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1983 DIGILAW 76 (KER)

YOGIRAJ v. RAVINDRANATH

1983-03-16

BALAKRISHNA MENON

body1983
Judgment :- 1. This Second Appeal is against the appellate order of the District Court, Kozhikode directing the removal of obstruction by the appellant against the execution of the order of the Rent Control Court, Kozhikode in O.P.R.C. No. 151 of 1978. A building belonging to the decree-holder was allotted to the judgment debtor Kalayani an employee of the Telegraph Department as per orders of the Accommodation Controller and she occupied the building in 1972. She had her residence in the building with family, and her husband Ramunni was running a tailoring institute by name Ambedkar Technical Institute in the same building. In February 1977 the appellant obtained possession of the building from Ramunni and he is conducting the Technical Institute and yoga treatment centre there. The respondent landlord instituted 0 P.R.C. No. 111 of 1978 before the Rent Control Court, Kozhikode against the tenant Kalyani for her eviction under sub-sections (2), (3), and 4 (ii), (iii) and (v) of S.11 of the Kerala Buildings (Lease and Rent Control) Act 1965. Eviction was ordered by the Rent Control Court on 3-10-1978 under sub-sections (3), (4) (iii) and (4) (v) of S.11 of the Act finding that the landlord required the building bonafide for his own occupation, that the tenant had another building in her possession in the same city reasonably sufficient for her occupation and that the tenant had ceased to occupy the building continuously fora period over six months without reasonable cause. An appeal by the tenant Kalyani was dismissed by the appellate authority on 24-3-1981 confirming the order for eviction passed by the Rent Control Court. When the landlord sought delivery of possession as per E. P. No. 92 of 1981, he was resisted by the appellant whereupon he filed an application E. A. No. 282 of 1981 under 0.21 R.97 CPC. for delivery of the building after removal of the obstruction by the appellant. The execution court dismissed the application, as in its view the order cannot be executed against the appellant who is not a party to the proceedings before the Rent Control Court. Against this the landlord decree-holder filed R. C. R. P. No. 151 of 1981 before the District Court under the proviso to S.14 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Against this the landlord decree-holder filed R. C. R. P. No. 151 of 1981 before the District Court under the proviso to S.14 of the Kerala Buildings (Lease and Rent Control) Act, 1965. When the revisions came up for hearing a contention was raised at the instance of the obstructor that the revision is not maintainable and the remedy of the decree-holder is only an appeal under the amended provisions of R.103 of Order XXI of the Code of Civil Procedure in view of the decisions of this Court in Kuruvila v. Kesavan reported in 1980 KLT. 364. The decree-holder thereupon filed I. A. No. 1963 of 1982 for permission to convert the revision into an appeal under 0.21 R.103 CPC. This application was allowed and the case was re-numbered as A. S. No. 240 of 1982. The learned District judge heard the appeal on merits and reversing the decision of the execution court ordered delivery of the building after removal of resistance by the obstructor. 2. Learned Counsel for the appellant Sri. M. C. Sen submits that the court below is wrong in permitting a revision under the proviso to S.14 of the Act to be converted into an appeal under 0.21 R.103 CPC.,and in support of the proposition relies on the decision of the Supreme Court in Vishesh Kumar v. Shanti Prasad (1980 (2) SCWR.I:AIR.1980 SC. 892). The two questions that arose in that case for decision by the Supreme Court are formulated in Para.1 of the judgment as follows: 1. Whether the High Court possesses revisional jurisdiction under S.115, Code of Civil Procedure in respect of an order of the District Court under S.115 disposing of a revision petition? 2. Whether the High Court possesses revisional jurisdiction under S.115 against an order of the District Court under S.25, Provincial Small Causes Act disposing of a revision petition?" 3. The first question arose on account of the bifurcation of revisional jurisdiction between the High Court and the District Court as per S.3 of the CPC. (U.P. Amendment Act 1978). The Supreme Court answered both these questions in the negative and held that no second revision would lie to the High Court under S.115 CPC. against an order in revision passed by the District Court. (U.P. Amendment Act 1978). The Supreme Court answered both these questions in the negative and held that no second revision would lie to the High Court under S.115 CPC. against an order in revision passed by the District Court. The prayer for remand of one of the cases dealt with by the Supreme Court to the High Court for consideration of the revision under S.115 as a petition under Art.227 of the Constitution was rejected for the reason that "a revision petition under S.115 is a separate and distinct proceeding from a petition under Art.227 of the Constitution and one cannot be identified with the other". I do not think that this decision of the Supreme Court has application to the facts of the present case. As can be seen from Para.17 of the judgment of the Supreme Court, the prayer was for a remand for consideration of a revision under S.115 as a petition under Art.227 of the Constitution. It was not a case where the High Court had allowed an application for conversion of a revision filed under the proviso to S.14 of the Buildings (Lease and Rent Control) Act into an appeal under 0.21, R.101 CPC. was ordered by the District Court following the decision of this Court in 1980 KLT 364. In the said decision, it is stated referring to S.14 of the Buildings (Lease and Rent Control) Act as follows: "It was urged that the provisions of the Act relating to execution constitute special provisions which are saved by S.4 of the Code and must prevail over the prescription of the Code relating to appeal, on which counsel for the petitioner relied. I find it unable to accept the respondents contention. For one thing the execution contemplated by S.14 is the execution of the orders against the parties thereto. It does not contemplate investigation of obstructions offered by third parties or the orders in such proceedings. Such orders are not orders "passed in execution under this Section" in the words of the proviso to S.14, although they would be orders in the course of the execution proceedings. It does not contemplate investigation of obstructions offered by third parties or the orders in such proceedings. Such orders are not orders "passed in execution under this Section" in the words of the proviso to S.14, although they would be orders in the course of the execution proceedings. They are passed under the provisions of the Code and their scope, effect and incidents must be governed by these provisions." S.14 of the Act makes provision for execution of orders passed by the Rent Control Authorities by the Munsiff having jurisdiction over the area in which the building is situated as if those orders are decrees passed by him, subject to the proviso "that an order passed in execution under this Section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decision of the said Munsiff". By virtue of the deeming provision in S.14 a Munsiff executing the order of the rent control court is executing the same as if it were a decree passed by the Munsiff himself. The provisions of 0.21 R.97 to 103 relate to proceedings in the course of execution and it cannot be said that a revision mistakenly filed under the proviso to S.14 of the Act against an order in execution cannot be converted into an appeal under R.103 of 0.21 CPC. In the decision in 1980 KLT 364 this Court after finding that the revision petitions under the proviso to S.14 of the Act are not maintainable remanded the cases to the lower court directing that court to permit conversion of the revision petitions into appeals and to dispose of the appeals in accordance with law. No serious objection appears to have been raised by the obstructor against the conversion of the revision into an appeal under 0.21 R.103 CPC. There is not even a ground in the memorandum of appeal before this Court against the order of the District Court, permitting conversion of the revision into an appeal. A ground is sought to be taken by way of a separate application CMP. 4093/1983 filed after the case was posted for hearing. There is not even a ground in the memorandum of appeal before this Court against the order of the District Court, permitting conversion of the revision into an appeal. A ground is sought to be taken by way of a separate application CMP. 4093/1983 filed after the case was posted for hearing. For the aforesaid reasons I do not see any substance in the contention of the learned Counsel for the appellant that the District Court was wrong in permitting conversion of the case filed as a revision under S.14 of the Kerala Buildings (Lease and Rent Control) Act into an appeal under 0.21 R.103, CPC. 4. It is next contended by the learned Counsel for the appellant that the scope of enquiry on a petition under 0.21 R.97 CPC. is confined to the matters referred to in sub-rule (2) of R.98, as to whether the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf or by any transferee where such transfer was made during the pendency of the suit or execution proceedings. It is only on satisfaction of any of these matters that the execution court is empowered to direct that the applicant be put in possession of the property. In the present case the obstructor was in possession of the building on the date of institution of OPRC.151 of 1978, he was not a party to the proceeding before the rent control court and he is not bound by the order for eviction passed against the tenant. He cannot therefore be considered to be as a person offering resistance or obstruction without any just cause at the instigation of or on behalf of the judgment-debtor, and hence according to the learned counsel, the order for removal of resistance and delivery of the building passed by the court below cannot be sustained in law. In Para.9 of the judgment of the court below it is stated: "'The case of the present respondent is that he is a sub-tenant under Ramunni, the husband of the tenant". Respondent referred to therein is the obstructor. Ramunni is the husband of the tenant and was staying with her in the building after the tenant got an order of allotment from the Accommodation Controller. Respondent referred to therein is the obstructor. Ramunni is the husband of the tenant and was staying with her in the building after the tenant got an order of allotment from the Accommodation Controller. Ramunni had no independent rights in the building and on the case put forward by the obstructor, it should be taken that his case is that Ramunni acted on behalf of his wife in granting the sub-lease to the obstructor. Under S.21 of the Buildings (Lease and Rent Control) Act, an order for eviction of the tenant passed under the Act shall be binding on all sub-tenants, whether they are parties to the proceedings or not provided that such orders are not obtained by fraud or collusion. However, in cases where sub-letting is allowed under the original agreement of tenancy, the sub-tenant is to be made a party to the proceedings if he had given notice of the sub-tenancy to the landlord. In the present case, the court below has found that there was no fraud or collusion in obtaining the order for eviction of the tenant. Eviction was ordered on proof of bona fide need for own occupation, by the landlord and also on the finding that the tenant had another building in her possession in the same city reasonably sufficient for her requirements and that the tenant had ceased to occupy the building continuously for a period over six months without reasonable cause. There was no agreement of tenancy as the occupation by the tenant was in pursuance to an order of allotment by the Accommodation Controller. By virtue of the provisions of S.21 of the Buildings (Lease and Rent Control) Act, the sub-tenant is also bound by the order for eviction passed against the tenant and should therefore be equated to be in the same position as a judgment-debtor, whose obstruction is liable to be removed under R.98 of 0.21 CPC. 5. Learned Counsel relies on the decision of this Court in Raghavan v. Bhagyalakshmi Amma (1972 KLT 339) in support of the proposition that if the register had been in possession of the property before the institution of the suit his resistance or obstruction cannot be ordered to be removed under 0.21 R.98 CPC. This decision does not support the proposition put forward by the learned Counsel. It was a decision prior to the commencement of the CPC. Amendment Act, 1976. This decision does not support the proposition put forward by the learned Counsel. It was a decision prior to the commencement of the CPC. Amendment Act, 1976. This Court in Para.6 of the judgment stated thus: "6. In this connection, I have to notice a contention urged by counsel for the appellant, namely that in order to maintain an obstruction under 0.21 R.97 of the Code of Civil Procedure, it is not sufficient if a party shows that he had possession independent of the judgment-debtor or that he had a right to possession independent of the judgment-debtor, but he must show absolute title to the property. I cannot certainly accept this contention. What is required to be shown in order to maintain an obstruction to delivery of property is really possession of the person so obstructing. But such proof of possession would be of no avail unless it is further established that possession was not obtained from or under the judgment-debtor, for if it be otherwise, it would naturally be subject to the result of the suit. Any transaction during the pendency of the suit would be hit by the rule of lis pendens, and therefore possession of a person obstructing based upon his coming into possession pendente lite, would of course be not sufficient. That is why what has to be shown is independent possession. If it is shown that his possession is not subject to the result of the decree in the case, he can maintain an obstruction irrespective of the nature of the right by which he holds such possession. It may be that bis possession is that of a lessee or of a mortgagee or even of a trespasser. If he is in possession the quantum or nature of the right he has is not material at all when one considers whether his obstruction should be upheld by a court." The above passage would clearly indicate that if possession of the obstructor is subject to the result of the decree in the case, his obstruction is liable to be removed under the provisions of 0.21 R.98 CPC. R.101 of 0.21, substituted by the CPC. R.101 of 0.21, substituted by the CPC. Amendment Act of 1976 requires all questions including questions relating to right, title and interest in the property arising between the parties to a proceeding on application under R.97 or R.99 and relevant to the adjudication of the application to be determined by the court dealing with the application and not by a separate suit, and under R.103 substituted by the Amendment Act, an order made under R.98 or R.100 is to have the same force and be subject to the same conditions as to appeal or otherwise as if it was a decree. There is therefore no merit is the contention of the learned Counsel that for the reason of the obstructers possession prior to the commencement of the rent control proceedings his obstruction is not liable to be removed under 0.21 R.98 CPC. 6. Learned Counsel has an alternative submission that since the lease to him was granted by Ramunni who had no right in the building, the obstructor should be deemed to be a trespasser whose possession is independent of the judgment-debtor and the obstruction or resistance by a person in independent possession cannot be removed in proceedings under 0.21 R.98 CPC. I do not find any substance in this contention. The obstructor himself has no case that he is a trespasser. His only case is that he is a subtenant of the building. As a sub-tenant he is bound by the order for eviction. That apart, the amended R.101 of 0.21, CPC. provides for the investigation of all questions including questions relating to the right, title and interest in the property arising between the parties to the proceedings and the court is empowered to pass an order allowing the application under R.97, in accordance with the determination of the questions referred to in R.101. When once it is found that the obstructor has no right to possession and he was put in possession of the property by Ramunni, on behalf of the judgment-debtor, his resistance or obstruction to the execution is liable to be removed under 0.21 R.98 CPC. 7. I have in the foregoing paragraphs referred this questions of law formulated at the stage of admission of the second appeal against the appellant. The second appeal fails and is dismissed in the circumstances without any order as to costs. 7. I have in the foregoing paragraphs referred this questions of law formulated at the stage of admission of the second appeal against the appellant. The second appeal fails and is dismissed in the circumstances without any order as to costs. Learned Counsel for the appellant prays that his client may be granted some time to vacate. That is a matter for the execution court to consider if a prayer in that behalf is made to that Court.