IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 18705 of 2009(O) -------------------------- OS.678/2004 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- A.M.NOUSHAD, THOPPIL HOUSE, KOLLAM. BY ADV. SRI.K.RAJESH KANNAN RESPONDENT(S): --------------- 1. M.JAMAL, T.C.38/679, POWER HOUSE ROAD, TRIVANDRUM. 2. M.MAITHEEN BEEVI, T.C.38/679, POWER HOUSE ROAD, TRIVANDRUM. 3. BADARUDEEN, T.C.38/679, POWER HOUSE ROAD, TRIVANDRUM. 4. SALAHUDEEN, T.C.38/679, POWER HOUSE ROAD, TRIVANDRUM. ADV. SRI.K.B.PRADEEP FOR R1 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.18705/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.678/2004 OF THE MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN C.R.P.NO.1748/2001 DATED 31.1.2005. EXT.P3: COPY OF THE WRITTEN STATEMENT FILED BY THIS PETITIONER DATED 24.11.2005 IN O.S.NO.678/2004. EXT.P5: COPY OF THE I.A.NO.3435/2006 EXT.P6: COPY OF THE OBJECTION IN O.S.NO.678/2004 BY PETITIONER. EXT.P7: COPY OF THE JUDGMENT IN W.P.(C).NO.10115/2007 DATED 24.7.2008. EXT.P8: COPY OF THE ORDER IN I.A.NO.5564/2006 IN O.S.NO.678/2004 DATED 20.3.2009. EXT.P9: COPY OF THE R.C.P.NO.98/1994 DATED 31.7.1984. EXT.P10: COPY OF THE DELIVERY LIST EXT.P11: COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT. EXT.P12: COPY OF THE E.A.NO.176/2009 BEFORE THE PRINCIPAL MUNSIFF'S COURT IN R.C.P.NO.98/1994 UNDER SECTION 47 OF CPC AS PER ORDER DATED 1.4.2009. EXT.P13: COPY OF THE POSTAL CARD. EXT.P14: COPY OF THE MEMO SENT BY THE COMMISSIONER. RESPONDENTS EXHIBITS: EXT.R1(A): COPY OF THE PLAINT DATED 14.6.2007 IN O.S.NO.1026 OF 2007 BEFORE the MUNSIFF'S COURT, TRIVANDRUM. EXT.R1(B): COPY OF THE REPORT DATED 25.7.2007 SUBMITTED BY THE ADVOCATE COMMISSIONER IN EXT.R1(A) SUIT. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.18705 OF 2009 (O) ----------------------------------- Dated this the 23rd day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records relating to Ext.P8 to this Honourable Court and the same be set aside. ii. to issue an order directing the Ist Additional Munsiff's Court, Thiruvananthapuram to dispose of Issue No.2 on the basis of the documents produced in the case as prayed for in I.A.No.5564/2006. 2. Petitioner is the 2nd defendant in O.S.No.678 of 2004 on the file of the Munsiff's Court, Thiruvananthapuram. The above suit has been filed by respondents 1 to 4 for the reliefs of demarcation of boundaries and also for permanent WPC.18705/09 2 prohibitory injunction. Ext.P1 is the copy of the plaint in the above suit. Admittedly, these four respondents had suffered orders of eviction on various grounds under the Rent Control Act on an application moved by the present petitioner conjointly with some others, the landlords of the buildings. The eviction ordered by the Rent Control Court, it is not disputed, has become conclusive and final. A number of proceedings before the execution court and other forums had been agitated by the parties setting forth one right or the other over the buildings and properties covered by the Rent Control proceedings. Some of the buildings covered by the orders of eviction have already been delivered over to the landlords in the execution proceedings. Since there was some delay on the part of the execution court in delivering over the remaining buildings covered by the orders of eviction, the landlords approached this Court filing a writ petition for issuing appropriate orders/directions to the execution court to expedite the proceedings to give them the benefit of the orders of eviction. That writ petition, numbered as W.P.(C).5267 of 2009, was disposed by judgment dated WPC.18705/09 3 2.3.2009 directing the execution court to ensure that the execution petition is finally disposed of within a period of three weeks from the date of that judgment. The judgment rendered by this Court was challenged by way of a Special Leave Petition by respondents 1 and 3 in the present writ petition, who among others suffered the orders of eviction in the rent control proceedings. Special Leave Petition, numbered as S.L.P.No.7783 of 2009, was disposed by order dated 1.4.2009 by the apex court vide Ext.P11 order. It is profitable and worthy to reproduce the brief Ext.P11 order, which reads as hereunder: “The petitioners are, however, granted time till 31st January, 2010, to vacate the premises in question upon filing usual undertaking in this Court within four weeks from today. It is directed that in case the petitioners fail to vacate the premises in question within the aforesaid time, it would be open to the decree holder to file an execution petition for delivery of possession and in case such a petition has been already filed, an application shall be filed therein to the effect that the petitioners have not vacated the premises in question within the time WPC.18705/09 4 granted by this Court. In either eventuality, the Executing Court is not required to issue any notice to the petitioners. The Executing Court will see that delivery of possession is effected within a period of fifteen days from the date of filing of the execution petition or the application aforementioned. In case for delivery of possession any armed force is necessary, the same shall be deputed by the Superintendent of Police within forty eight hours from the date of requisition is received therefore. It is also directed that in case anybody else, other than the petitioners, is found in possession, he shall also be dispossessed from the premises in question. Needless to say that if the respondents feel aggrieved by this part of the order, it shall be open to them to seek its recall.” By Ext.P11 order, directed the petitioners in that S.L.P. to file an undertaking that they would vacate and surrender the premises on or before 31.1.2010. In otherwords, a grace period was provided by the apex court on filing of the undertaking by the petitioners in the S.L.P. to surrender vacant possession of the buildings to the landlords. 3. Ext.P1 suit filed by the defendants was pending as on WPC.18705/09 5 the date of Ext.P11 order passed by the apex court. It is not disputed that the petitioners in the S.L.P. gave an undertaking before the apex court, and in the light of Ext.P11 order, they are enjoying the grace period to continue in occupation of the buildings till 31.1.2010, the last day fixed for surrender. Though the S.L.P. has been filed only by two among the tenants, it is needless to point out, that in the light of the judgment rendered by this Court, which was challenged in the S.L.P., whoever be the tenants impleaded in that proceedings, the execution court was bound to dispose of the execution proceedings within the time limit fixed by this Court, that is, three weeks, which had been later extended subject to the undertaking given by the petitioners in the S.L.P. Though Ext.P1 suit has been pending as on the date when Ext.P11 order was passed, and the undertaking was given only by two of the plaintiffs therein, it has to be pointed out that the orders of eviction passed by the competent court has become final and conclusive, and the extended period is only for completion of the execution proceedings to give effect to the order of eviction and also surrender or vacation of the WPC.18705/09 6 building either through court or otherwise by the tenants. So much so, it is crystal clear that none of the tenants bound by the orders of eviction, can raise any challenge in surrendering vacant possession of their leaseholds and their occupation must cease by 31.1.2010. In Ext.P1 suit, which had been filed at an earlier point of time, the tenants have canvassed a case that they have obtained the assignment of land by way of pattas and that has to be demarcated and the boundaries of that land has to be fixed. An additional relief claimed by them was to restrain the landlords from disturbing or dispossessing them by executing the orders of eviction passed against them by the Rent Control Court. The landlords resisted the suit claim by filing written statement. In their written statement, among other contentions, they have contended that the suit is barred by res judicata as the claim of title set up over the suit property on the basis of the very same documents had been pressed into service in the rent control proceedings to deny the title of the landlords. According to the landlords, that denial of title canvassed by the tenants was found against. The landlords, after settling of the issues by the court applied WPC.18705/09 7 for deciding issue No.2 as to whether the suit is barred by resjudicata as a preliminarily issue. The learned Munsiff considered the question and after hearing both sides, passed Ext.P8 order deferring that issue for consideration with other issues at trial. Propriety and correctness of Ext.P8 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 4. I heard the counsel on both sides. The learned counsel for the respondents raised some preliminary objections that in the writ petition, only plaintiffs alone had been made as the respondents, but, not other parties in the suit. Another objection raised by the counsel is that as Ext.P8 order is a decision of the court with reference to one of the issues involved in the suit, though not with finality, as the acceptance of the case canvassed by the petitioner in the writ petition, the 1st defendant in the suit would result in the termination of the suit the order should have been challenged only by way of revision under Section 115 of the Code of Civil WPC.18705/09 8 Procedure and not by invoking the visitorial jurisdiction vested with this Court. The third objection was that no final decision was made even on issue No.2 by the court, but, only deferring of that issue for trial, and so much so, it can never be stated that there was any jurisdictional infirmity or patent illegality in the order passed by the court to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. I have considered the objections as referred to above by the learned counsel impeaching the entertainability of the writ petition. The nonimpleadment of the other defendants in the writ petition to challenge the correctness of Ext.P8 order is of no consequence as the plea of resjudicata is canvassed by the defendants landlords against the trial of the suit instituted by the respondents impleaded, who alone are the plaintiffs in the suit. So far as the objection raised that order is amenable to revisional jurisdiction of the court under Section 115 of the CPC, it has to be stated that whatever way this Court decide the correctness of Ext.P8 order, further enquiry by the court below is essential, as this Court in its exercise of visitorial jurisdiction cannot supplement a finding on the question of WPC.18705/09 9 resjudicata canvassed by the petitioners, over which, no findings have been entered by the court below. The other objection raised was that there was only a deference of a decision of issue No.2 by the trial court also cannot be approved, since the disputed question canvassed before the court challenging Ext.P8 order has to be appreciated in the backdrop of the entire case and totality of the facts and circumstances involved, where it is noticed that two of the plaintiffs in the suit have given a solemn undertaking before the apex court, as covered by Ext.P11 order, that they would surrender vacant possession of the remaining buildings covered by the execution proceedings. That undertaking is binding on other tenants also, more so for the reason as against them the judgment rendered by this court in the writ petition challenged in S.L.P. has become final. The question then emerges for consideration whether they can continue to prosecute the suit seeking a decree to restrain the landlords from executing that orders of eviction. One of the reliefs claimed in Ext.P1 suit by the tenants, who suffered the orders of eviction, which already stated, has become conclusive and WPC.18705/09 10 final, and beyond the pale of challenge, is a decree of perpetual injunction to restrain the landlords from evicting them from their leaseholds in execution of the orders passed by the Rent Control Court. The learned counsel for the respondents pointed out that that relief is sought for in relation to from disturbing their enjoyment and possession over 'A' and 'B' schedule properties, which takes in other land over which they claimed pattas, and thereby title. Whatever that be, in the light of the undertaking given before the apex court, atleast by two of the plaintiffs, the tenants are bound to unconditionally surrender and vacate from the leasehold buildings even assuming that they have got some land obtaining pattas from the Government or otherwise. So much so, in the given facts of the case, the question to be considered is whether the continuation of the suit while the execution proceedings is continuing in respect of the buildings under the occupation of the plaintiffs as tenants are yet to be surrendered, crops up for consideration. That question has to be considered by the trial court taking note of all the facts and circumstances involved in the case especially the order of the WPC.18705/09 11 apex court under Ext.P11 order, and, the undertaking given on the basis of that order by atleast two of the plaintiffs. 5. Suit for surveying and measuring of plaint 'A' and 'B' schedule properties and demarcation of its boundaries seeking an additional relief to restrain the defendants/the landlords from disturbing or dispossessing the plaintiffs/tenants, from 'A' and 'B' schedule properties and the buildings therein was instituted, admittedly, long after orders of eviction were passed against the tenants in the rent control proceedings. Plaintiffs had obtained assignment of the land 'A' and 'B' schedule, which are claimed to be puramboke lands, under pattas issued by the Government, is the case canvassed for the reliefs as aforementioned. Ext.P1 is the copy of the plaint in the suit. The rent control court allowed the petition for eviction moved by the landlords against the tenants/the plaintiffs in the above suit on the grounds under Section 11 (2) (b) and 11 (4) (i) and 11 (4) (iv) of the Kerala Buildings (Lease and Rent Control) Act by Ext.P4 dated 28.3.1992. Ext.P1 suit was instituted by the tenants nearly after a decade on WPC.18705/09 12 3.4.2004. Ext.P4 order would disclose that plaintiffs were the 6th, 7th, 8th and 11th counter petitioners in the rent control petition giving rise to Ext.P4 order. On the basis of the objections raised by the aforesaid tenants and others proceeded in the eviction proceedings, one among the points raised for consideration by the rent control court was whether the denial of title advanced by the counter petitioners 6, 7, 8, 10 and 11 bona fide. The very same pattas and other connected documents, on which the suit had been instituted for the reliefs claimed, had been produced to prove the denial of title of the landlords before the rent control court. The denial of title canvassed by the tenants on the basis of such documents was found to be not bona fide. Perusing Ext.P4 order passed by the rent control court, which has become final and conclusive, it is seen, so far as the building covered by the rent control proceedings the landlord tenancy relationship continued between the parties and the tenants are liable to surrender vacant possession. In view of the orders passed by the apex court in the S.L.P, and the undertaking given by two of the tenants, who are admittedly two among the four WPC.18705/09 13 plaintiffs in the suit, and such undertaking binding on all the plaintiffs, the tenants are bound to surrender vacant possession of the leasehold premises on or before the date fixed by the apex court and so unconditionally undertaken by them for enjoying that extended grace period in avoiding eviction. So, in the given facts of the case, any further step in trial of the present suit would result in negating and setting at naught the order passed by the apex court and the undertaking given by the tenants/plaintiffs. 6. Is the court helpless when confronted with a situation where the facts and circumstances ex facie demonstrate that the cause sought to be agitated, though not specifically interdicted by any law for the time being in force, would tantamount to the majesty of the court, its supremacy and, further, tend to flagrant flouting of the undertaking given in compliance with the orders of the apex court ? Even if the ordinary rules of procedure there is no remedy, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. The WPC.18705/09 14 court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of a wide scope and ambit. So much so, the question whether any further step in trial of the suit can be continued till honouring of the undertaking given in surrendering vacant possession of the leasehold premises by the plaintiffs/tenants in compliance of the orders of the apex court has to be considered by the trial court. 7. In the given facts of the case the petitioners in the writ petition can move an application before the trial court seeking for stay of all further proceedings in the suit under Section 151 of the CPC, till the period fixed by the apex court under Ext.P11 order for surrender of the leasehold premises by the tenants. If any such application is filed by the petitioners, within a period of three weeks from the date of this judgment, the court below shall consider and dispose that application, after hearing both sides, taking note of the observations made above and in accordance with law, within a further period of two weeks. The further proceedings of the WPC.18705/09 15 case including local inspection by the Commissioner, who has been appointed by the court on the application of the plaintiffs, shall proceed and continue only after a decision is taken on the orders passed by the court on the application, if any, moved within the time by the petitioner before the court below. In the light of the above directions, the challenges against Ext.P8 order canvassed by the petitioner are not examined in detail by this Court; but, in case, the court below pass any order to proceed with the trial of the suit, it is open to the petitioner to approach this Court again to canvass the correctness of Ext.P8 order. Reserving the right of the petitioner to do so, the writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp