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2021 Supreme(Online)(KER) 5023
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
CHATHOTH PUNNAROTH NANU – Appellant
Versus
NAZEER – Respondent
OP (RC)/125/2020
K.MOHANAKANNAN, SMT.T.V.NEEMA, R.GOPAN, P.M.SANEER
Tenants are entitled to restitution of property once an ex parte eviction order is set aside, irrespective of subsequent developments concerning the landlord's business in the premises.
Headnote:
Eviction - Rent Control - Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(3), 11(4)(v), 23(1)(h); Code of Civil Procedure, 1908 - Section 144 - Tenants entitled to restitution after setting aside eviction order.
Fact of the Case:
Petitioners sought eviction of tenants from a shop room under the Kerala Buildings Act. An ex parte eviction order was passed, which was later set aside, prompting the tenants to seek restitution of the shop room.
Finding of the Court:
The court held that the tenants were entitled to restitution since the ex parte eviction order was set aside. The landlords failed to show substantial changes post-eviction that would affect the tenants' rights.
Issues: Whether the Rent Control Court's order directing the landlords to re-deliver the shop room to tenants was warranted.
Ratio Decidendi: The core principle was that upon setting aside an ex parte eviction order, the tenants are entitled to restitution of the premises, restoring the status quo ante as mandated by Section 144 of the Code of Civil Procedure.
Final Decision: The original petition was dismissed, and the order directing restitution to the tenants was upheld.
JUDGMENT
Anil K. Narendran, J.
The petitioners filed R.C.P.No.130 of 2017 before the Rent Control Court (Munsiff), Vatakara, a petition filed under Sections 11 (3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 , seeking eviction of respondents 1 and 2 herein-tenants from the petition schedule shop room. The 3rd respondent herein is the alleged sub-lessee. In the Rent Control Petition, the tenants filed counter opposing the order of eviction sought for. The 3rd respondent filed separate counter. On 07.03.2019, the tenants and the alleged sub- lessee were set ex parte and the Rent Control Court passed an order of eviction under (3) and 11(4)(v) of the Act. On 21.03.2019, the tenants filed I.A.No.528 of 2019 in R.C.P.No.130 of 2017, under Section 23 (1)(h) of the Act, seeking an order to set aside the ex parte order dated 07.03.2019. In that application, the landlords filed a counter statement dated 24.06.2019. The delivery of the petition schedule shop room was effected on 23.05.2019, as evidenced by Ext.P5. The landlords-judgment holders have taken the risk of effecting delivery without giving notice to the tenants in the execution petition. The application filed by the tenants to set aside the ex parte order of eviction was allowed by Ext.P6 order dated 07.07.2019. Thereafter, the tenants filed I.A.No.1100 of 2019 in R.C.P.No.130 of 2017, under Section 144 of the Code of Civil Procedure, 1908 , seeking re- delivery of the petition schedule shop room. The landlords filed counter statement opposing the relief sought for in that application. After considering the rival contentions, the Rent Control Court allowed I.A.No.1100 of 2019 in R.C.P.No.130 of 2017 by Ext.P12 order dated 08.01.2020, whereby the landlords are directed to re-deliver the petition schedule shop room to the tenants within a period of one month from the date of that order. Feeling aggrieved by Ext.P12 order of the Rent Control Court, the landlords are before this Court in this original petition filed under Article 227 of the Constitution of India.
2. On 12.11.2020, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondents. This Court granted an interim order staying the delivery of the shop room scheduled in R.C.P.No.130 of 2017 of the Rent Control Court, Vatakara pursuant to Ext.P12 order, for a period of eight weeks. The said interim order, which was extended from time to time, is still in force.
3. Heard the learned counsel for the petitioners-
landlords and also the learned counsel for respondents 1 and 2-tenants. Despite service of notice, none appears for the 3rd respondent-the alleged sub-lessee.
4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P12 order dated 08.01.2020 of the Rent Control Court, whereby I.A.No.1100 of 2019 in R.C.P.No.130 of 2017 filed by the tenants stands allowed and the landlords are directed to re-deliver the petition schedule shop room to the tenants, within one month from the date of that order.
5. During the course of arguments, the learned counsel for the petitioners-landlords would place reliance on Ext.P13 series of photographs in order to contend that the 3rd petitioner has already started a Fancy and Footwear shop in the petition schedule shop room and it is a subsequent event which ought to have been taken note of by the Rent Control Court before ordering re-delivery of the petition schedule shop room. Since the Rent Control Petition is of the year 2017, without interfering with Ext.P12 order, in exercise of the revisional jurisdiction under Section 20 of the Act, a time- bound consideration of R.C.P.No.130 of 2017 may be ordered and till the disposal of R.C.P. the interim order granted in this Rent Control Revision may continue to be in force, so as to enable the 3rd petitioner herein to conduct Fancy and Footwear shop in the petition schedule shop room.
