Hameed Kunju vs Nazim

3) The controversy involved in this appeal is short. It arises out of an eviction matter. However, in order to appreciate the controversy in its proper Digitally signed by ASHA SUNDRIYAL Date: 2017.07.17 perspective, we consider it apposite to set out the 16:51:10 IST Reason: 1 factual background of the case in detail with a view to show as to how the litigation between the parties progressed in the last 11 years before the Courts below and how it was dealt with at different stages which eventually led to passing of the impugned order giving rise to filing of this appeal by the landlord by way of special leave before this Court.

4) The appellant is the owner/landlord of eight schedule suit shops details of which are specified in the eviction petition. The respondent is in possession of one shop out of eight shops as tenant at a monthly rent of Rs.350/-. The remaining seven shops were in occupation of other tenants at all relevant time.

5) The appellant filed one eviction petition (OP(RC) No.3/2006) before the Rent Controlling Court (hereinafter referred to as the “Trial Court”) against his 8 tenants, which included the present respondent herein also. The eviction was claimed under Section 11(2)(b) and 11(3) of the Kerala Buildings (lease and Rent Control) Act, 1965 2 (hereinafter referred to as “the Act”) inter alia on the ground of bona fide need of the appellant to start business in the schedule suit shops. The appellant filed the eviction petition through his power of attorney holder. All the tenants including the respondent herein entered appearance and filed their written statements. They denied the material averments made in eviction petition.

6) By order dated 13.08.2007, the Trial Court placed the respondents (tenants) ex parte because on that day none of the respondents appeared. The Trial Court then recorded evidence of the appellant (landlord) and his witness and adjourned the case to 21.08.2007 for further hearing. On 21.08.2007 also, the tenants remained absent. The Court passed the eviction order on that day against all the tenants including the respondent herein by accepting the case set up by the appellant on merits.

8) After the remand, the Trial Court adjourned the case on few dates such as 29.09.2008, 04.11.2008 and 03.12.2008 and then fixed for 08.01.2009. On 08.01.2009, since the Power of Attorney of the appellant and proof affidavit were neither filed nor the Power of Attorney Holder was present, the Trial Court dismissed the eviction petition (3/2006) for default.

11) Aggrieved by the said order, the appellant carried the matter to the appellate authority in appeal being RCA 12/2011.

15) On 31.07.2014, the Trial Court passed an eviction order and decreed the appellant's eviction petition. The Trial Court directed eviction of all the tenants from the suit shops including that of the respondent herein from his shop. Since the tenants did not vacate the suit shops, the appellant filed execution application (EP 60/2014). Notices were issued to the tenants for hearing of the execution case on 16.01.2015. As the Court did not sit on that day, the petition was adjourned to 04.02.2015. On that day, the tenants including the respondent entered appearance pursuant to notice served on them. However, the petition was adjourned to 05.03.2015 to enable the tenants to file their 7 objections. When the matter came up on 05.03.2015, it was submitted on behalf of the tenants that their objections have been filed. However, the matter was adjourned to 19.03.2015. On 19.03.2015, the Trial Court found that the tenants had not filed their objections and hence the Trial Court passed an order to deliver the suit shops to the appellant on 25.03.2015 and fixed the matter on 26.03.2015 for filing delivery report. The appellant (petitioner) accordingly took delivery of the suit shops with the police aid by breaking open the locks put on the suit shops.

7) Felt aggrieved by the aforementioned eviction order, the tenants filed an appeal before the Rent 3 Control Appellate Authority being RCA No. 51/2007. By order dated 28.08.2008, the appellate authority allowed the appeal, set aside the order dated 21.08.2007 and remanded the eviction petition (RC(OP) No.3 of 2006) to the Trial Court for its fresh disposal on merits in accordance with law.

12) By order dated 28.01.2014, the appellate Authority allowed the appeal, set aside the aforementioned dismissal orders and restored the appellant's original eviction petition being R.C.(OP) No. 3/2006 and remanded the eviction petition to the Trial Court for trial on merits. The appellate Court, however, while restoring the eviction petition directed the appellant (petitioner) to pay a sum of Rs.4000/- by way of cost to the tenants 5 (respondents) and Rs.2000/- to the District Legal Services Authority within 15 days failing which the appeal was to be dismissed. The parties were directed to appear before the Trial Court on 28.02.2014 to enable the Trial Court to proceed with the trial of the eviction petition and conclude the same at an early date.

16) On 26.03.2015, the Executing Court noticed that the possession of all the suit shops has been delivered to the appellant (decree holder), therefore, closed the execution case (E.P.No.60/2014) by recording satisfaction of the order.

21) The High Court allowed the writ petition and while in substance quashed all the four orders impugned in the writ petition referred supra remanded the case to the Trial Court for fresh trial with the following directions:

40) Apart from what is held above and disagreeing with the view of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the appellant had 18 ensured compliance of the order of the earlier appellate Court by paying the cost of Rs.4000/- to the respondent's counsel and Rs.2000/- to the legal services. Indeed, the very fact that the appellant had stated in his counter affidavit duly supported by an affidavit of his advocate (pages 51-52 of SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal except denying.

41) In the light of what we have held above, there was, in our view, neither any basis nor any justifiable reason for the High Court to have directed holding of any factual inquiry into the question of payment of cost. The directions to hold an inquiry on this issue is, therefore, wholly illegal and uncalled for.

42) We are also of the considered opinion that the applications filed by the respondent for setting aside 19 of the eviction orders dated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation of delay in filing such applications and lastly, an application filed for giving redelivery of suit shop were in the nature of abusing the process of the Court and were liable to be dismissed which unfortunately the High Court failed to do so and went on to entertain such applications.

43) We also find that while issuing impugned directions, the High Court again exceeded its supervisory jurisdiction under Article 227 when it went to the extent of issuing direction to the Trial Court to "allow" the applications IA Nos. 789 and 790 of 2015 filed by the respondent.

45) Be that as it may, once we hold that the impugned order is without jurisdiction, the same deserves to be set aside.

47) Before parting, we consider it apposite to observe that the object of the Rent Laws all over the State is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.

48) We sincerely feel that the eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction 21 is claimed on the ground of bona fide need of the landlord. We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases.

49) As a result of the foregoing discussion, the appeal succeeds and is allowed with costs of Rs.25,000/- payable by the respondent to the appellant. The impugned order is set aside and all the aforementioned applications filed by the respondent before the Trial Court in main eviction case No. RC(OP)No.3/2006 and EP No. 60/2014 are dismissed as being wholly misconceived and devoid of any merit. Costs as awarded above.

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