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2018 DIGILAW 840 (KER)

Mathew, S/O. Michael v. James Jacob, S/O. Chacko

2018-10-23

P.SOMARAJAN

body2018
ORDER : Against the order of dismissal of E.P.No.4 of 2012 in O.S.No.31 of 2002, dated 14.3.2017, of the Court of Sub Judge, Pala, the petitioner/decree holder came up with this Revision. 2. The petitioner who was the tenant occupying a shop room in the ground floor facing towards Pala-Erattupetta road, surrendered vacant possession to the landlord on executing Ext.A2 agreement, by which the landlord agreed to provide a shop room facing the said road after reconstruction. But, after the reconstruction of a multi storeyed building facing towards Pala-Erattupetta road, no room was given to the petitioner/decree holder as agreed, which has necessitated institution of a suit in O.S.No.31 of 2002 and ultimately a decree for specific performance of Ext.A2 agreement was passed. Both the parties fairly conceded that the decree has become final and conclusive. The decree was put in execution, but the execution court dismissed the same holding that the tenants who were inducted into the shop rooms cannot be evicted without resorting to the remedies provided under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Rent Control Act'). The abovesaid order is under challenge in this Revision. 3. Admittedly, all the tenants who were in occupation of twelve rooms facing towards Pala- Erattupetta road were given on lease during the pendency of the suit, subsequent to Ext.A2 agreement. The execution court dismissed the execution of the decree on the reason that since there is a non-obstante clause under Section 11 of the Act, the tenants who were inducted into possession can only be evicted in accordance with the provisions contained in the Act. So, the question came up for consideration is whether S.52 of the Transfer of Property Act has got over riding effect over the non-obstante clause in Section 11(1) of the Rent Control Act. The issue can be answered only by answering the abovesaid question. Section 11(1) of the Rent Control Act is extracted below for reference: “11. Eviction of tenants.--(1) Notwithstanding anything to the contrary contained in 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 this Act:” (emphasis supplied) 4. Section 11(1) of the Rent Control Act is extracted below for reference: “11. Eviction of tenants.--(1) Notwithstanding anything to the contrary contained in 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 this Act:” (emphasis supplied) 4. Section 11 starts with a non-obstante clause which gives an overriding effect over other laws and agreements and even decrees in the matter of eviction of tenants either in execution or otherwise. It is by virtue of the non-obstante clause in Section 11 of the Rent Control Act the matters which would otherwise govern by Sections 106 and 111 of the Transfer of Property Act brought under the Rent Control Legislation viz. the Kerala Buildings (Lease and Rent Control) Act, 1965 and the constitutional validity of the Rent Control Legislation was upheld by the Apex Court being the same a subject that comes in concurrent list of the Constitution as item No.6 in the Third Schedule in Leelabai Gajanan Pansare and Others v. Oriental Insurance Co. Ltd. and Others (2008 KHC 5010: (2008) 9 SCC 720 ) and Welfare Association,A.R.P. Maharashtra v. Ranjith P. Gohil (2003 KHC 276: (2003) 9 SCC 358 ). The wording used in Section 11(1) “notwithstanding anything contained in any other law” and the wording “in execution of decree or otherwise” gives an exhaustive nature to the non-obstante clause overriding any other law for the time being in force or any decree put in execution, but by virtue of Article 254(1) of the Constitution of India certain Central Act will prevail over the State Legislation viz. the Rent Control Act. Section 52 of the Transfer of Property Act and the principles behind it resting on the maxim “ut lite pendente nihil innovetur” imposes a prohibition on transfer or otherwise dealing with any property during the pendency of a suit, provided that the conditions laid down in the Section are satisfied. It is based on equity and good conscience and it would prevail over any provision as the principle embedded are not amenable for any dilution. A transferee pendente lite is bound by the decree just as much as he was a party to the suit and the transfer, if any, made neither be illegal nor be void ab initio but remains subservient to the right eventually determined by court in pending litigation. A transferee pendente lite is bound by the decree just as much as he was a party to the suit and the transfer, if any, made neither be illegal nor be void ab initio but remains subservient to the right eventually determined by court in pending litigation. In short, Section 52 of the Transfer of Property Act will prevail over the non-obstante clause in Section 11 of the Rent Control Act and as such the tenants who obtained leasehold right over the property during the lease are bound by the decree. The protection under the non-obstante clause in Section 11(1) of the Rent Control Act will not come into play. 5. The execution petition was rejected without any sufficient ground and hence the order of the lower court is liable to be set aside. The order dismissing the execution application is hereby set aside. The matter is remanded back to the lower court for fresh disposal in accordance with the law in force. The lower court shall dispose of the matter within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the lower court on 19.11.2018.