and the first defendant assails Ext.P9

¶59

being dismissed.

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3. Heard the learned counsel appearing for the

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respective parties.

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4.Having heard the learned counsel appearing for
the respective parties, this Court is not in a
position to uphold the impugned common order,
which allowed Ext.P7 application for appointment
of Advocate Commissioner. This Court notice that

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the suit is one for a declaration that the sale
deed is void ab initio, instituted at the instance
of three tenants in the premises. There is no

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O.P.(C).Nos.1223 & 1353 OF 2021

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reason, whatsoever, specifically stated in Ext.P7
application, as to why a Commission has to be
issued and why a sketch showing the area occupied
by the first defendant/owner and those occupied by

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the tenants, is required to be drawn up. The
prayer sought for vide Ext.P7 appears to be
completely unconnected with the main relief sought

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for in the suit. The finding of the learned Sub
Judge that it will not cause any harm to anybody,
is no reason to allow a Commission application. It

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has to be borne in mind that a Commission for
local inspection is allowed, by recognising the
status of the Commissioner as an officer of the
court and to bring before the Court the state of
affairs prevailing in the locality, which is
revealed by a local inspection, so as to enable
the court to render a judgment in a satisfactory

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manner. Needless to say that such an application
should have a proximate connection with the scope
of the suit, especially the relief sought for

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O.P.(C).Nos.1223 & 1353 OF 2021

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therein. In the circumstances, the impugned common
order in so far it allows Ext.P7 Commission
application cannot be sustained and the same will
stand set aside.

¶72

5. Coming to the impugned common order, which

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dismissed Ext.P9, here again, this Court is not in
a position to approve the course adopted by the
learned Sub Judge. It may be true that the request
for appointment of a receiver is not fully well

¶74

conceived, since the same was sought for
collection of rent only. However, the finding
based on the contention raised by respondents 1 to
3 in O.P.(C) No.1353/2021, that for recovering
arrears of rent, the landlord will have to
institute a fresh suit and such a relief cannot be
secured in a suit preferred by the tenants, etc.,

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cannot be countenanced. It is one thing to be
noted that the suit has been instituted by three
among the tenants challenging a sale deed in

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O.P.(C).Nos.1223 & 1353 OF 2021

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..9..

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favour of the first defendant in the suit.
Therefore, the status of plaintiffs as tenants of
the buildings is admitted, wherefore, it goes
without saying that the tenants cannot aspire to
continue in the premises without paying the agreed
rent. If it is a case where the tenants are
disputing the competence of the person, who is
entitled to receive the rent, the same may be
justified, as long as the tenants express their
desire to pay the rent as per the directions of

¶79

the court or to deposit such rent before the
court. However, a stand that for recovering rent,
a separate suit has to be instituted, etc.,
appears to be far fetched, which is also against
the fundamental obligation of a litigant to
prosecute a case, admitting his status as a
tenant. Learned counsel for the petitioner in O.P.
(C) No.1223/2021 would invite the attention of
this Court to Ext.P10 objection, wherein the
tenants/plaintiffs have categorically stated that

¶80

O.P.(C).Nos.1223 & 1353 OF 2021

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they are prepared to pay the rent, as and when
directed by the trial court. Since there is a
dispute with respect to the competence of the
landlord, let the rent arrears be deposited before
the court, so that the amount can be appropriately
released to the landlord, who is ultimately found
entitled and eligible, based on the outcome of the
subject suit.

¶82

6.In the circumstances, the impugned common

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order is set aside. Ext.P7 I.A.No.1/2020 will
stand disallowed. Ext.P9 I.A.No.2/2020 will stand
allowed in respect of the alternative prayer, with
a direction to the tenants/plaintiffs to deposit
the rent arrears before the trial court and with a
further direction to continue to deposit such rent
during the pendency of the suit.

¶84

The Original Petitions are disposed of as above.

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O.P.(C).Nos.1223 & 1353 OF 2021

¶86

Learned counsel for the petitioner in O.P.(C)
No.1353/2021 expressed an apprehension that a
commission application may be required to be filed
in future during the pendency of the suit and the
observations made by this Court may stand in his
way. This Court will clarify that such commission
application, if any, filed will be decided
independently by the trial court on merits; and
not influenced by the observations made by this
Court in this judgment. It is further directed
that the arrears of rent shall be deposited before
the court on or before 8th April, 2024.

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 Sd/-

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C. JAYACHANDRAN
JUDGE

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Skk//18.03.2024

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O.P.(C).Nos.1223 & 1353 OF 2021

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..12..

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APPENDIX OF OP(C) NO.1353/2021

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PETITIONER’S EXHIBITS:-

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`EXHIBIT P1`	`TRUE COPY OF`	`THE IA NO.2/2020 IN`
	`O.S.NO.11/2018` `BEFORE THE SUB CO`	`DATED 3.1.2020 FILED` `URT, KOCHI`
`EXHIBIT P2`	`TRUE COPY OF THE` `BY RESPONDENTS 1`	`COUNTER AFFIDAVIT FILED` `TO 3 DATED 8.1.2020 IN`
	`I.A.NO.2/2020 IN`	`O.S.NO.11/2018.`
`EXHIBIT P3`	`TRUE COPY OF THE`	`ORDER DATED 8.7.2021 IN`
	`I.A.NO.2/2020 IN` `SUB COURT, KOCHI.`	`O.S.NO.11/2018 OF THE`

¶95

O.P.(C).Nos.1223 & 1353 OF 2021

¶96

..13..

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APPENDIX OF OP(C) NO.1223/2021

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PETITIONERS’ EXHIBITS:-

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`EXHIBIT P1`	`TRUE COPY OF THE PLAINT IN OS NO.11/2018`
	`OF THE SUBORDINATE JUDGE, KOCHI DATED` `01.03.2018`
`EXHIBIT P2`	`TRUE COPY OF THE TRUST DEED 96/2011 OF` `KOCH SRO DATED 30.03.2011`
`EXHIBIT P3`	`TRUE COPY OF SALE DEED 2088/2017 OF` `KOCHI SRO DATED 05.07.2017`
`EXHIBIT P4`	`TRUE COPY OF THE WRITTEN STATEMENT FILED` `BY THE 1ST DEFENDANT DATED 08.07.2019`
`EXHIBIT P5`	`TRUE COPY OF THE WRITTEN STATEMENT FILED` `BY THE 2ND DEFENDANT DATED 08.07.2019`
`EXHIBIT P6`	`TRUE COPY OF THE WRITTEN STATEMENT FILED` `BY THE 3RD DEFENDANT DATED 04.08.2019`
`EXHIBIT P7`	`TRUE COPY OF IA 1/2020 FILED BY THE 1ST` `RESPONDENT DATED 03.01.2020`
`EXHIBIT P8`	`TRUE COPY OF THE COUNTER AFFIDAVIT FILED`
	`BY THE PETITIONERS IN IA 1/2020 DATED` `08.01.2020`
`EXHIBIT P9`	`TRUE COPY OF IA 1/2020 FILED BY THE 1ST` `RESPONDENT DATED 03.01.2020`
`EXHIBIT P10`	`TRUE COPY OF THE COUNTER AFFIDAVIT FILED`
	`BY THE PETITIONERS IN IA 2/202 DATED` `08.01.2020`
`EXHIBIT P11`	`TRUE COPY OF THE COMMON ORDER IN IA` `1/2020 AND IA 2/2020 DATED 08.07.021`

P.E.Thomas v. Abraham Jose Rockey

Case brief

What is this about?

What did the court decide?

P.E.Thomas v. Abraham Jose Rockey

Case brief

What is this about?

What did the court decide?

What the court decided

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