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 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
O.P RC) NO.15 OF 2021
PETITIONERS:
1 ABOOBACKER K. P.
AGED 78 YEARS
S/O.MUHAMMED, 'SAFIYA', POST KURICHIYIL,
THALASSERY - 670102. ADDL.P2 ADDED
2 C.K.DAILY WEAR
REP. BY ITS MANAGING PARTNER AACKU POYIL SHAKKIR,
S/O.ABOOBACKER K.P., AGED 40 YEARS, RESIDING AT
"SAFIYAS", POST KURICHIYIL, THALASSERY 670 102.
(ADDL.P2 ADDED)
(9TH RESPONDENT IN THE PETITION IS TRANSPOSED AND
SUBSTITUTED AS SECOND PETITIONER VIDE ORDER DATED
21.03.2022 IN IA NO.3/2022 IN OP(RC) 15/2021)
BY ADV.
JOE KALLIATH
RESPONDENTS:
1 MALLATTI RANDUPURAYIL MARIYU
AGED 57 YEARS
W/O. ABDUL MAJEED, HELNA, CHETTAMCOON P. O.,
THALASSERY - 670101.
2 SAJANA
AGED 39 YEARS
D/O.ABDUL MAJEED, HELNA, CHETTAMCOON P. O.,
THALASSERY - 670101.
3 SHAFANA
AGED 37 YEARS
2
O.P.(RC) No.15 of 2021
D/O. ABDUL MAJEED, HELNA, CHETTAMCOON P. O.,
THALASSERY - 670101.
4 FEBINA
AGED 35 YEARS
D/O.ABDUL MAJEED, HELNA, CHETTAMCOON P. O.,
THALASSERY - 670101.
5 HELNA
AGED 35 YEARS
D/O. ABDUL MAJEED, HELNA, CHETTAMCOON P. O.,
THALASSERY - 670101.
6 NESLE
AGED 31 YEARS
S/O. ABDUL MAJEED, HELNA, CHETTAMCOON P. O.,
THALASSERY - 670101.
7 C. P. ALUPPI
AGED 73 YEARS
S/O. KUNHIMOOSA, NEAR STAR HOTEL, M. G. ROAD,
THALASSERY - 670101.
8 C. K.P.M. SUHARA
AGED 50 YEARS
D/O. V. P. MUHAMMED, HEBEEBATH KAYYATH ROAD,
THALASSERY - 670101.
9 C. K. DAILY WEAR
REP. BY ITS MANAGING PARTNER AACKU POYIL
SHAKKIR, S/O. ABOOBACKER K. P., AGED 40 YEARS,
RESIDING AT 'SAFIYAS', POST KURICHIYIL,
THALASSERY - 670 102. 9TH RESPONDENT IN THE
PETITION IS TRANSPOSED AND SUBSTITUTED AS 2ND
PETITIONER VIDE ORDER DATED 21/03/2022 IN
IA.3/2022 IN PO(RC)15/2021.
BY ADVS.
SRI.PRANOY K.KOTTARAM
SMT.SHIFA LATHEEF
3
O.P.(RC) No.15 of 2021
K.K.NESNA
SRI.GEORGE MATHEWS
SRI.T.P.SAJID
SRI GRASHIOUS KURIAKOSE (SR)- RESPONDENT
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION
ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
4
O.P.(RC) No.15 of 2021
JUDGMENT
Ajithkumar, J.
The petitioner filed a claim petition as E.A.No.113 of 2020 in E.P.No.146 of 2019 in R.C.P.No.32 of 2015 before the Munsiff's Court (Execution Court), Thalassery. That petition was dismissed by the Execution Court on 11.01.2021. The petitioner has filed I.A.No.17 of 2021 before the Execution Court to restore the said claim petition. This original petition is filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking relief of directing the Execution Court to consider and pass appropriate orders on Ext.P6, E.A.No.17 of 2021 and also Ext.P1, the claim petition, E.A.No.113 of 2020.
2. The claim petition was filed by the 2 nd petitioner claiming that the partnership firm to which Mr.Shakkir and the 7th respondent are the partners is the actual tenant, but without giving any notice to the firm, respondents 1 to 6 obtained an order of eviction in R.C.P.No.32 of 2005 from the 5 O.P.(RC) No.15 of 2021 Rent Control Court (Munsiff), Thalassery. Only when the said order was put in execution, did the 2 nd petitioner come to know about the delivery proceedings and he immediately has filed E.A.No.113 of 2020. He was stranded abroad and was unable to come home due to the threat of COVID-19 pandemic. However, without considering that aspect, the Execution Court dismissed that claim petition. It was in the said circumstances, that the 1st petitioner who is the father of Mr.Shakkir had filed E.A.No.17 of 2021 seeking to restore the claim petition on file.
3. This original petition was filed by the father of Mr.Shakkir, who claims to be the managing director of the 9th respondent firm which filed E.A.No.113 of 2020 and E.A.No.17 of 2021, stating that Mr.Shakkir was held up abroad. However, he came back and got the 9th respondent firm transposed as the 2nd petitioner.
4. Heard the learned counsel appearing for the petitioners and also the Senior Counsel Advocate Grashious Kuriakose for and on behalf of respondents No.1 to 6. 6 O.P.(RC) No.15 of 2021
5. The contentions of the 2 nd petitioner that the firm is the actual tenant and behind its back order of eviction was obtained and tried to dispossess the firm are denied by the respondents-landlords. The learned Senior Counsel appearing for them would submit that even assuming that the 2 nd petitioner has some right as a partner, the order of eviction which has been fiercely fought out, does not suffer from any vice. Therefore, it is contended that without any right or interest in the petition schedule premises the 2 nd petitioner has come forward with the claim petition.
6. In this original petition, what requires consideration is only whether the Execution Court has to be directed to take up and dispose of Ext.P6, E.A.No.17 of 2021. The petitioners state a further relief that the Execution Court should be directed to consider and dispose of Ext.P1, claim petition also. That is a matter totally depending upon the order to be passed by the Execution Court on I.A.No.17 of 2021. Therefore, the petitioner is not entitled to claim such a relief in this original petition.
7O.P.(RC) No.15 of 2021
7. The rival contentions with respect to the right over the petition schedule premises are matters for consideration by the court below at appropriate stages. Since Ext.P6, E.A.No.17 of 2021, which is one filed for restoration of the claim petition, is still pending. It is only appropriate to direct the Execution Court to take up and consider that matter at an early date.
Accordingly, this original petition is disposed of by directing the Execution Court (Munsiff), Thalassery, to dispose of E.A.No.17 of 2021 in E.P.No.146 of 2019 in R.C.P.No.32 of 2005 within two weeks from 13.07.2022. The legal and factual contentions of both sides are left open. Both sides will appear before the Execution Court on 13.07.2022.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr 8 O.P.(RC) No.15 of 2021 APPENDIX OF OP (RC) 15/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PETITION NO.E.A.NO.113/2020 FILED UNDER ORDER 21, RULE 97 OF CPC DATED 10.01.2020.
EXHIBIT P2 TRUE COPY OF THE PARTNERSHIP DEED DATED 04.02.2005 PRODUCED ALONG WITH THE CLAIM PETITION.
EXHIBIT P3 TRUE COPY OF THE PROOF AFFIDAVIT IN E.A.NO.113/2020 IN E.P.NO.146/2019 IN RCP NO.32/05 ON THE FILES OF THE MUNSIFF COURT, THALASSERY.
EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR ADJOURNMENT FILED BY THE ADVOCATE CLERK IN E.A.NO.314/2020 DATED 18.11.2020 EXHIBIT P5 TRUE COPY OF THE ORDER IN OP(RC) NO.112/2020 DATED 04.11.2020.
EXHIBIT P6 TRUE COPY OF THE RESTORATION PETITION BEARING E.A.NO.17/2021 DATED 13.01.2021.