Puthiya Maliyakkal Minaver, S/o. Koyassan Koya v. T. P. Ramla, W/o. Abdulla
2022-11-29
A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN
body2022
DigiLaw.ai
ORDER : A.Muhamed Mustaque, J. The simple issue that has to be considered by this Court is whether the tenant is entitled to seek restitution consequent upon setting aside the ex parte order of eviction. 2. The brief facts are as follows: The landlord obtained an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 as ex parte. The order of eviction was passed on 14.3.2016, The tenant claimed that she paid rent upto January, 2017. This fact has been denied by the landlord. Notice to the tenant was served on the premises by affixture. The tenant came to know about the ex parte order when delivery was effected on 22.2.2017. Immediately on 25.2.2017, she filed an application to set aside the order. She also filed an application to set aside the ex parte order in execution. Those applications were dismissed. However, her application to set aside the ex parte order was allowed on payment of costs on 29.03.2017. An application for restitution was filed. That application has already been allowed. In the appeals, the Appellate Authority affirmed the orders of the Rent Controller. In these three separate Rent Control Revisions, the landlord is challenging the order in an application for condonation of delay, the order allowing the application to set aside the ex parte order and also an order allowing the application for restitution. 3. Notice was served by affixture. The tenant was not aware of the proceedings before the Rent Controller. It appears that the shop rooms were closed. Notice was served in the address shown in the rent deed which was the residential building, not in the address of the tenanted premises. The landlord's case is that he was not aware of the change of address. Anyway, the court below concurrently found that there was sufficient reason to condone the delay and set aside the ex parte order. It is also noticed that the tenant paid rent even after the order of eviction was passed and the landlord acknowledged the same. In such circumstances, we find no reason to interfere with the impugned orders. 4.
Anyway, the court below concurrently found that there was sufficient reason to condone the delay and set aside the ex parte order. It is also noticed that the tenant paid rent even after the order of eviction was passed and the landlord acknowledged the same. In such circumstances, we find no reason to interfere with the impugned orders. 4. However, the learned counsel for the revision petitioner vehemently argued in the matter, contending that after the possession has been handed over to him there is a determination of the lease and therefore, the Rent Control Court has no jurisdiction to entertain an application under Section 144 of the Code of Civil Procedure for restitution. It is further argued that Section 144 of the Code of Civil Procedure is not applicable. It is also argued that the remedy of the tenant who is aggrieved by the delivery order in execution is subject those orders in a revision as contemplated under Section 14 of the Act. 5. The Rent Controller and the Appellate Authority exercised the power of the civil court and have all trappings of the civil court while exercising those powers. The Apex Court in Mukri Gopalan v.Cheppilat Puthanpurayil ( AIR 1995 SC 2272 ) and the full bench of this Court in K.K. Hamsa v. Athikottu Snehaletha [AIR 2021 Ker.17] held that the Rent Control Court is deemed to be a civil court. 6. This Court in T.V.Krishna Iyer v.Abdul Rasheed [ 2015 (1) KLT 511 ] has held that the Rent Control Court has inherent power like the civil court. The Rent Controller no longer can be treated as persona designata in the light of aforesaid judgments. There is no necessity under law that the specific power shall be conferred on a court. The inherent powers can be invoked where the alternative remedies do not exist. Those inherent powers are essentially in the nature of supplemental power to the main power exercised by the court or the Tribunal. 7. This Court in Moosa v. Jyothi [ 2000 (3) KLT 416 ] had held that the Rent Control Court has power to invoke restitution under Section 144 of the Civil Procedure Code. If the court has the power to do certain things, it also has to be presumed that it has the power to undo them.
7. This Court in Moosa v. Jyothi [ 2000 (3) KLT 416 ] had held that the Rent Control Court has power to invoke restitution under Section 144 of the Civil Procedure Code. If the court has the power to do certain things, it also has to be presumed that it has the power to undo them. If the court has the power to pass an ex parte order, it has also the power to set aside the ex parte order. In view of the above, we have no hesitation to hold that the Rent Controller has power to order restitution, even though it is not specifically conferred on it. 8. Coming back to the point raised by the learned counsel for the revision petitioner, on a determination of the lease, there is nothing remain in law to hold the status of the landlord and the tenant, we are of the view that the determination of the lease happened through the process of the law and by exercising the power of the court. If that court exercised the power to determine the lease, the same court can reverse that decision through a process of law. Once that decision is taken by the court by ordering restitution, it is only a matter of consequence to order redelivery by the execution court. The order is now passed by the Rent Controller. That can be put into motion by the execution court to order redelivery. We are, in such circumstances, of the view that the orders passed by both courts are perfectly legal and warrant no interference. The Rent Controller ordered costs of Rs.5,000/- (Rupees five thousand only). We note that the landlord was able to drag the proceedings for more than five years. We, therefore, impose costs of Rs.15,000/-(Rupees fifteen thousand only) each in all these Rent Control Petitions. If the cost is not paid, that can be adjusted against any rent payable by the tenant. The costs shall be paid within one month. The Rent Control Revisions are dismissed.