TMI Blog2017 (7) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper remedy without first filing the appeal and get the same decided by the appellate Court on its merit in accordance with law. The executing Court having seized of the applications filed by the Respondent, there was no justification on the part of the High Court to have entertained the writ petition and decided them like an original court. All that the High Court, in such circumstances, could do was to request the executing Court to dispose of the pending applications (IAs) filed by the Respondent on their respective merits leaving the parties to challenge the orders once passed on such applications by filing appeal, before the appellate authorities. It was, however, not done. Once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein - there was absolutely no case made out by the Respondent on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsy in its proper perspective, we consider it apposite to set out the 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 ₹ 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 (hereinafter referred to as the Act ) inter alia on the ground of bona fide need of the Appellant to start bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2011. 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 ₹ 4000/- by way of cost to the tenants (Respondents) and ₹ 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. 13. After remand of the eviction petition to the Trial Court, though there was no need to again issue notice to the parties for their appearance for the reason that the appellate Court had already fixed the date for the appearance of the parties before the Trial Court on 28.02.2014, yet the Trial Court in its judicial discretion directed issuance of fresh notice to all the parties to the eviction petition for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, he alone pursued the issue further and filed one application being EA No. 35/2015 in decided execution petition (EP 60/2014) and made a prayer therein that the order dated 19.03.2015 directing delivery of possession should be set aside. 19. On 26.03.2015, the Respondent filed one application (IA 789/2015) in main case (RC(OP) No. 3/2006) and prayed therein that the eviction order dated 31.07.2014 passed by the Court be set aside on the ground that the tenants were neither put to notice nor were heard before the order was passed. An application (IA 790/2015) for condonation of delay of 180 days in filing the application for setting aside the order dated 31.07.2014 was also filed. Another application (IA791/2015) was filed by the Respondent seeking therein a prayer for redelivery of the shop to him. 20. During pendency of these applications made by the Respondent and before any order could be passed by the Trial Court/Executing Court, the Respondent approached the High Court Under Article 227 of the Constitution of India in writ petition and questioned the legality and correctness of four orders of the Trial Court/Executing Court. These orders were: (1) eviction order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss an order closing I.A. No. 791 of 2015 in R.C.(O.P.) No. 3 of 2006, reserving liberty with the tenants to move the execution court for redelivery, if they succeed in the enquiry to be held rent control court, regarding payment of the sum of ₹ 4,000/- as costs. 22. It is against this order, the landlord has felt aggrieved and filed this appeal by way of special leave before this Court. 23. Heard Mr. Raghenth Basant, learned Counsel for the Appellant and Mr. Venkita Subramoniam T.R., learned Counsel for the Respondent. 24. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and dismiss the writ petition filed by the Respondent out of which this appeal arises. 25. The short question which arises for consideration in this appeal is whether the High Court was justified in allowing the writ petition filed by the Respondent-tenant Under Article 227 of the Constitution and was, therefore, justified in interfering in the four orders of the Trial Court/Executing Court impugned therein and, in consequence, justified in remanding the case to the Trial Court for decidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the suit shops including the shop in possession of the Respondent in accordance with provisions of Order 21 Rule 35 of the Code. It should also have been appreciated that seven tenants had not pursued their case against the same eviction decree and allowed the Appellant to obtain possession of the suit shops. Whereas it was only the Respondent who had raised the frivolous pleas against such action in these proceedings. 33. In our considered view, once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein. 34. Apart from what is held supra, we are of the considered opinion that there was absolutely no case made out by the Respondent on the merits calling any kind of interference by the High Court in its supervisory jurisdiction Under Article 227 in any of the four orders. The reasons are not far to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the Appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of ₹ 4000/- to the Respondent's counsel and ₹ 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 of the eviction orders dated 31.07.2014, 19.03.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
