Research › Search › Judgment

Kerala High Court · body

2014 DIGILAW 472 (KER)

M. Fathimath Naseera v. T. M. Aboobacker Haji

2014-06-24

A.MUHAMED MUSTAQUE, K.T.SANKARAN

body2014
Judgment : K.T. Sankaran, J. 1. Since the questions involved in these Original Petitions are common and since the parties are related to each other (petitioner in O.P.(R.C.) No.74 of 2014 being the wife of the petitioner in O.P.(R.C.) Nos.75 and 76 of 2014), we dispose of these Original Petitions by a common judgment. The respondents filed three Rent Control Petitions, namely, R.C.P.Nos.5, 6 and 7 of 2013, on the file of the Rent Control Court, Kasaragod, against the respective tenants under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act. A compromise petition was filed in the Rent Control Petitions. Clause (3) of the compromise petition in R.C.P.No.6 of 2013 reads as follows : “3. The respondent admits that the rent payable from February 2012 is in arrears and he has no objection for passing an order of eviction under Section 11(2)(b) of Kerala Buildings (Lease and Rent Control) Act 2 of 1965. She prays for five months period for payment of arrears of rent as contemplated under Section 11(2)(c) of the Act and the petitioner has no objection for the same. If arrears of rent is not paid within five months the petitioner is entitled to execute the order of eviction.” Similar compromise petitions were filed in R.C.P.Nos.5 and 7 of 2013 as well. 2. Since the tenants failed to pay the arrears of rent within the stipulated time, the landlords filed Execution Petitions. Since two years had not elapsed from the date of the order of eviction, the executing court dispensed with notice to the tenants and ordered delivery of the property. When the Amin attempted to deliver the decree schedule property on 21.1.2014, the tenants obstructed delivery. 3. The tenants filed O.P.(R.C.)Nos.10, 11 and 12 of 2014, challenging the order dated 10.1.2014 passed by the executing court ordering delivery. Those Original Petitions were dismissed by this Court on 29.1.2014. 4. Thereafter, the tenants filed applications before the executing court to review the order dated 10.1.2014 passed by the executing court. The executing court dismissed the Review Petitions, which are under challenge in these Original Petitions. 5. In the affidavit accompanying the Review Petitions, the tenants contended that no executable order was passed by the Rent Control Court. 4. Thereafter, the tenants filed applications before the executing court to review the order dated 10.1.2014 passed by the executing court. The executing court dismissed the Review Petitions, which are under challenge in these Original Petitions. 5. In the affidavit accompanying the Review Petitions, the tenants contended that no executable order was passed by the Rent Control Court. They contended that there was no declaration of rights of parties and there was no direction to the tenants to handover possession of the property to the landlords. As per the decree, there is no order or direction enabling the landlords to get vacant possession of the building. It was contended that there is no valid decree in the cases, which is capable of being executed. It was submitted that the order for delivery dated 10.1.2014 is liable to be reviewed on account of error apparent on the face of the record. 6. In each of the Rent Control Petitions, the Rent Control Court passed similar orders. For the sake of convenience, the order in R.C.P.No.6 of 2013 is extracted below : “This is a petition filed under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Compromise recorded vide order on I.A. 954/2013. In the result, an order is passed in terms of the compromise as follows : 1. Petition is allowed. 2. Respondent is directed to put the landlord in the possession of the petition A schedule buildings immediately on the expiry of 5 months from the date of this order until and unless the respondent invokes Section 11(2)(c) of the Act and gets the eviction order vacated.” 7. The schedule of property was also appended to the order of the Rent Control Court. 8. Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act provides that notwithstanding anything to the contrary contained any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. Section 11 (2)(b) provides for passing an order of eviction on the ground of arrears of rent. Every order made under Section 11 of the Act can be executed by the Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him, as provided under Section 14 of the Act. Every order made under Section 11 of the Act can be executed by the Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him, as provided under Section 14 of the Act. Defences which are available in an execution proceeding to execute a decree of the civil court would be available in an execution proceeding to execute the order passed by the Rent Control Court, to the extent the circumstances warrant. The respondent in an Execution Petition is entitled to contend that the decree is inexecutable or it is a nullity. In the present case, the objections raised by the tenants are : (i) there is no declaration of the rights of parties (ii) there is no decree or order directing the tenants to handover possession to the landlords (iii) there is no order or direction enabling the landlords to get vacant possession of the building ; and (iv) there is no valid decree to be executed. 9. Rights of parties are determined by the Rent Control Court in the order passed in the Rent Control Petition. In the present case, the orders were passed by the Rent Control Court on the basis of the compromise entered into between the parties. The Rent Control Court recorded the compromise and passed orders in terms of the compromise. The Rent Control Court was not required to adjudicate the rights of parties since the parties settled their disputes and a compromise petition was filed. Therefore, the tenants are not justified in contending that the decree is inexecutable since there is no declaration of the rights of parties. The rights of parties are discernible from the terms of the compromise. Therefore, we reject the contention put forward by the tenants in that regard. 10. The contention raised by the tenants that there is no direction to handover possession to the landlords and there is no provision in the decree enabling the landlords to get vacant possession, is also unsustainable in terms of the orders passed by the Rent Control Court recording the compromise. The expression “respondent is directed to put the landlord in the possession of the petition A schedule buildings” occurring in the order would mean that a direction is issued to the tenants to surrender vacant possession of the building to the landlords. The expression “respondent is directed to put the landlord in the possession of the petition A schedule buildings” occurring in the order would mean that a direction is issued to the tenants to surrender vacant possession of the building to the landlords. That direction will also take in an order enabling the landlords to get possession of the building. 11. The contention that there is no valid decree to be executed is also liable to be rejected. At the time when the tenants approached this Court challenging the order dated 10.1.2014, they did not raise any contention that no valid decree was passed. Even now, it is not mentioned by the tenants why the decree is invalid or why it is incapable of being executed. Inexecutability of the decree cannot be inferred on a mere contention that the decree is inexecutable. The burden of proof to establish the necessary ingredients to arrive at a conclusion that the decree is inexecutable is on the person who raises that contention. A vague contention that the decree is inexecutable would not disable the executing court from executing the decree. The petitioners failed to make out any ground to review the order dated 10.1.2014. We are of the view that the contentions raised by the tenants are unsustainable. The Original Petitions lack merits and they are accordingly dismissed.