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2010 DIGILAW 938 (KER)

Kunjumol C. Immanuel v. Shibu

2010-12-01

S.S.SATHEESACHANDRAN

body2010
Judgment : A Claim petitioner, who resisted the orders of eviction passed in a rent control proceedings, is the appellant herein. Her claim was turned down by the two courts below, the execution court and also the lower appellate court. Order of eviction was passed against the tenant, who was none other than the son of the claim petitioner, on grounds under Section 11(2)(b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the “BRC’ Act. That was an ex parte order. Admittedly, the tenant proceeded against, at the time of the prosecution of the rent control petition, and even now, is employed in a gulf country. Service of notice was affected at the leased premises and also by publication in a national daily having circulation in the gulf countries. When the order was put in execution by the landlord/respondent, filing an execution petition, a claim petition was filed by the appellant herein contending that she is having possession over the leased premises and that she is operating a commercial fund in such premises. After the claim being enquired into, the execution court finding no merit in the claim set up to resist the eviction, dismissed that petition. Claim petitioner preferred an appeal challenging the dismissal of her petition before the lower appellate court. That appeal was initially dismissed as not maintainable by that court holding that from an order passed under Section 14 of the BRC Act, a revision before the next superior forum from the court which passed that order alone will lie. The dismissal of that appeal was challenged before this Court by the claim petitioner and reversing that order, this Court directed the lower appellate court to decide the appeal on its merits. Pursuant to such remand, after re-appreciating the materials tendered in the case, the lower appellate court, concurring with the findings entered by the execution court, confirmed the order dismissing the claim petition. Feeling aggrieved, the claim petitioner has preferred this appeal. 2. I heard the counsel on both sides. The learned counsel for the appellant/claim petitioner relying on Babu Raj v. Vasanthi Devi (2008 (4) KLT 761) contended that both the courts below failed to examine the merit of the claim canvassed by the claimant de-hors the order of eviction passed in the rent control petition. 2. I heard the counsel on both sides. The learned counsel for the appellant/claim petitioner relying on Babu Raj v. Vasanthi Devi (2008 (4) KLT 761) contended that both the courts below failed to examine the merit of the claim canvassed by the claimant de-hors the order of eviction passed in the rent control petition. Inviting my attention to the order passed by the execution court and also the judgment of the lower appellate court, it is urged by the counsel that even the question whether there was any tenancy arrangement as between the landlord and the tenant against whom the order of eviction was passed in the rent control proceedings was not gone into by the court overlooking the mandate under Rule 101 of Order XXI of the Code of Civil Procedure directing for adjudication of right, title and interest of both parties when a claim resisting the decree or order is prosecuted before the court. Challenging the executability of a decree or order, no counter evidence was let in by the landlord/respondent despite the plethora of evidence, both oral and documentary, tendered by the claimant to substantiate the claim that she is having independent possession over the leased premises, is also highlighted by the counsel to contend that both the courts have gone wrong in dismissing her claim. Per contra, the learned counsel appearing for the respondent/landlord relying on Ittiyachan v. Tomy (2001 (3) KLT 117) contended that to sustain a claim to resist a decree or order, it may not be sufficient for the claimant to show that he/she is having possession over the property covered by the decree, but something more as to having a right to possession over such property independent of the judgment debtor who is bound by the decree or order. It is submitted by the counsel that what is filed as a petition before the execution court was not even a claim asserting an independent right over the premises covered by the order, but, in fact an objection to the executability of the ex parte decree. There is no assertion nor even any statement that the appellant/claimant has got any independent right of possession over the leased premises other than a statement that she is conducting a business therein. There is no assertion nor even any statement that the appellant/claimant has got any independent right of possession over the leased premises other than a statement that she is conducting a business therein. The materials produced in the case to resist the order as rightly found by both the courts below, do not disclose that the claimant has any right to possession of the leased premises, is the further submission of the counsel that no interference with the concurrent decision rendered by the courts below, in the given facts of the case, is called for. 3. Perusing the petition filed by the appellant/claimant before the execution court, I find considerable force in the submissions made by the learned counsel for the respondent that there is no specific pleading as to the claimant having any right or possession over the leased premises independent of the judgment debtor. She has not even pleaded under what right she claims to be in possession of that building, two rooms in a multi storied building, the leased premises covered by the order under the rent control proceedings. She had contended that she had advanced to the owner of the building substantial sum as part of sale price of the property, from 1960 onwards, and there was no demand for any rent from her and she had also not paid any rent for occupation of the building. She is operating a commercial concern, namely ”M/s. Commercial Fund” in the two rooms even before 1990, was her further case stating that her son had left for employment to a gulf country in 1990 and the respondent had fraudulently obtained an ex parte order of eviction showing him as a tenant stating his address at the leased premises. The materials tendered by the claimant to substantiate her claim, it is seen, relate to the business concern referred to in her petition. Though her claim petition is silent as to what exactly is the character of that commercial fund, whether it is a proprietary concern or a firm, she has produced some materials to show that it was a firm and that had been dissolved in 1999, at least three years before the rent control proceedings commenced and later culminating in an order of eviction. Ext.A1 is the copy of the deed relating to the dissolution of the firm “M/s. Commercial Fund” appended with the acknowledgment issued by the Registrar of firms. Though Ext.A1 shows the date as 1.4.1999, the acknowledgment issued from the Registrar of Firms demonstrate that it was produced before that authority only on 23.11.2006. That itself is more than sufficient especially in the backdrop of the non-furnishing of any particulars in the claim petition that the ‘Commercial Funds’ is a firm, to conclude that there is no merit in the claim raised by the petitioner over the leased premises as if she is having an independent right over the same, whatever that right be, which, as already indicated, has not been stated in her petition. I do not find much merit in the submissions made by the counsel that Baburaj’s case (cited supra) lays down a proposition that when a claim petition is filed to resist decree or order it demand an enquiry de-hors the decree or order passed proceeded in execution in all cases. When a decree or order is challenged by a stranger setting up an independent right otherwise than under the judgment debtor bound by such decree or order, his position is that of a plaintiff asserting his right over the property covered by the decree or order. He cannot ask the decree holder to disprove his claim by leading independent evidence once again to sustain the decree which had been passed in his favour against the judgment debtor. Of course, where the claimant produces materials to sustain his claim that he has got an independent right to possession over the property covered by the decree or order, it is incumbent upon the decree holder to lead evidence, whatsoever is necessary, to sustain the decree passed in his favour but, against the judgment debtor in the case. Of course, where the claimant produces materials to sustain his claim that he has got an independent right to possession over the property covered by the decree or order, it is incumbent upon the decree holder to lead evidence, whatsoever is necessary, to sustain the decree passed in his favour but, against the judgment debtor in the case. Rule 101 of Order XXI of the CPC spells out that in a proceeding emerging from a claim by a third party or for removal of an obstruction to the execution of the decree, at the instance of a decree holder, an adjudication as to the right, interest and title of the parties involved in such proceedings, which, no doubt, require the presence of decree holder, the claimant or obstructer and judgment debtor, is called upon, and that has to be decided on the materials placed by all the parties to such proceedings. In such proceedings, it cannot be stated that the decree already passed in favour of the decree holder has no value or significance. Atleast it has the value that a civil court has recognized the right of the decree holder as against the judgment debtor, who is bound by that decree. That decree may not be binding on a third party who sets up an independent right over the property involved. No separate suit will lie to impeach the correctness of a decree and the party aggrieved, even if he is a stranger, has to approach the execution court and show his title, right and interest over the property and the decree is not binding on him. When that be so, it may not be proper and correct to say that on presentation of a claim resisting a decree, a third party can contend that the entire burden is on the decree holder to establish his right over the property covered by the decree, and further, prove that such decree is binding on such claimant as well. I do not find any infirmity, leave alone, any illegality or irregularity in the concurrent decision rendered by both the courts below that the appellant /claimant has not shown any independent right to the property in the leased premises covered by the order which is being executed. 4. At this stage, the learned counsel for the appellant requested for six months’ time to surrender vacant possession of the leased premises. 4. At this stage, the learned counsel for the appellant requested for six months’ time to surrender vacant possession of the leased premises. Since the appellant/claimant is not a party to the rent control proceedings and her claim over the properties is not conceded to by the respondent/landlord, it may be inappropriate for this Court to grant the time requested for to the claimant. However, it is made clear that, in case, the appellant/claimant files an undertaking on behalf of her son, the tenant, proceeded against, as his power of attorney with authority recognized under law, within one month from the date of this judgment, agreeing unconditionally to surrender and handover vacant possession of the leased premises to the landlord, the execution court shall defer delivery for a period of six month from today. The learned counsel for the respondent has no objection in granting such extension of time subject to discharge of the entire arrears of rent. Since the order of eviction is under Section 11(2)(b) of the BRC Act, which would enable the landlord only an order of eviction and not discharge of arrears rent, it is not proper for this Court to impose such a condition. In default of filing of the undertaking within the time fixed, it is open to the landlord to take further steps for executing the order of eviction. The interim order granted shall continue to be in force for a period of one month, the time provided for filing the undertaking as stated above. Subject to the above directions, this appeal is dismissed.