Kerala High Court
Sureshkumar D vs P.V.Madhavankutty on 9 November, 2017
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939
CRP.No. 596 of 2017 ()
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E.P.136/2016 IN O.S.1951/2009 OF THE ADDITIONAL MUNSIFF-II,
THIRUVANANTHAPURAM
REVISION PETITIONER/JUDGMENT DEBTOR/PLAINTIFF:
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SURESHKUMAR D.,
S/O.DAMODHARAN NAIR,
PROPRIETOR, HOTEL SAMTHRIPTHI,
KARAMANA JUNCTION, THIRUVANANTHAPURAM,
RESIDING AT K.P.9/960, KALLIYOOR,
NEMOM P.O., THIRUVANANTHAPURAM-695020.
BY ADVS.SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
SRI.GOVIND PADMANAABHAN
SRI.AJIT G.ANJARLEKAR
RESPONDENTS/DECREE HOLDERS/DEFENDANTS:
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1. P.V.MADHAVANKUTTY,
PATTAVILAKATHU VEEDU,
TC-41/19, MANACAUD P.O.,
THIRUVANANTHAPURAM-695009.
2. T.V.THULASI,
D/O.P.THANKAMMA,
PATTAVILAKATHU VEEDU, TC-41/19,
MANACAUD P.O.,
THIRUVANANTHAPURAM-695009.
R2 BY ADV. SRI.R.V.SREEJITH
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 09-11-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
EL
ANIL K. NARENDRAN, J.
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C.R.P.No.596 of 2017
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Dated this the 9th day of November, 2017
O R D E R
The petitioner, who is the judgment debtor in E.P. No.136/2016 in O.S.No.1951/2009 on the file of the III Additional Munsiff's Court, Thiruvananthapuram, is before this Court in this Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908 seeking an order to set aside the order dated 11.10.2017 of the said court in that execution petition.
2. On 2.11.2017 when this Civil Revision Petition came up for admission this Court issued notice on admission to the respondents by special messenger. This Court has also granted an interim stay of all further proceedings in E.P.No.136/2016 in O.S.No.1951/2009 on the file of the III Additional Munsiff's Court, Thiruvananthapuram for a period of three weeks.
3. Heard the learned counsel for the petitioner/judgment debtor and also the learned counsel for the respondents/decree holders.
4. O.S.No.1951/2009 is one filed by the petitioner C.R.P.No.596 of 2017 :-2-:
seeking permanent prohibitory injunction restraining the respondents herein, who are the defendants in that suit, and their henchmen from forcefully evicting the plaintiff from the plaint schedule property and building and also restraining them from interfering with the peaceful conduct of the hotel business in the plaint schedule property and building, till such time he is evicted by due process of law.
5. During the pendency of that original suit, the matter was compromised and a decree was also passed on 6.10.2012 in terms of the said compromise. As per the terms of the said compromise decree, the petitioner who was the plaintiff in that suit agreed to vacate the plaint schedule property after demolishing the shed constructed by him within 24 months from the date of decree. The arrears of license fee to be paid by the petitioner was adjusted with the security deposit given to the respondents. It was also agreed that the petitioner is liable to pay license fee at the rate of 3,000/- per month from 1.9.2012 to the respondents.
6. When there was default on the part of the petitioner in complying with the terms of the compromise, the respondents C.R.P.No.596 of 2017 :-3-:
filed E.P.No.136/2016. In that execution petition the court below passed an order dated 11.10.2017, whereby the said execution petition stands allowed by issuing delivery warrant to hand over possession of decree schedule property to the respondents/decree holders and the court has also issued Order XXI Rule 37 notice for realisation of the amount. The reasoning of the court below, as contained in paragraph 4 of the impugned order reads thus:
"4. The counsel for the judgment debtors challenged the maintainability of compromise decree by contending that plaintiff can be evicted only as provided in Kerala Building Lease and Rent Control Act. Thus this compromise decree is not valid. According to the plaintiff/judgment debtor himself the decree schedule property was given on license to him for conducting business after constructing a shed there. So only property was given on lease. Kerala Building Lease and Rent Control Act is applicable only if the building is given on rent. Thus the contention of learned counsel is not sustainable. Judgment debtor/plaintiff has no case that he has complied with the terms of compromise decree. Thus decree holder is entitled to get execute the compromise decree through process of executing court. Thus the petition is liable to be allowed. Issue delivery warrant to hand over possession of decree schedule property to the decree holder and issue Rule 37 notice in connection with realisation of the amount."
C.R.P.No.596 of 2017 :-4-:
7. The learned counsel for the petitioner would contend that, the petitioner being a tenant of the plaint schedule property is entitled for protection under the Kerala Building (Lease and Rent Control) Act, 1965 and as such, he can be evicted from the decree schedule property only in accordance with the provisions under the said Act. Therefore, the contention of the learned counsel for the petitioner is that, the petitioner being a statutory tenant under the Kerala Building (Lease and Rent Control) Act cannot be evicted in terms of the compromise decree passed in O.S.No.1951/2009.
8. The above contention of the learned counsel for the petitioner cannot be accepted. Even going by the admitted case of the petitioner, the land was originally given on payment of a license fee for conducting business after constructing a shed. The terms of the said agreement would make it explicitly clear that, as on the date of execution of that agreement there was no building in the property in question. If that be so, it was only a license agreement in respect of the land in question, which cannot be equated to a tenancy agreement, falling within the scope of the provisions under the Kerala Building (Lease and C.R.P.No.596 of 2017 :-5-:
Rent Control) Act.
9. Another contention raised by the learned counsel for the petitioner is that, when the suit was one for permanent prohibitory injunction, the terms of the compromise whereby liability is fastened upon the petitioner to pay the arrears of license fee, was beyond the scope of a compromise which is legally permissible under Order XXIII, Rule 3 of the Code of Civil Procedure. The said contention of the learned counsel for the petitioner is untenable, as the subject matter of the agreement or compromise need not necessarily be the same as the subject matter of the suit.
10. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the C.R.P.No.596 of 2017 :-6-:
fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
11. In Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC 1] a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law.
12. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the execution court in the impugned order dated 11.10.2017 is neither perverse nor patently illegal warranting an interference of this Court in C.R.P.No.596 of 2017 :-7-:
exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
13. The learned counsel for the petitioner would submit that, the petitioner may be granted four months time to surrender vacant possession of the premises in question and a reasonable time may also be granted for clearing arrears of license fee.
14. The learned counsel for the respondents would submit that, the suit is of the year 2009, which was compromised in the year 2012. Despite the said compromise, the petitioner failed to surrender vacant possession and he has not even paid the arrears of license fee. However, the learned counsel would submit that, a reasonable time may be granted to the petitioner to give vacant possession of the premises in question and also clear the arrears of license fee.
In such circumstances, though the challenge made against the impugned order dated 11.10.2017 in E.P.No.136/2016 in O.S. No.1951/2009 stands repelled, this Civil Revision Petition is disposed of with the following directions:
a) The petitioner shall clear the entire arrears of license fee as on the date of this order, within a period of one month from the date of receipt of a C.R.P.No.596 of 2017 :-8-:
certified copy of this order.
b) The petitioner is granted three months time to surrender vacant possession of the plaint schedule property to the respondents, on condition that he shall file an undertaking before the execution court to that effect within two weeks from the date of receipt of a certified copy of this order and shall continue to pay the license fee without any default.
He shall also not induct any strangers into the plaint schedule property during the aforesaid period. An undertaking in the form of an affidavit shall be filed before the execution court within two weeks from the date of receipt of a certified copy of this order. c. If the petitioner is complying with the aforesaid conditions, the execution court shall keep in abeyance further proceedings in E.P.No.136/2016 in O.S.No.1951/2009 for a period of four months. d. In case there is any default on the part of the petitioner in fulfilling any one of the aforesaid conditions, it will be open to the execution court to proceed with E.P.No.136/2016 further.
Sd/-
ANIL K. NARENDRAN
JUDGE
//True Copy//
ab P.A to Judge