Nss Karayogam vs Damodar & Sons

Kerala High Court

Nss Karayogam vs Damodar & Sons on 23 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                        &
                  THE HONOURABLE MR. JUSTICE EASWARAN S.
      THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                          OP (RC) NO. 132 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 31.3.2023 IN EP NO.405 OF 2020 IN
RCP 11/2011 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA
PETITIONER/DECREE HOLDER/RESPONDENT/PETITIONER:

            NSS KARAYOGAM
            NO.2356 ,KIZHAKKUMMURI,IRINJALAKUDA.REP.BY PRESIDENT,
            BALAKRISHNAN , AGED 82 YEARS, S/O.PEDIKKATTIL KUNJI
            AMMA, IRINJALAKUDA VILLAGE,
            MUKUNDAPURAM TALUK, PIN - 680308

            BY ADVS.
            K.S.RAJESH
            M.SHAJU PURUSHOTHAMAN


RESPONDENT/JUDGMENT DEBTOR/APPELLANT/RESPONDENT:

            DAMODAR & SONS
            IRINJALAKUDA, REPRESENTED BY MANAGING PARTNER C.D
            SHAJI, AGED 63 YEARS, S/O. CHERAKULAM DAMODHARAN,
            THRISSUR ROAD, IRINJALAKUDA, PIN - 680121

            BY ADV AJITH VISWANATHAN


     THIS   OP    (RENT   CONTROL)    HAVING   COME   UP   FOR   ADMISSION   ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (RC) NO. 132 OF 2023
                                       2



                                JUDGMENT

Amit Rawal, J.

1. Order dated 31.03.2023 of the executing court dismissing the Execution Petition No.405/2020 in RCP No.11/2011 is under challenge at the instance of the petitioner - landlord.

2. Petitioner - landlord sought the eviction of the respondent through RCP No.11/2011 by seeking the ground of eviction under Sections 11(3) and 11(7) of the Kerala Building (Lease and Rent Control) Act, 1965. The aforementioned rent petition was contested by the respondent - tenant on various grounds. Parties were at variance and the learned Rent Controller framed the following issues:

1) Whether the landlord institution is a Religious, Charitable, Educational or Public Institution u/s 11(7) of Kerala Buildings (Lease and Rent Control) Act?

OP (RC) NO. 132 OF 2023 3

2) Whether the Kizhakkummury NSS Nair Karayogam Vanithasamajam is a dependent of the landlord? Whether eviction ground u/s 11(3) is applicable in the case on hand?

3) Is the petition bad for non joinder of necessary parties ?

4) Whether the petitioner institution is entitled to vacate the respondent/tenant from petition schedule property u/s 11(7) of Kerala Buildings (Lease and Rent Control) Act ?

5. Reliefs and costs ?

3. Both the parties examined following number of witnesses and produced following documents:

Petitioners Exhibits:

         A1      -   1.4.05         -       Rent agreement.
         A2     -    28.6.11        -       copy of notice.
         A3     -    28.6.11        -       Postal receipt.
         A4     -                   -       Acknowledgment card.
         A5     -                   -       Reply notice.
         A6     -                   -       Karayogam minutes book.
 OP (RC) NO. 132 OF 2023
                                 4



         A7   -    19.6.10   -       Application of Vanitha
                                     Samajam Secretary.
         A8   -              -       True copy of minutes book
                                     page.
         A9   -              -       - do -    page No.57 to 61
         A10 -               -       Notice of 55th Annual
                                     General Meeting
         Respondents Witness:
         RW1 -     16.12.13 -        Shaji
         RW2 -     3.1.14    -       Ajithkumar.


         Respondents Exhibits:
         B1   -    Notice dated 20.1.10.

4. Learned Rent Controller vide judgment and decree dated 31.01.2014 allowed the aforementioned petition under section 11(7) of 1965 Act and directed the tenant to surrender the vacant possession of the schedule building within a period of one month.

5. Against the aforementioned judgment, respondent

- tenant filed an appeal before the Appellate Authority in RCA No.29/2014. It is pertinent to mention that during the pendency of the aforementioned appeal, parties had arrived OP (RC) NO. 132 OF 2023 5 at a compromise dated 03.03.2016 whereby the petitioner -

landlord had granted a period of four(4) years to the tenant to occupy the premises for rent at the rate of Rs.5,000/- (Rupees five thousand only) and respondent - tenant had undertaken to vacate the premises after the expiry of four(4) years. The tenant failed to handover the possession, which impelled the landlord to institute the execution petition ibid.

6. Learned Principal Munsiff Court while interpreting the terms of compromise, did not notice the fact that there was already order of eviction, dismissed the execution petition by relegating the petitioner - landlord to file fresh eviction petition on the ground that there was a fresh lease between the landlord and the tenant.

7. Mr.K.S.Rajesh, learned counsel appearing on behalf of the petitioner submitted that the undertaking given by the landlord was treated to be a decree and therefore, liable to be executed in accordance with law for, the landlord had never withdrawn the rent petition. The order of OP (RC) NO. 132 OF 2023 6 the eviction remained but it was to be implemented after expiry four(4) years, thus there was no requirement for the landlord to approach the Rent Controller again for seeking eviction. Order is illegal and perverse.

8. On the contrary, Mr.Shibu Joseph, learned counsel appearing on behalf of the respondent-tenant submitted that bare look at the terms and conditions of the lease agreement would lead to the irresistible conclusion that there was a fresh lease at a fresh rent and therefore, there is a fresh tenancy and the eviction petition had become un- executable. The remedy for the landlord - petitioner was to file fresh petition and supported the order under challenge.

9. In support of the contention, relied upon the judgment of Supreme Court in Alagu Pharmacy(M/s) and Others v. N.Magudeswari [2018 KHC 6593] to contend that in a similar circumstance the court said that if no ground of eviction survived, it was a fresh tenancy and remedy was to seek fresh eviction.

10. We have heard the learned counsel for the parties OP (RC) NO. 132 OF 2023 7 and appraised paper book.

11. It would be appropriate to extract the relevant portion of the order/decree of the Rent Controller ordering the respondent - tenant to vacate the premises within the period prescribed. The same reads as under:

"27. Point No.5:-In the result, the petition is allowed with cost u/s 11(7) of the Kerala Buildings (Lease and Rent Control) Act 1965 and the respondent is directed to surrender vacant possession of the petition schedule building to the petitioner within a period of one month from today failing which the petitioner can seek such vacant possession through the process of the Court."

12. It is an admitted fact that during the pendency of RCA No.29/.2014, parties have arrived at a compromise. The terms and conditions of the compromise if read on translation reads as under:

"The appellant has agreed to give enhanced rent of Rs.5000/- for the tenanted premise from 1.3.16 for 4 years and appellant has agreed to give the same accordingly.

The appellant hereby agree to give the vacant possession of the tenanted premise on completion of 4 years from 1.3.2016.

OP (RC) NO. 132 OF 2023 8 If any acquisition proceeding is initiated against the tenanted premise, the appellant will provide all help to re-construct the tenanted-premise and for that purpose both parties will execute an agreement and the appellant can continue in the tenanted premise till expiry of aforesaid 4 years."

13. On perusal of the terms and conditions of the compromise arrived at between the parties would mean that petitioner - landlord had, at no point of time withdrawn the RCP entailing into eviction of the respondent. In other words, the order of the eviction remain valid but it was to be executed after four years as the tenant had undertaken to vacate after four(4) years, at increased rate of rent. Definitely the decree of the rent controller remained in tact when the appeal was withdrawn. The remedy thus in our considered view for the petitioner - landlord was to seek execution petition.

14. The cited judgment (supra) was a case were appellants therein as tenants had been doing business under the name and style 'Alagu Pharmacy' owned by the respondent-Magudeswari on the basis of lease agreement OP (RC) NO. 132 OF 2023 9 dated 22.02.2012. In 2013, a legal notice was issued determining the tenancy resulting into eviction petition in 2014 bearing No.29/2014. During the pendency of the Rent Control Petition, parties had entered into a compromise and on the basis of the compromise, Rent Controller passed the order to the extent that the respondent - tenant ie., appellants before the Supreme Court, would vacate the premises and deliver the vacant possession of the petition mentioned property within the period prescribed, with a clause that the petitioner landlord would take an appropriate action through the court of law against the respondent. Landlord in the said case called upon the tenant to vacate the premises on expiry of the period granted in the compromise decree. On 07.12.2015, tenant preferred an appeal RCA before the Principal Subordinate Judge against compromise decree dated 28.03.2014 and also moved an application for condonation of delay of 604 days in filing the appeal. Matter was contested in Appellate Court. On contest, the Appellate Court vide order dated 19.01.2016 accepted OP (RC) NO. 132 OF 2023 10 the said IA and condoned the delay subject to payment of cost of Rs.2,000/- (Rupees two thousand only). The order of condoning the delay was assailed before the High Court of Madrass in revision petition which was disposed of and review preferred thereof was also disposed of. It is the said order which was assailed before the Supreme Court.

15. From the analysis of the aforementioned findings of the judgment referred (supra), it is observed that the compromise was arrived at between the parties before the Rent Controller. The judgment do not reveal that the compromise entailed into a decree. In the absence of such decree of courts, the option for the landlord was to take appropriate remedy like institution of rent petition as has been observed in the cited judgment. However, in the instant case the decree had already been passed which was ordered to be deferred by way of compromise for another period of four(4) years. We thus find that the order of the court below suffers from gross illegality and perversity, accordingly set aside. Execution Petition is allowed. OP (RC) NO. 132 OF 2023 11 Respondent - tenant is directed to vacate the premises within a period of one month from the date of receipt of certified copy of this judgment.

Original petition stands disposed off.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE nak OP (RC) NO. 132 OF 2023 12 APPENDIX OF OP (RC) 132/2023 PETITIONER EXHIBITS Exhibit P 1 A TRUE COPY OF THE ORDER DATED 31.1.2014 IN RCP 11/2011 OF THE COURT OF RENT CONTROLLER, IRINJALAKUDA Exhibit p 2 A TRUE COPY OF THE COMPROMISE DATED 3.3.2016 ENTERED BY THE PETITIONER AND RESPONDENT IN THE MEDIATION IN RCA 29/2014 Exhibit P3 A TRUE COPY OF THE JUDGMENT DATED 1.6.2016 PASSED BY THE 4THADDITIONAL RENT CONTROL APPELLATE AUTHORITY IN RCA 29/2014 Exhibit P4 A TRUE COPY OF THE EXECUTION PETITION EP 405/2020 DATED 13.3.2020 Exhibit P5 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 23.3.2022 Exhibit P6 A TRUE COPY OF THE ORDER DATED 31.3.2023 PASSED BY THE PRINCIPAL MUNSIFF COURT,IRINJALAKUDA INEP 405/2020 IN RCP 11/2011