IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 WP(C).No. 15261 of 2006(P) RCRP.1/2005 of ADDL.DISTRICT COURT-I, MAVELIKKARA PETITIONER: ------------ RASHEEDA RAHIM, WIFE AND POWER OF ATTORNEY HOLDER OF RAHIM, GREEN HOUSE, PERUNGALA MURI, KAYAMKULAM VILLAGE. BY ADV. SRI.BABU KARUKAPADATH SRI.K.A.NOUSHAD RESPONDENT: ------------- GRACYKUTTY MATHUKUTTY, VAINTHAMANGALATHU, THEKKEMANKUZHY MURI, BHARANIKAVU VILLAGE. BY ADV. SRI.R.REJI SMT.SHIVA RAJA RESHMI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON30/11/2007, THE COURT ON 10/01/2008, DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 01/04/1980 IN CRP.NO.3069/1979 OF THIS COURT. EXT.P2 TRUE COPY OF THE ORDER DATED 8/11/1990 IN RCA.NO.47/90 OF THE RENT CONTROL APPELLATE AUTHORITY II, MAVELIKKARA. EXT.P3 TRUE COPY OF THE ORDER DATED 7/6/1993 IN E.P.NO.76/91 IN BRC (OP) NO.30/75. EXT.P4 TRUE COPY OF THE COMPROMISE PETITION DATED 25.8.1993 FILED BY THE TENANT AND THE RESPONDENT IN RCRP.NO.1/93 BEFORE THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA. EXT.P5 TRUE COPY OF THE ORDER DATED 15/9/1993 IN RCRP.NO.1/1993 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY II, MAVELIKARA. EXT.P6 TRUE COPY OF EA.NO.12/1994 IN EP.NO.76/91 IN BRC(OP) NO.30/1975 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KAYAMKULAM. EXT.P7 TRUE COPY OF THE COMMISSION REPORT DATED 7.3.1994 SUBMITTED BY ADVOCATE COMMISSIONER SRI.P.SADASIVAN IN BRC(OP)NO.30/1975. EXT.P8 TRUE COPY OF THE ORDER DATED 5/4/2000 IN EA.NO.12/1994 IN EP.NO.76/91 IN BRC(OP)NO.30/1975 OF THE MUNSIFF'S COURT, KAYAMKULAM. EXT.P9 TRUE COPY OF THE RELEASE DEED NO.2591/1986 OF SRO KAYAMKULAM EXECUTED BY THE RESPONDENT IN FAVOUR OF HER SON SHIBU MATHUKUTTY. EXT.P10 TRUE COPY OF THE JUDGMENT DATED 28/3/2006 IN RCRP. NO.1/2005 OF THE ADDITIONAL DISTRICT COURT, MAVELIKARA. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.BALAKRISHNAN NAIR & K.T.SANKARAN,JJ. ---------------------------------------------------- W.P.(C). NO. 15261 OF 2006 P ---------------------------------------------------- Dated this the 10th January, 2008 JUDGMENT K.T.Sankaran,J. The proceedings in this case have a chequered career. An order passed by the Rent Control Court under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') was not fully implemented for the last 27 years and the landlady, who got an order of eviction under Section 11(4)(iv) of the Act, has not so far reconstructed the building. 2. B.R.C.(O.P.) No.30 of 1975, on the file of the Munsiff's Court, Kayamkulam was filed by the respondent herein under Sections 11(3) and 11(4)(iv) of the Act. The husband of the petitioner herein was the respondent in that Petition. The case was finally disposed of by Exhibit P1 order of the High Court in C.R.P.No.3069 of 1979, dated 1.4.1980, whereby this Court confirmed the order of eviction under Section 11(4)(iv) of the Act. There were other tenants as well and four Civil Revision Petitions were disposed of together by the common order dated 1.4.1980. The operative portion of the common order in the Revisions reads as follows: “In the result the Civil Revision Petitions are disposed of as follows:- The petitioners will vacate the rooms in their occupation in two months from to-day. The landlord will construct the building in one year from the day he gets possession of these rooms. If the petitioners do not vacate W.P.(C). NO.15261 OF 2006 P :: 2 :: as directed above the landlord can evict them in execution of this order. After re-construction four rooms as stated in the preceding paragraph should be made available to these four petitioners. They will have the first option to have those buildings let out to them on fair rent. If there is any delay in the re-construction of the building any of the petitioners can move the Rent Control Court for appropriate direction in this behalf and the Rent Control Court shall in accordance with Proviso 1 and 2 to Section 11(4)(iv) consider such application and grant relief to the tenants as provided for in these provisos. In the circumstances of these cases I make no order as to costs.” 3. The tenant, namely, the since deceased husband of the petitioner, vacated the building on 5.6.1980. The landlady demolished the building. However, the landlady did not reconstruct the building within the stipulated time. The tenant filed I.A.No.867 of 1981 before the Rent Control Court under the second proviso to Section 11(4)(iv) of the Act. That application was disposed of on 14.12.1987 and the landlady was directed to complete the construction within one year from the date of the order. The landlady filed R.C.A.No.47 of 1990 before the Rent Control Appellate Authority challenging that order. The Appellate Authority dismissed the appeal by Ext.P2 judgment dated 8.11.1990. However, six months' time was granted to the landlady to complete the construction and to put the tenant in possession of a suitable accommodation, with liability to pay fair rent. It was further directed that in case the landlady failed to comply with the direction, the tenant shall be put back in possession of the site where the building stood. W.P.(C). NO.15261 OF 2006 P :: 3 :: 4. The landlady failed to comply with the order dated 8.11.1990 also. Thereupon the tenant filed E.P.No.76 of 1991 to recover possession of the site. The Execution Petition was allowed as per Ext.P3 order dated 7.6.1993. All the objections raised by the landlady were rejected by the executing court. The operative portion of the order dated 7.6.1993 reads as follows: “Hence I find that the petitioner is entitled to get back possession of the site as scheduled in the execution petition. Deliver the site scheduled in the petition on 10.6.1993 and report on 11.6.1993.” Ext.P3 order was challenged in R.C.R.P.No.1 of 1993, before the Additional District Court, Mavelikkara. During the pendency of the Revision, the matter was settled between the parties and Ext.P4 compromise petition, dated 25.8.1993, was filed before the revisional authority. Accepting Ext.P4 compromise petition, R.C.R.P.No.1 of 1993 was disposed of by the revisional court as per Ext.P5 order dated 15.9.1993. The terms of the compromise would indicate that the landlady would provide another room, which she got possession from the tenant C.M.George. It was also agreed that the landlady would renovate the building in the manner indicated in the compromise petition before 30.11.1993. The operative portion of Ext.P5 order, accepting the compromise, reads as follows: W.P.(C). NO.15261 OF 2006 P :: 4 :: “The compromise filed by the parties is accepted and it is directed that if the landlord fails to comply with the terms of the compromise, the tenant shall be put in possession of that portion of land as is directed in the order dated 7.6.1993 in E.P.No.76/91 in BRC (O.P) 30/75. This revision is disposed of as above. There will be no order as to costs.” 5. Complaining that the landlady failed to comply with the terms of the compromise, the tenant filed Ext.P6 application, E.A.No.12 of 1994, for getting delivery of the site. An Advocate Commissioner was appointed by the Court to inspect the site. The Commissioner filed Ext.P7 report. In E.A.No.12 of 1994, evidence was taken and it was disposed of by the executing court as per Ext.P8 order dated 5.4.2000. The tenant had filed another application, namely, E.A.No.21 of 1995, to bring to the notice of the executing court the fact that the son of the landlady had filed O.S.No.105 of 1994 before the Sub Court, Mavelikkara, claiming ownership over the property covered by Ext.P4 compromise. The son of the landlady had also sought for an injunction against the enforcement of the order in execution. He contended that the landlady had demised the property to him as per release deed No.2591 of 1986, Sub Registrar's Office, Kayamkulam. The executing court disposed of E.A.Nos.12 of 1994 and 21 of 1995 by Ext.P8 common order dated 5.4.2000. E.A.No.12 of 1994 was allowed and it was held that the tenant was entitled to get back possession of the site as scheduled in the Execution Petition. The tenant was permitted to take W.P.(C). NO.15261 OF 2006 P :: 5 :: steps for delivery of the site. In view of the order in E.A.No.12 of 1994, E.A.No.21 of 1995 was dismissed as unnecessary. 6. Ext.P8 order dated 5.4.2000 was challenged by the landlady in R.C.A.No.3 of 2000. That appeal was subsequently withdrawn to enable her to file a Rent Control Revision under Section 14 of the Act. Thereafter, the landlady filed R.C.R.P.No.1 of 2005 before the Additional District Court, Mavelikkara, challenging Ext.P8 order. Before the revisional court, it was contended by the tenant that O.S.No.105 of 1994, filed by the son of the landlady, was dismissed for non-prosecution and subsequently, O.S.No.257 of 2005 was filed by him before the Munsiff's Court, Kayamkulam, claiming exclusive right over the land in question. The District Court disposed of R.C.R.P.No.1 of 2005 as per Ext.P10 order dated 28.3.2006 and the matter was remanded to the executing court for fresh disposal. Ext.P10 order is under challenge in this Writ Petition. What prompted the revisional court to remand the case was that when the matter was pending in R.C.A.No.3 of 2000 (which was subsequently withdrawn with permission to file a Revision), the case was referred to Adalath and that “some sort of agreement was entered into between the parties”. It was stated by the revisional court that the terms of the agreement were not reduced into writing by the Adalath Committee. The revisional court recorded that the counsel for the tenant conceded that the landlady had W.P.(C). NO.15261 OF 2006 P :: 6 :: agreed to change the roofing of the alternative room and to make it safe and the tenant agreed to accommodate himself in that room. On the ground that there is change of circumstance after the order in E.A.No.12 of 1994, the revisional court held thus: “So since there is some change of circumstances taken place after the order in E.A. 12/94 and some further evidence is also required on the question as to whether the building now renovated as per the plan and permit obtained by the landlady is fit for occupation and whether the contention of the tenant that even after the renovation it is not fit for occupation etc. and without ascertaining the facts it is not possible to come to a conclusion that the building is not fit for occupation as found by the lower court”. The revisional court set aside the order passed by the executing court and the executing court was directed to dispose of the matter afresh after affording an opportunity to the parties to prove whether the building after renovation is fit for occupation or not. It was held that if it is fit for occupation, the tenant has to occupy the building on payment of fair rent to be fixed by the executing court in that regard. 7. The writ petitioner contends that no agreement was arrived at before the Adalath which was held under the Presidentship of the Sub Judge, Mavelikkara and the matter was sent back to the Court for disposal on the merits. The petitioner also challenges the statement in the order impugned that the counsel for the tenant had conceded as to certain facts. W.P.(C). NO.15261 OF 2006 P :: 7 :: Normally, when a party challenges the statement in the order as to what transpired in the Court, the party who challenges the same has to approach the same Court with a review petition. In the facts and circumstances of the case, we do not think it necessary to direct the petitioner to approach the revisional court. There is no dispute that the matter was referred to the Adalath. It is also not in dispute that no agreement was arrived at before the Adalath and the matter was sent back to the court for disposal on the merits. When the matter was thus sent back, unless the parties entered into a compromise, the Court could not have speculated as to what transpired before the Adalath. The revisional court was not justified in setting aside the order passed by the executing court on the basis of such speculations and surmises. Had the parties entered into a compromise, it would have been put in black and white and the court could have acted on the same. It is to be noted that there was a compromise as evidenced by Ext.P4 compromise petition and the revisional court in R.C.R.P.No.1 of 1993 (Ext.P5) had recorded that compromise and disposed of the Revision in terms of the compromise. Any subsequent compromise could be on the basis of the compromise petition or an agreement before the Adalath or in any other legally acceptable manner. The revisional court was not right in getting some answers from the counsel and, based on such answers, in setting aside the well considered order of the executing court and in remanding the matter to the executing court for fresh disposal. The W.P.(C). NO.15261 OF 2006 P :: 8 :: revisional court was also not justified in directing a roving enquiry to be made as to the agreement between the parties and the consequences of the agreement and also as to whether the terms of such agreement were implemented. Ext.P10 order is vitiated by errors of law and the order is illegal and perverse. We are, therefore, constrained to set aside Ext.P10 order. The revisional court shall dispose of R.C.R.P.No.1 of 2005 on the merits in accordance with law, after affording an opportunity of being heard to the parties. The Writ Petition is allowed as above. No orders as to costs. (K.BALAKRISHNAN NAIR) Judge (K.T.SANKARAN) Judge ahz/