IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 31928 of 2004(A) -------------------------- AGAINST THE ORDER IN EP.NO.24/1998 IN RCP.2/1989 of MUNSIFF-MAGISTRATE COURT, DEVICOLAM .................... PETITIONERS: ------------ 1. HABIB, S/O.LATE M.SHEIK ABDUL KHADER, WEST MOSQUE STREET, SAMMANDHAPURAM, RAJAPALAYAM, TAMIL NADU. 2. BASHEER ALI, S/O.DO.DO. REPRESENTED BY POWER OF ATTORNEY HOLDER K.M.PAREED LABBA, S/O.MOHAMMED LABBA, KOCHUMULLASSERIL HOUSE, MUNNAR. BY ADV. SRI.V.G.ARUN RESPONDENTS: ------------- V.CHANDRASEKHAR, S/O.LATE VEERASAMY, NO.25/IV, MAIN ROAD, GANDHI NAGAR, ADAYAR, CHENNAI-20. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) FOR R1 SRI.P.R.VENKETESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 17.11.1992 IN RCP 2 OF 1989 OF THE RENT CONTROLLER, DEVICOLAM. EXT.P2 TRUE COPY OF THE JUDGMENT IN RCA 1 OF 1993 DATED 17.10.1995 OF THE DISTRICT RENT CONTROL APPELLATE AUTHORITY. EXT.P3 TRUE COPY OF THE COUNTER FOIL OF THE CHALAN RECEIPT NO.508 DATED 16.1.93 EXT.P4 TRUE COPY OF THE EXECUTION PETITION IN EP 24/98 IN RCP 2 OF 1989 OF THE MUNSIFF COURT OF DEVICOLAM DATED 21.12.98 EXT.P5 TRUE COPY OF THE OBJECTION FILED IN THE P DATED NIL ALONG WITH TRANSLATION. EXT.P6 TRUE COPY OF THE ORDER IN EP 24 OF 1998 DATED 4.10.2000 EXT.P7 TRUE COPY OF THE ORDER IN RCRP 1 OF 2004 DATED 21.8.2004 OF THE RENT CONTROL APPELLATE AUTHORITY. 1ST RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF THE ORDER DATED 6.6.2001 PASSED BY THE MADRAS HIGH COURT ALONG WITH WHICH WAS APPENDED THE WILL EXECUTED BY MY LATE FATHER VEERASAMY DATED 3.10.1994 TRUE COPY P.S. TO JUDGE. C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W.P.C. No. 31928 OF 2004 -------------------------------------------- Dated this the 16th day of July, 2008 JUDGMENT Ramachandran Nair,J. This is a Petition filed under Article 227 of the Constitution of India challenging the order of the District Court dismissing a revision filed against eviction order passed in execution proceedings by the Rent Controller. Petitioners were tenants in a shop room owned by one late Veeraswamy. The land owner filed a petition for eviction on three grounds, namely, bona fide need, arrears of rent, and sub-letting. However, the Rent Control Court ordered eviction only under Section 11(2)(b) of the Rent Control Act on account of arrears of rent due for the period from November, 1981 to May, 1989. Even though petitioners could have avoided eviction by deposit of the arrears of rent with interest and costs under Section 11(2)(c) of the Act, they deposited only part of the amount on 16.1.1993. Admittedly deposit was not made with interest within the time prescribed under the 2 statute. Petitioner's case is that landlord filed appeal against the order of the Rent Control Court for eviction on all three grounds, inspite of the fact that eviction was ordered by Rent Control Court under Section 11(2)(b) of the Act. During the pendency of the appeal, which was later dismissed, petitioners remitted rent before the appellate court. Even after dismissal of appeal, petitioners sent rent through money order to the building owner and he was receiving the same, is the case of the petitioners. However, original owner died without filing execution petition. After his death the respondent, who got the property under a Will got it probated, filed application for execution of the decree which was allowed by the Rent Controller. When petitioners challenged the same in revision, the District Court held that none of the grounds raised by the petitioners could be entertained in execution proceedings and on account of non-compliance of Section 11 (2)(c) of the Act, petitioners are liable to be evicted. It is against this order that the petitioners have filed this Writ Petition under Art. 227 of the Constitution of India. 2. We have heard counsel appearing for the petitioners and 3 senior counsel Sri. P.G. Parameswara Panicker appearing for the respondent. The first ground raised by the petitioners is that the deposit of arrears is sufficient compliance of Section 11(2)(c). We are unable to accept this contention because deposit was not made within 30 days mentioned in Section 11(2)(c) of the Act and the amount deposited admittedly did not cover interest and costs and so much so, the deposit is not in compliance with Section 11(2)(c) of the Act. In any case, petitioners have no case that they have filed an application for getting the eviction order vacated by the Rent Control Court, which passed the order, as is required under Section 11(2)(c) of the Act. The provision under Section 11(2)(c) for an order being passed by the Rent Control Court revoking it's order under Section 11(2)(b) is to ensure that the court which passed the decree is satisfied that there is compliance in accordance with statute, that is entire amount liable to be deposited is in fact deposited within the time prescribed under the statute. Since petitioners have not filed any petition before the Rent Control Court, it had no occasion to verify whether there is compliance of the statutory provision. Counsel for the respondent rightly 4 contended that compliance of Section 11(2)(c) cannot be considered by the executing court as jurisdiction is vested with the Court which passed the decree. Even though counsel for the petitioners submitted that petitioners should be given an opportunity before the Rent Control Court to make an application for extension of time for deposit to cover the belated payment, we do not find any justification for this Court to grant it because petitioners have not even deposited the full amount even with the delay. Therefore we do not find any justification to grant opportunity to the petitioners to move an application for extension of time for payment of the balance amount. Even though counsel for the petitioners submitted that there is waiver on the part of the building owner because he was receiving rent sent by the petitioners through MO, there is nothing to indicate that during his life time he has waived his right to execute the decree. The petitioners and the present building owner even subsequent to the death of original owner could have entered into agreement for fresh lease, which would have probably neutralised the decree. In the absence of any such arrangement between the petitioners and the building owner, decree passed by the 5 Rent Control Court could be executed. The District Court has considered all issues raised by the petitioners in detail and we find no ground to interfere with the findings recorded by the District Court. W.P.C. therefore fails and is dismissed. However, at the request of counsel for the petitioners, petitioners are granted two months' time from today to vacate the premises, provided they file an undertaking within one month from today before the executing court after deposit of arrears of rent with interest and costs that they will vacate the premises within two months from today. (C.N.RAMACHANDRAN NAIR) Judge. (V. K. MOHANAN) Judge. kk 6