IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP (RC).No. 3517 of 2011(O) --------------------------- RCP.21/2001 of RENT CONTROL/MUNSIFF COURT,ALUVA .................... PETITIONER: --------------------- S.A.SHUKOOR, S/O.S.A.ALI, SANKARANKUZHI HOUSE, ALUVA PAKUTY, ALUVA KARA. BY ADV. SRI.DINESH MATHEW J.MURIKAN RESPONDENT(S): --------------------------- 1. SUHARA, D/O.KUNJI BAVA, KORATTYPARAMBIL, KADUNGALLUR VILLAGE, PANALKKULAM KARA, PIN - 683 511. 2. SUBAITHA, D/O.BAVA, KADUNGOTHUPARAMBIL, KADUNGALLUR VILLAGE, PANALKKULAM KARA, PIN 683 511. R1 & R2 BY ADVS. SRI. I.DINESH MENON, SRI.T.C.SURESH MENON. THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(RC) NO.3517/2011 O APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1. TRUE COPY OF THE PETITION IN R.C.P.NO.21/2001 ON THE FILE OF RENT CONTROL COURT, ALUVA, DATED 26.09.2001. EXHIBIT-P2. TRUE COPY OF THE WRITTEN STATEMENT IN R.C.P.NO.21/2001 ON THE FILE OF RENT CONTROL COURT, ALUVA, DATED 26.09.2001. EXHIBIT-P3. TRUE COPY OF THE ORDER IN R.C.P.NO.21/2001 PASSED BY THE RENT CONTROL COURT, ALUVA, DATED 05.12.2003. EXHIBIT-P4. TRUE COPY OF THE MEMORANDUM OF APPEAL IN R.C.A.NO.5/2004 ON THE FILE OF THE RENT CONTROL APPEALLATE AUTHORITY, NORTH PARAVUR, DATED 10.02.2004. EXHIBIT-P5. TRUE COPY OF THE ORDER IN R.C.A.NO.5/2004 PASSED BY THE RENT CONTROL APPEALATE AUTHORITY, NORTH PARAVUR, DATED 18.12.2004. EXHIBIT-P6. TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT IN R.C.P.NO.21/2001 ON THE FILE OF RENT CONTROL COURT, ALUVA, DATED 14.11.2003. EXHIBIT-P7. TRUE COPY OF THE DOCUMENT NO.4035/2003 OF S.R.O.ALUVA DATED 21.11.2003. EXHIBIT-P8. TRUE COPY OF THE DOCUMENT NO.4236/2003 OF S.R.O.ALUVA DATED 21.11.2003. EXHIBIT-P9. TRUE COPYO OF THE ENCUMBRANCE CERTIFICATE NO.5426/11 SHOWING THE TRANSFER OF PROPERTY DATED 23.05.2011. EXHIBIT-P10. TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.5425/11 SHOWING THE TRANSFER OF PROPERTY DATED 23.05.2011. EXHIBIT-P11.TRUE COPY OF THE CERTIFICATE ISSUED BY THE ALUVA MUNICIPALITY DATED 12.07.2011. EXHIBIT-P12.TRUE COPY OF THE ORDER IN E.P.NO.90/2005 IN R.C.P.NO.21/2001 PASSED BY THE MUNSIFF COURT, ALUVA DATED 07.07.2011. Kss ..2/- ..2.... OP(RC) NO.3517/2011 O EXHIBIT-P13.TRUE COPY OF THE E.A.NO.79/2011 IN E.P.NO.90/2005 IN R.C.P.NO.21/2001 ON THE FILE OF THE MUNSIFF COURT, ALUVA DATED 23.07.2011. EXHIBIT-P14.TRUE COPY OF THE E.A.NO.80/2011 IN E.P.NO.90/2005 IN R.C.P.NO.21/2001 ON THE FILE OF THE MUNSIFF COURT, ALUVA DATED 23.07.2011. EXHIBIT-P15.TRUE COPY OF THE JUDGMENT IN OP (RC) NO.2513/2011 DATED 23.08.2011. EXHIBIT-P16.TRUE COPY OF THE E.A.NO.97/2011 IN E.P.NO.90/2005 IN R.C.P.NO.21/2001. EXHIBIT-P17.TRUE COPY OF THE SALE DEE NO.1317/2009 OF S.R.O.ALUVA DATED 22.06.2009. EXHIBIT-P18.TRUE COPY OF THE SALE DEED NO.1242/2009 OF S.R.O. ALUVA DATED 11.06.2009. EXHIBIT-P19.TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, ALUVA IN E.A.NO.79/2011 IN E.P.NO.90/2005 IN R.C.P.NO.21/2001 DATED 17.10.2011. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... O.P.(R.C).NO.3517 OF 2011 ................................................................... Dated this the 21st day of November, 2011. JUDGMENT Pius C. Kuriakose, J. The tenant who suffered an order of eviction under Sections 11(3) and other grounds under the Rent Control Act, is the petitioner. In fact eviction order was passed against the petitioner by the Rent Control Appellate Authority which was indirectly confirmed by this Court upon the petitioner withdrawing the RCR on condition that the petitioner is given sufficiently long period of time to vacate. After having availed the benefit of time granted by this Court for surrendering the premises, the petitioner did not surrender the premises. He raised an objection contending that the respondents/landladies do not continue to have ownership over the building. According to him, having already conveyed the ownership over the building to strangers, the landladies were not justified in securing an order of eviction. The landladies' conduct it was alleged amounted to play of fraud on the court. Their contentions O.P.(R.C).NO.3517 OF 2011 : 2 : were repelled by the execution court and confirmed by the district court under Section 14. Against that, the petitioner filed OP(RC).No.2513/11. The above OP(RC) was disposed of by a Bench of this Court consisting of one among us - PCK (J) by Ext.P15 judgment. The ground on which the order of the execution court was challenged in Ext.P15 was that the eviction order had been obtained by the landladies by play of fraud. Without expressing any opinion on the merits of the above ground in view of the submissions made on behalf of the petitioner that the petitioner should be allowed to adduce evidence before this Court passed on Ext.P15 judgment directing the execution court to permit the petitioner to adduce evidence. It is pursuant to Ext.P15 that the order impugned in this original petition - Ext.P19 has been passed. 2. One of the complaints raised by the petitioner is that the learned execution court has not obeyed the mandates of this Court in Ext.P15. No opportunity was given by the execution court to adduce evidence. On going through Ext.P19, we find that the learned Munsiff has taken the view O.P.(R.C).NO.3517 OF 2011 : 3 : that “let in evidence is not within the purview, ambit and scope of fraud”. After saying so, the learned Munsiff has concluded that the landladies have not played any fraud either on the tenant or on the court. The view of the learned Munsiff that the concept of fraud does not admit of any scope for adducing evidence is too broad a view to receive acceptance at our hands. We do agree with the scope for adducing evidence to establish fraud may be very narrow and establishing fraud will not be very easy. But at the same it may be possible for a party in a given case to adduce evidence and prove that the order in question is vitiated by play of fraud either on court or on the party. 3. We find some force in the submission of Sri. Dinesh Mathew J.Murikkan that this Court having directed the execution court to permit parties to adduce evidence, the execution court acted improperly in not permitting the petitioner to adduce evidence. 4. Sri.T.C. Suresh Menon, learned counsel for the landladies submitted that it is not on the ground under Section 11(3) alone that eviction order was given in favour O.P.(R.C).NO.3517 OF 2011 : 4 : of the landladies. According to Sri. Menon, the 4th proviso to Section 11(3) will not have any application when it comes to executing eviction order under Section 11(4)(3). Such eviction order can be executed even by an assignee of the building after the eviction order is passed. The argument of Sri. Menon does merit consideration and we leave it to the execution court to consider the above argument. As the learned Munsiff has not obeyed the mandates of this Court under Ext.P15 to afford opportunity to the petitioner to adduce evidence, we become obliged to interfere with Ext.P19. We set aside Ext.P19 and direct the learned Munsiff to take a fresh decision on the executability of the eviction order which has become final. The needful in compliance with this direction will be done by the learned Munsiff without further delay and at any rate within three months of receiving a copy of this judgment. We notice another aspect of the matter. The building in question situated on bank junction, one of the most important commercial junctions in Aluva municipal town which is fetching to the landladies only Rs.4,500/- per O.P.(R.C).NO.3517 OF 2011 : 5 : mensem. We are sure that the above rate is far below the fair rent which the building may fetch. This order of remand which we are passing is made conditional upon the revision petitioner paying or depositing before the execution court every month with effect from 1.12.2011 at the rate of Rs.9,000/- per mensem, towards occupational charges for the building. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl