Kerala High Court
Aboobacker K. P vs Mallatti Randupurayil Mariyu on 6 July, 2022
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
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.
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.
O.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
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.
