P. Anil v. Devaki — 1990 DIGILAW 100 (KER)

ORDER K.P. Radhakrishna Menon, J. 1. The additional revision petitioners (impleaded on the death of the tenant, the revision petitioner) are the legal representatives of the tenant who was evicted from the shop building on 21-11-1978 in execution of the ex parte order in R.C.P. 103 of 1978 before the Rent Controller, Cannanore. 2. Facts relevant and requisite to decide the dispute lie in a narrow compass. The landlady, the first respondent filed R.C.P. 103 of 1978 and obtained an ex parte order of eviction on the ground of arrears of rent. This ex parte order was passed on 11-8-1978. This order had given the petitioner one months' time to deposit the arrears of rent. On his coming to know of the ex parte order, the tenant filed I. A. 2225/1978 to set aside that order. This application was allowed on condition that the tenant should deposit the arrears of rent on or before 25-9-1978. The tenant failed to comply with that order and deposit the arrears of rent within the stipulated period although he subsequently deposited the entire arrears of rent on 27-9-1978. He thereafter filed two petitions. I. A. 2473/78 for extension of time by two weeks to comply with the directions contained in the order in I. A. 2225/1978 and / I. A. 2573/78 under S.23(1)(i) of The Kerala Buildings (Lease and Rent Control) Act, for short, The Rent Control Act, to enlarge the time for deposit of arrears of rent as per the ex parte order, by three months. The Rent Controller dismissed both petitions, I. A. 2473/78 and 2573/78 and those orders were confirmed in appeal. (See the judgments in R.C.A. 135 and 136 of 1978; R.C.A. 135 against the order in I. A. 2573/78 and R C.A. 136 against the order in I. A. 2473/78). The tenant thereupon filed two revisions before the District Court, Tellicherry as R.C.R.P. 58/80 challenging the order of the appellate court dismissing R.C.A. 136/78 against the order in T A. 2473/78 and R.C.R.P. 59/80 against the order dismissing the appeal, R.C.A. 135/78 challenging the order in I. A. 2573/78 refusing to enlarge the time. The District Court dismissed R.C.R.P 58/80 on the ground that the time fixed in the order allowing the petition to set aside the ex parte order namely I. A. 2225/78 had worked itself out. The District Court however, allowed R.C.R.P. 59/80. The District Court dismissed R.C.R.P 58/80 on the ground that the time fixed in the order allowing the petition to set aside the ex parte order namely I. A. 2225/78 had worked itself out. The District Court however, allowed R.C.R.P. 59/80. That means the prayer in I. A. 2573/78 to enlarge the time by three months for deposit of the arrears of rent while passing the ex parte order, was granted. 3. Aggrieved by the latter order, the landlady filed C.R.P. 2860/81 before this court wherein she contended that the amount deposited on 27-9-1978 was insufficient and that the order enlarging the time originally fixed by three months, was wrong. This court dismissed the revision by order dated 4th day of July, 1985. Relevant portion therefrom is extracted hereunder: - "............The revisional authority acted correctly in dealing with and disposing of I. A. 2573/1978 for enabling him to deposit any further amount in the event of deficiency being noted. It is, however, to be noted that the order of 6-9-1978 only directed the deposit of "rent arrears". Whether under the Act any further amount was really due as on 27-9-1978 is not the question. The question is what exactly was the obligation as regards deposit under the order dated 6-9-1978 only the rent arrears, is the amount to be deposited under the terms of the order dated 6-9-1978. There cannot be any doubt that the sum of Rs. 7,600/- deposited on 27-9-1978 was much in excess of the rent arrears on that day". (emphasis supplied) 4. Aggrieved by the order of this court, the landlady filed S.L.P 1553/1985 before the Supreme Court which however was dismissed by the Supreme Court by order dated 4-4-1988. The order of this court in the revision thus has become final. 5. The order of this court in the revision confirming the order of the District Court in R.C.R.P. 59/80, must be held to be the executable order, in view of the Division Bench ruling of this court in Chandrika Amma v. Mohammed ( 1984 KLT 677 ). The order of this court in the revision thus has become final. 5. The order of this court in the revision confirming the order of the District Court in R.C.R.P. 59/80, must be held to be the executable order, in view of the Division Bench ruling of this court in Chandrika Amma v. Mohammed ( 1984 KLT 677 ). The Division Bench overruling the decision in Rukkiya v. Abubacker Koya ( 1984 KLT 364 ) observed thus: - "Revisional jurisdiction is part and pared of the appellate jurisdiction of the High Court Therefore, there cannot be any distinction between an order of dismissal of an appeal under R.11 of O.41 CPC and an order of dismissal in limine of a civil revision petition under S.115 CPC. In this case the orders of the subordinate courts have merged in the order of dismissal of the Civil Revision in limine and accordingly, the tenant is entitled to the benefit under S.11(2)(c) of the Act". See also the decisions of this court in Kanakamma v. Sivasankaran Nair, 1976 KLT 911 . The period of one month contemplated under S.11(2)(e) therefore required to be computed from the date of the disposal of the revision filed before the High Court under S.115 CPC The landlady in the meantime ie. immediately after the dismissal of the petitions by the Rent Controller, to be exact, on 21-11-1978, the day next to the day on which the petitions were dismissed, but before the time to file the appeals under S.18 was over, took delivery of the building in execution of the ex parte order. 6. Going by the above rulings, the tenant can deposit the arrears of rent with interest and cost of proceedings within one month from 4th July 1985, the date on which this court disposed of C.R.P. 2860/81 and on such deposit being made the Rent Control Court is bound to vacate the order of eviction. 7. It is in this, backdrop the question whether the tenant is entitled to get redelivery of the building, requires to be considered. 8. The answer to the question depends upon the construction, of S.11(1), (2)(c), 23(1)(i) and 14 of The Rent Control Act. S.11 provides that notwithstanding anything to the Contrary contained in any other law or contract, a tenant can be evicted only in accordance with the provisions of The Act. 8. The answer to the question depends upon the construction, of S.11(1), (2)(c), 23(1)(i) and 14 of The Rent Control Act. S.11 provides that notwithstanding anything to the Contrary contained in any other law or contract, a tenant can be evicted only in accordance with the provisions of The Act. S.11(2)(c) provides that the order of eviction shall not be executed before the expiry of one month from the date of such order or such further period as the rent control court may in its discretion allow to deposit the arrears of rent. It is relevant in this connection to focus our attention on the provisions contained in S.23(1)(i). This section empowers the Rent Control Court and the Appellate Authority to enlarge the time for payment of arrears of rent originally fixed or granted. If the time for payment of arrears of rent originally fixed is enlarged under S.23, then the order of eviction can be executed only after the expiry of the said enlarged time. S.14 says so. The cumulative effect of these provisions therefore is that an order of the Munsiff under S.14 directing delivery of the building before the expiry of the time allowed in the order of eviction will be void. New let us see what is the position here We have already seen that the order that could be executed under S.14 was the exparte order of The Rent Control Court as modified by the order of this court in C. R. P. 2860/81 affirming the order of the District Court in R. C. R. P. 59/80 enlarging the time originally fixed by the Rent Control Court by three months under S.23. But the landlady took delivery of the building on 21-11-1978 in execution of the ex parte order ie. immediately after the Rent Controller's order dismissing the petition to enlarge the time for payment of the arrears of rent etc. In view of S.11(2)(c), the order could have validly been executed only after the expiry of 30 days from the date on which this court disposed of the revision. The order of the executing court directing delivery of the building under the circumstances must be held to be without jurisdiction as the time for payment of the arrears of rent envisaged under S.11(2)(c) had not been over. The order of the executing court directing delivery of the building under the circumstances must be held to be without jurisdiction as the time for payment of the arrears of rent envisaged under S.11(2)(c) had not been over. It is relevant in this context to keep in view the well established principle that when a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void. (See Black's Dictionary Revised 4th edition page 496). The order of the executing court directing delivery of the property in otherwords, in a nullity and hence nonest. The invalidity of such an order can be set up whenever it is acted upon as a foundation of a right even in collateral proceedings, (See the decisions of the Supreme Court in Sushil Kumar Mehta v. Govind Ram Bohra ( 1990 (1) SCC 193 ). 9. The tenant under these circumstances can move a petition under S.151 read with S.47 C. P C for redelivery of the building if not under S.144 CPC. A reference in this context to the ruling of the Madras High Court (this ruling has been noted with approval by the Supreme Court in the decision in Patankar v. C. G. Sastry ( AIR 1961 SC 272 ) in Muhammed Sikri Sahib v. Madhwa Kurup AIR 1949 Mad. 809, is profitable. The Madras High Court held that where the executing court was not aware of the amendment of The Rent Restriction Act by which the execution of a decree was prohibited and passed an ejectment decree against a tenant, the executing court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree, could be set aside under S.151 of the CPC. The Supreme Court accordingly observed that "The prohibition is equally puissant in the present case and S.47 read with S.151 would be equally effective to sustain the order of redelivery made in favour of the respondent". 10. The Supreme Court accordingly observed that "The prohibition is equally puissant in the present case and S.47 read with S.151 would be equally effective to sustain the order of redelivery made in favour of the respondent". 10. The above position notwithstanding the learned counsel for the respondents raised the following contentions with a view to have the order under challenge sustained, (a) The order dismissing I. A. 1977 of 1981, a petition filed under S.11(2)(c) would operate as res judicata disentitling the tenant to content that the ex parte order under the circumstances, was incapable of execution; (b) without getting the ex parte order of eviction vacated by initiating proceedings under S.11(2)(c) the tenant cannot ask for redelivery of the building, (c) to get such an order set aside the tenant is bound to deposit not only the arrears of rent claimed in the petition but also the rent that has become due for the period from the date of the order of eviction till the date of deposit, interest thereon and cost also. 11. Regarding contention (a): Facts essential to consider this point can be stated thus: In execution of the ex parte order, the landlady took delivery of the building on 21-11-1978 (see the order in E. P. 421/78). The order in C.R.P. 2860/81 confirming the order of the District Court enlarging the time for payment of arrears of rent fixed in the ex parte order by three months, was delivered only on 4th day of July, 1985. The petition under S.11(2)(c) was filed in 1981. At that time the order of eviction was not in existence. That means the Rent Control Court could not have passed any order under S.11(2)(c). If that be the position the order dismissing I. A. 1977 of 1981 will be of no consequence. The said order will be only a dead letter. The question whether this order would operate as res judicata disentitling the tenant to move another petition under S.11(2)(c), therefore would not arise at all. Whatever that be this point in my view does not in any event, arise at this stage. Coming to point (b): The tenant cannot take advantage of the benefit of S.11(2)(c) unless he is in possession of the building. Whatever that be this point in my view does not in any event, arise at this stage. Coming to point (b): The tenant cannot take advantage of the benefit of S.11(2)(c) unless he is in possession of the building. Despite the order in C.R.P. 2860/81 the tenant could not move the Rent Control Court under S.11(2)(c) to vacate the order of eviction as he was not in possession of the building at that time. S.11(2)(c) prohibits the execution of the order of eviction before the expiry of one month from the date of the said order or such further period the Rent Controller may in its discretion allow. The principle enunciated by this court while construing this Section (See Rukkia's case as also Kanakkamma's case) stands in the way of the eviction order being executed before 4th August 1985, the date on which the one month period from the date of the order in C. R. P, 2860/81 expires. To enable the tenant to move the Rent Control Court under S.11(2)(c), it has become necessary to restore possession of the building to the tenant. There is therefore no substance in this contention. Point No. 3: Coming to this point: The answer again depends on the construction of S.11(2)(c). It reads: - "The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order". In order to get the order of eviction vacated the tenant is bound to deposit the arrears of rent with interest and cost of proceedings within one month from the date of the order or within such further period as the Rent Control Court may in it's discretion allow, as the case may be. This condition is a condition precedent. There is no dispute regarding this. This condition is a condition precedent. There is no dispute regarding this. But according to the counsel for the respondents the tenant shall deposit not only the rent, the details of which he had given in the notice made mention of in the proviso to clause (b) of sub-s.2 of S.11, with interest etc., but the rent which has fallen due subsequently with interest also, if he wants to avail of the benefit highlighted in S.11(2)(c). I am not impressed by this argument. The Section speaks of only 'the arrears of rent' which cannot be anything other than the arrears of rent made mention of in the notice. The definite article 'The' used in the Section makes this further clear. That means the said expression cannot be extended to rent which has fallen due after the service of the notice. It has been so held by the Supreme Court in Prakash Mehra v. K. L. Malhotra ( AIR 1986 SC 1652 ) while construing S.14(a)(a), 2 of The Delhi Rent Control Act, 1958 which is similar to S.11(2)(b) & (c) of our Act. The Supreme Court has stated the law thus: - "......The arrears of rent envisaged by S.14(1)(a) of the Act are the arrears demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand". In the case on hand this court has found that by depositing Rs. 7, 600/- the tenant has paid the arrears of rent due as per the notice of demand, interest thereon and cost of the proceeding as envisaged under S.11(2)(c) If that be so, the Rent Controller on his coming to know of this fact, is bound to vacate the order of eviction. The above contention of the respondents also accordingly is rejected. 12. Yet another contention raised by the counsel for the respondents is that since respondents 2 and 3 are bona fide tenants inducted into possession after the delivery of the property, the relief sought for in the petition for redelivery cannot be granted. In other words the bona fide tenants are entitled to retain their possession even assuming that the order of eviction was reversed in appeal or otherwise. In other words the bona fide tenants are entitled to retain their possession even assuming that the order of eviction was reversed in appeal or otherwise. In support of this argument the counsel relied on a decision of the Delhi High Court reported in Shamlal v. Jaswant Kaur (AIR 1980 Delhi 171) Considering this argument the court below has made the following observation: - "In the said case the new tenant admittedly did not know about the earlier eviction. But here it is not shown that respondents 2 and 3 have no knowledge of the earlier proceedings." In fact one of the tenants newly inducted, admittedly is a relation of the landlady. In the circumstances the above finding it should be held, is beyond challenge. The above argument therefore is rejected. In the light of what is stated above the order under challenge is set aside and the petition for redelivery of the building is allowed. The court below is accordingly directed to pass appropriate consequential order directing redelivery of the building in dispute to the petitioner. This order however will come into force only after three months from today. C. R. P. is allowed.