IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP (RC).No. 3199 of 2011(O) --------------------------- OS.435/2008 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER S): -------------------- ABDUL HYE, NADUVILEVEETIL, PEERUMUHAMMED MANZIL, KAYAMKULAM.P.O, KAYAMKULAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE RESPONDENT(S): --------------- ASEEM MUHAMMED ANSARI, MALAYIL KIZHAKKATHIL BITHANOOR, PATHIYOOR EAST, PATHIYOOR VILLAGE, PIN - 690 552, FROM RAHMAN MANZIL,NADUVILE PUTHEN VEETIL, VERUVALLIBHAGAM MURI, KEERIKAD VILLAGE, KAYAMKULAM VILLAGE. ADV. SRI.R.RAJASEKHARAN PILLAI THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ O.P.(RC).No.3199 OF 2011 ------------------------ Dated this the 19th day of October, 2011 JUDGMENT Pius C.Kuriakose, J. Under challenge in this original petition filed by the tenant under Article 227 of the Constitution is Ext.P13 order passed by the Additional District Court, Mavelikkara confirming Ext.P12 order passed by the Munisff Court, Kayamkulam ordering delivery of the building which is subject matter of the eviction order passed by the Rent Control Court, Kayamkulam in RCP No.6/1997. The petitioner suffered an eviction order by compromise as per Ext.P6. On the terms of Ext.P6 compromise order, the petitioner is to surrender the building in question contemporaneously with the petitioner obtaining possession of the building belonging to him in respect of which he had initiated proceedings by way of RCP No.12/1992 for evicting his tenant. It is not disputed that the petitioner was able to obtain possession of his building which was subject matter of RCP No.12/1992. Yet he raised objections to E.P. No.80/2009 which was a petition for execution of Ext.P6 eviction order on the basis of Ext.P7 sale OPRC.No.3199/2011 2 deed executed by his mother (mother of the respondent also) on the strength of her revocation of Ext.P3 gift deed and Ext.P4 release deed on the basis of which only the respondent claimed title to the building in question. In fact, the respondent instituted O.S. No.435/2008 before the Munsiff Court seeking cancellation of Ext.P7 sale deed and relief of declaration of his title based on Exts.P3 and P4. It appears that the above suit was later withdrawn by the respondent and presently O.S. No.154/2011 instituted by the petitioner seeking a declaration of the petitioner's title over the building in question is pending adjudication. The learned Rent Control Court by Ext.P12 order overruled all the objections raised by the petitioner to the executability of Ext.P6 taking the view that Ext.P6 eviction order has become final and that such eviction order, which is passed on the basis of a compromise entered into by the landlord and the tenant, cannot be challenged except on specified grounds such as nullity resulting from lack of inherent jurisdiction or that same is vitiated by fraud or collusion. The learned District Judge under Ext.P13 has endorsed the reasoning of the learned Munsiff and has dismissed RC(RP) No.1/2011 which the petitioner had OPRC.No.3199/2011 3 filed before the District Court under Section 14 of Act 2 of 1965. 2. In this original petition under Article 227 various grounds are raised challenging Ext.P13 and P12. It was very extensive submissions which were addressed before us by Sri. George Varghese Perumpallikuttiyil learned counsel for the petitioner based on the various grounds raised. The learned counsel would draw our attention to the materials placed on record such as Exts.P4, P6, P7 as well as to the impugned judgment Ext.P13 and order Ext.P12. According to the learned counsel, Ext.P13 is liable to be corrected under the visitorial jurisdiction of this court under Article 227 as the same is per se illegal and is the result of total non application of mind by the learned District Judge on the issue which arose and the materials available on record. 3. All the submissions of Mr.George Varghese Perumpallikuttiyil were resisted by Sri..R.Rajasekharan Pillai learned counsel for the respondent/landlord. 4. We have very anxiously considered the submissions addressed at the Bar. As already indicated, it is the visitorial jurisdiction of this court under Article 227 which has been invoked by the petitioner seeking interference with Ext.P13 OPRC.No.3199/2011 4 judgment. Visitorial jurisdiction under Article 227 is not to be invoked for correcting each and every wrong order passed by a Subordinate Court. The above jurisdiction will be invoked only when it can be said that the order passed by the Subordinate Court is per se illegal in the sense that it offends a clear provision of law either statutory or settled or that the same is passed without jurisdiction or the same is one which can be branded as a perverse order in the sense that such an order will not be authored by anybody having reasonable learning and training in law. Gauging Ext.P13 by those para meters, it is very clear to our mind that there is no warrant at all for invocation of the visitorial jurisdiction on Ext.P13. As rightly noticed in Exts.P12 and P13, Ext.P6 eviction order passed on compromise between the parties has attained finality. The reasons urged by the petitioner against the executability of Ext.P6 eviction order cannot have appeal to the Execution Court so long as Ext.P6 order stands. Then, the question is whether the positive decree, which the petitioner has sought for in O.S. No.154/2011, can have any implication or effect on the executability of Ext.P6 order. In Ext.P13, we find that the learned District Judge has OPRC.No.3199/2011 5 taken due note of the pendency of O.S. No.154/2011 and has incorporated observations in Ext.P13 which in our opinion protects the interest of the petitioner in the event of the petitioner obtaining positive decree in O.S. No.154/2011 instituted by him. We decline jurisdiction and dismiss the original petition. But, at the same time, we make it clear that delivery to be obtained by the respondent pursuant to Ext.P13 and this order of ourselves will be subject to the final result of the civil proceedings presently instituted by the petitioner by way of O.S. No.154/2011. 5. After we made our decision known to the learned counsel for the petitioner, he requested that reasonable time be granted to the petitioner for surrendering the premises. This request was very stiffly opposed by the learned counsel for the respondent. Notwithstanding the stiffness of the opposition, considering the close relationship between the parties, we are inclined to grant to the petitioner time till 31/3/2012 to surrender the premises subject to certain conditions. 6. Accordingly, the result of the above discussion is as follows; OPRC.No.3199/2011 6 7. The original petition is dismissed. Ext.P13 order is confirmed. But, the Execution Court is directed to postpone the delivery pursuant to Ext.P13 till 31/3/2012 subject to the following conditions; The petitioner will file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the building in question to the respondent on or before 31/3/2012 and undertaking further through the same affidavit that arrears of rent due in respect of the building since December 2006 till date at the rate of Rs.200/- per month will be discharged within a period of one month from today and that occupational charges at the same rate will be paid till actual surrender of the building is given. We make it clear that the revision petitioner will get benefit of time as allowed above, only if he files the affidavit and honours the undertakings therein without fail. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE. dpk OPRC.No.3199/2011 7