P.T.Thomas vs K.A.Chandi
2022 Latest Caselaw 1710 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA,
                          1943
                  OP(C) NO. 531 OF 2018
      AS 86/2008 OF ADDITIONAL DISTRICT COURT   - II,
                       KASARAGOD
PETITIONER/S:

         P.T.THOMAS
         AGED 63 YEARS
         RESIDING AT PUNCHATHARAPPAL HOUSE, KARUVANCHAL,
         VELLAD VILLAGE, TALIPARAMBA TALUK,KANNUR
         DISTRICT, PIN - 670 571.
         BY ADVS.
         SRI.JAWAHAR JOSE
         SMT.CISSY MATHEWS

RESPONDENT/S:

         K.A.CHANDI
         KADUKAMMAKKAL HOUSE, IDAKKAOLY, PALAVAYAL
         VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
         670 511.
         BY ADV SRI.M.SASINDRAN


    THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
25.11.2021, THE COURT ON 16.02.2022, DELIVERED
THE FOLLOWING:
 O.P.(C) No.531 of 2018

                                    -2-



                           JUDGMENT

Dated this the 16th day of February, 2022

The petitioner is the judgment debtor in

E.P.No. 1 of 2016 on the files of the Munsiff's

Court, Payyannur. The execution proceedings arise

from O.S. No. 103 of 2008, filed by the

respondent for recovery of possession of a room

leased out to the respondent along with an amount

of Rs. 7200/- with 6% interest towards arrears of

rent. The suit was decreed as sought for and a

further direction was also issued, requiring the

respondent to pay an amount of Rs.600/- per month

towards damages for use and occupation of the

room from 01.05.2008, till the date of actual

delivery. The second appeal filed by the

petitioner was dismissed at the admission stage.

However, the petitioner was granted six months

time to vacate the premises, subject to his O.P.(C) No.531 of 2018

filing an affidavit before the execution court

undertaking to vacate the premises

unconditionally. The petitioner was also made

liable to pay the entire rent up to the date of

occupation. The petitioner did not file the

affidavit as directed and continued to occupy

the room, till he was evicted on 04.01.2016. The

execution petition was filed thereafter, seeking

to realise rent for the period from 01.05.2008 to

01.12.2015, in accordance with the direction in

the second appeal judgment, which required the

petitioner to pay rent up to the date of

occupation.

2. Heard.

3. The primary contention urged by the

learned Counsel for the petitioner is that, the

High Court having dismissed the petitioner's

second appeal at the admission stage, the

executable decree is that of the first appellate O.P.(C) No.531 of 2018

court. In support of the contention that the

dismissal of a second appeal at the admission

stage cannot be equated to an adjudication

determining the rights of parties, reliance is

placed on the decision in Vishwambharan v.

Parameswaran Ashari [1987 (1) KLT 543].

Alternatively, it is contended that the

petitioner having failed to file the affidavit,

undertaking to vacate the premises within six

months, the ancillary direction to pay rent up to

the date of occupation cannot be enforced through

execution proceedings.

4. In reply, learned Counsel for the

respondent argued that, having suffered a

judgment in the second appeal and having

continued in occupation of the premises after the

judgment, petitioner is bound to pay rent for the

period of occupation and the technical contention

now raised will not exonerate him from the

liability.

O.P.(C) No.531 of 2018

5. In order to decide the dispute, it may

be pertinent to note that the trial court had

decreed the suit, directing the petitioner to

surrender vacant possession of the building and

to pay a sum of Rs.7,200/- with interest at the

rate of 9% per annum from the date of suit till

realisation with cost. The petitioner was also

directed to pay damages at the rate of Rs.600 per

month from 01.05.2008 till the date of actual

delivery. The First Appellate Court allowed the

petitioner's appeal in part, confirming the

judgment and decree of the trial court directing

surrender of vacant possession of the plaint

schedule room and payment of Rs.7,200/- with

interest. The judgment, to the extent it directed

the petitioner to pay damages at the rate of

Rs.600/- per month was set aside. The respondent

has not challenged that part of the first

appellate judgment.

6. The second appeal filed by the O.P.(C) No.531 of 2018

petitioner was dismissed by this court finding no

substantial question of law to have arisen for

consideration. Even though the second appeal was

dismissed, the petitioner was granted six months

time to vacate the premises, subject to his

filing an affidavit of undertaking in the

execution court within three weeks. The

petitioner was also required to pay the entire

rent up to the date of occupation. The petitioner

did not file the undertaking as directed, but

continued to occupy the premises, till he was

evicted on 04.01.2016. No doubt, the petitioner

is liable to pay rent for the period he was in

occupation of the premises. The question is

whether that amount can be recovered in purported

execution of the judgment and decree in the

second appeal. This precisely was the question

considered in Vishwambharan (supra). Therein, the

learned Single Judge, after careful analysis of

Section 100 and 101 of CPC, held that when a O.P.(C) No.531 of 2018

second appeal is dismissed in limine, what

happens is only an expression of opinion by the

court that an appeal is not entertainable; and

there is no adjudication, judgment or decree in

such a case. The contextually relevant portion of

the judgment, which led to the above conclusion

reads as follows;

"6. The provisions of the Code dealing with Second Appeals are primarily those contained in S.100 and 101 of the Code; and after Act 104/76, they read as follows: "100. Second appeal.-- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed ia appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be beard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other Substantial O.P.(C) No.531 of 2018

question of law, not formulated by it, if it is satisfied that the case involves such question".

x x x "101. Second appeal on no other grounds. No second appeal shall lie except on the grounds mentioned in S.100." While S.100 provides that a second appeal to the High Court will lie if that Court is satisfied that the case involves a substantial question of law, S.101 puts it negatively by directing that no such appeal shall lie unless such a question of law is involved. Where, therefore, the High Court rejects or dismisses a second appeal at the admission stage itself, without notice to the other side, what it really does is to hold or declare that in the particular case, no second appeal lies. If you stretch it a little more and fall back on the language of S.100, you may be able to suggest that what is done is to hold that the case involves no substantial question of law. To say that no appeal will lie owing to absence of any substantial question of law cannot be equated to an adjudication determining the rights of parties, the formal expression of which alone will be a 'decree' under S.2(2)."

(underlining supplied)

I am in respectful agreement with the above view.

This Court had dismissed the petitioner's second

appeal on finding that no substantial question of

law was involved. As such, there is no

adjudication, judgment or decree in the second

appeal. Hence, as rightly contended by the

learned Counsel for the petitioner, the O.P.(C) No.531 of 2018

executable decree is of the first appellate

Court, the trial court decree having merged with

that of the appellate court.

7. The fact that the petitioner did not

file the affidavit as directed in the second

appeal judgment is also indisputable. The

direction to pay the rent up to the date of

occupation being a condition to be complied with

in the event of the petitioner continuing to

occupy the premises after filing the affidavit as

directed, the contention that the petitioner is

bound to pay the rent in accordance with the

direction in the second appeal, cannot also be

countenanced. Hence, what can be executed is the

decree of the first appellate court requiring the

petitioner to pay Rs.7,200/- with interest at the

rate of 9% per annum from the date of suit till

realisation, with costs. The rent for the period

from 01.05.2008 to 01.12.2015 will have to be

realised by filing a separate suit. O.P.(C) No.531 of 2018

In the result, the original petition is

allowed. Ext.P7 order is set aside. The further

proceedings in E.P.No.1 of 2016 on the files of

the Munsiff's Court, Payyannur, shall be confined

to execution of the decree in A.S.No.114 of 2010

of the Subordinate Judge's Court, Payyannur.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.531 of 2018

APPENDIX OF OP(C) 531/2018

PETITIONER EXHIBITS EXHIBIT.P1 TRUE COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT AS E.P.NO.1/2016 BEFORE THE MUNSIFF'S COURT, PAYANNUR EXHIBIT.P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN E.P.NO.1/2016 BEFORE THE MUNSIFF'S COURT, PAYANNUR EXHIBIT.P3 TRUE COPY OF THE JUDGMENT DATED 21.7.2010 IN O.S.NO.103/2008 OF THE MUNSIFF'S COURT, PAYYANNUR EXHIBIT.P4 TRUE COPY OF THE JUDGMENT DATED 30.06.2014 IN A.S.NO.114/2010 OF THE SUB COURT, PAYYANNUR EXHIBIT.P5 TRUE COPY OF THE JUDGMENT DATED 26.9.2014 IN R.S.A.NO.999/2014 OF THIS HON'BLE COURT.

EXHIBIT.P6 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER IN E.P.NO.1/2016 BEFORE THE MUNSIFF'S COURT, PAYYANNUR.

EXHIBIT.P7 TRUE COPY OF THE ORDER DATED 20.1.2018 IN E.P.NO.1/2016 OF THE MUNSIFF'S COURT, PAYYANNUR.