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2022 DIGILAW 97 (KER)

Chandran @ Chandu v. C H Meenakshi

2022-01-31

ANIL K.NARENDRAN, P.G.AJITHKUMAR

body2022
ORDER : Anil K. Narendran, J. I.A.No.1 of 2022 The petitioner filed R.C.Rev.No.359 of 2016, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the judgment dated 08.07.2016 of the Rent Control Appellate Authority (Additional District Judge), Vatakara in R.C.A.No.55 of 2015, an appeal filed under Section 18(1)(b) of the said Act against the order dated 16.02.2015 of the Rent Control Court (Munsiff), Vatakara in R.C.P.No.18 of 2014. The respondents herein-landlords, filed the said R.C.P. against the petitioner herein-tenant, under Section 11(3) of the Act, seeking eviction of the tenant from the petition schedule shop room. The bona fide need projected in the R.C.P was that of the 5th respondent herein, who was examined as PW1, to start a churidar ready-made business and stitching unit in the petition schedule shop room. 2. The Rent Control Court found that the need projected in the R.C.P for an order of eviction under Section 11(3) of the Act is bona fide; the first proviso to Section 11(3) of the Act has no application; and the tenant is not entitled to the benefit of the second proviso to Section 11(3) of the Act. Before the Rent Control Court, the tenant contended that, in view of the guidelines and norms laid down by the Apex Court in Mohammad Ahmad v. Atmaram Chauhan [ (2011) 7 SCC 755 ], if present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the tenanted premises. The Rent Control Court found that, the fair rent of the petition schedule shop room was fixed as Rs.1,000/- vide Ext.A2 order dated 30.09.2011 of the Rent Control Appellate Authority, Vatakara in R.C.A.No.17 of 2011, arising out of the order of the Rent Control Court, Vatakara in R.C.P.No.30 of 2005. Since the landlords filed R.C.P.No.18 of 2014 on 13.03.2014, within a period of 5 years from the fixation of fair rent, the tenant is entitled to enjoy immunity from being evicted from the tenanted premises for a period of 5 years from the date of fixation of fair rent under Section 5 of the Act. Since the landlords filed R.C.P.No.18 of 2014 on 13.03.2014, within a period of 5 years from the fixation of fair rent, the tenant is entitled to enjoy immunity from being evicted from the tenanted premises for a period of 5 years from the date of fixation of fair rent under Section 5 of the Act. Therefore, the Rent Control Court, by the order dated 16.02.2015, dismissed R.C.P.No.18 of 2014 holding that the landlords are not entitled for an order of eviction as sought for; however made it clear that they are entitled to file petition seeking the same relief after expiration of the period of immunity entitled to the tenant. 3. Challenging the order of the Rent Control Court, Vatakara dated 16.02.2015 in R.C.P.No.18 of 2014, the landlords filed R.C.A. No.55 of 2015 before the Rent Control Appellate Authority, Vatakara, under Section 18(1)(b) of the Act. The Appellate Authority, by the judgment dated 08.07.2016, allowed that appeal and the landlords are found entitled to an order of eviction under Section 11(3) of the Act and the tenant is directed to surrender vacant possession of the petition schedule shop room to the landlords. On the question of the immunity of the tenant from being evicted from the tenanted premises, the Appellate Authority found that, as per Ext.A2 order of the Appellate Authority in R.C.A.No.17 of 2011, the fair rent fixed in R.C.P.No.30 of 2005 shall have effect from 11.03.2005, the date of filing of that petition. R.C.P.No.18 of 2014 seeking eviction of the tenant was filed on 13.03.2014, about 9 years after the date of fixation of fair rent. On similar facts, a Division Bench of this Court in Subair and others v. C.P. Kunhami @ Kunjhimariyam and another [ (2015) 5 KHC 260 ] held that, in a case where the petition for fixation of fair rent was filed in 2002 and finally the judgment in appeal was delivered in 2012, the period of 5 years as per the guidelines laid down by the Apex Court in Mohammad Ahmad [ (2011) 7 SCC 755 ] would start from 2002, the date of fixation of fair rent, and the petition for eviction instituted in 2011 is maintainable. 4. On 24.11.2016, when R.C.Rev.No.359 of 2016 came up for admission, this Court admitted the matter on file and issued notice to the respondents-landlords. 4. On 24.11.2016, when R.C.Rev.No.359 of 2016 came up for admission, this Court admitted the matter on file and issued notice to the respondents-landlords. In I.A.No.2770 of 2016, this Court granted an interim stay of all further proceedings pursuant to the judgment dated 08.07.2016 of the Rent Control Appellate Authority, Vatakara in R.C.A.No.55 of 2015, reversing the order dated 16.02.2015 of the Rent Control Court, Vatakara in R.C.P.No.18 of 2014, for a period of two months. On 03.03.2017, this Court extended the said interim order by three months, on the tenant paying the entire arrears of rent within two weeks, with a further condition that the tenant shall continue to pay the rent without default. On 06.12.2018, this Court extended the said interim order until further orders. 5. On 19.01.2022, the petitioner-tenant filed the above interlocutory application, i.e., I.A.No.1 of 2022, seeking extension of the order of stay granted in I.A.No.2770 of 2016, in view of Annex.A1 notice dated 26.11.2021 issued by the Munsiff Court, Vatakara whereby, the tenant is directed to produce a recent stay order in E.P.No.153 of 2016 in R.C.P.No.18 of 2014, pending before that court. 6. The learned counsel for the petitioner-tenant would submit that, as evidenced by Annex.A2 receipt dated 09.12.2021, the tenant has already cleared the arrears of rent of the petition schedule shop room. The tenant has filed this interlocutory application in view of Annex.A1 notice issued by the Munsiff Court, Vatakara. 7. The learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords would point out that R.C.Rev.No.359 of 2016 is pending consideration, since the issue involved in this revision has already been referred to a Full Bench by the order of reference passed in R.C.Rev. Nos.203 and 348 of 2013, which was followed by the order of reference in R.C.Rev.No.302 of 2015. Annex.A1 notice of the Munsiff Court is one issued in view of the order of the Apex Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [ (2018) 16 SCC 299 ]. 8. Nos.203 and 348 of 2013, which was followed by the order of reference in R.C.Rev.No.302 of 2015. Annex.A1 notice of the Munsiff Court is one issued in view of the order of the Apex Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [ (2018) 16 SCC 299 ]. 8. In Asian Resurfacing of Road Agency Pvt. Ltd., a Three-Judge Bench of the Apex Court held that, order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) or Section 482 of the Criminal Procedure Code, 1973 or Article 227 of the Constitution of India, which is a constitutional provision. But the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. As observed in Girish Kumar Suneja v. Central Bureau of Investigation [ (2017) 14 SCC 809 ] in Prevention of Corruption Act cases, the intention of the legislature is expeditious conclusion of trial on day-to-day basis without any impediment through the stay of proceedings and this concern must be respected. In Kartar Singh v. State of Punjab [ (1994) 3 SCC 569 ] a Seven-Judge Bench of the Apex Court held that even constitutional power of the High Court under Article 226 which was very wide ought to be used with circumspection in accordance with judicial consideration and well-established principles. The power should be exercised sparingly in rare and extreme circumstances. 9. In Asian Resurfacing of Road Agency Pvt. Ltd., the Apex Court noticed that, the delay in a criminal trial, particularly in Prevention of Corruption Act cases, has deleterious effect on the administration of justice in which the society has a vital interest. The delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be an incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability. 10. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be an incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability. 10. In Asian Resurfacing of Road Agency Pvt. Ltd. the Apex Court held that, wherever stay is granted, a speaking order must be passed showing that the case was of exceptional nature and delay on account of stay will not prejudice the interest of speedy trial in a corruption case. Once stay is granted, proceedings should not be adjourned, and concluded within 2 to 3 months. The wisdom of the legislature and the object of final and expeditious disposal of a criminal proceeding cannot be ignored. In exercise of its power the High Court is to balance the freedom of an individual on the one hand and security of the society on the other. Only in case of patent illegality or want of jurisdiction the High Court may exercise its jurisdiction. Even if a challenge to order framing charge is entertained, decision of such a petition should not be delayed. Though no mandatory time limit can be fixed, normally it should not exceed 2 to 3 months. If stay is granted, it should not normally be unconditional or of indefinite duration. Appropriate conditions may be imposed so that the party in whose favour stay is granted is accountable if court finally finds no merit in the matter and the other side suffers loss and injustice. To give effect to the legislative policy and the mandate of Article 21 for speedy justice in criminal cases, if stay is granted, matter should be taken on day-to-day basis and concluded within 2 to 3 months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial court. The Apex Court fixed this timeline in view of the fact that such trials are expected to be concluded normally in 1 to 2 years. 11. In Asian Resurfacing of Road Agency Pvt. Ltd. the Apex Court found that situation of proceedings remaining pending for long on account of stay needs to be remedied. The Apex Court fixed this timeline in view of the fact that such trials are expected to be concluded normally in 1 to 2 years. 11. In Asian Resurfacing of Road Agency Pvt. Ltd. the Apex Court found that situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but also for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this situation, the Apex Court considered it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from 23.08.2018 unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced. 12. In Asian Resurfacing of Road Agency Pvt. Ltd. the Apex Court held that the challenge to an order framing charge should be entertained by the High Court in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed 2 to 3 months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order. Though no mandatory time limit may be fixed, the decision may not exceed 2 to 3 months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order. Mandate of speedy justice applies to Prevention of Corruption Act cases as well as other cases where at trial stage proceedings are stayed by the higher court, i.e., the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to Prevention of Corruption Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from 23.08.2018 unless extended by a speaking order on the above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of the above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced. The High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly long period at the trial stage. 13. In Fazalullah Khan v. M. Akbar Contractor (D) by LRs and others [ 2019 (3) KLT 823 : 2019 SCC OnLine SC 1513] a Two-Judge Bench of the Apex Court noticed that, in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ], the scope of the directions issued by the Three-Judge Bench while dealing with the issue of speedy trial in criminal cases were expanded to an extent to all civil and criminal cases, on account of said proceedings being held up, by directing that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from 23.08.2018 unless in an exceptional case by a speaking order such stay is extended. 14. 14. In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2020) 5 KHC 568 : 2020 SCC OnLine SC 1046], the Additional Chief Judicial Magistrate, Pune, by the order dated 04.12.2019, instead of following the decision in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ] in letter and spirit, directed the complainant to move an application before the High Court to resume the trial. While setting aside the said order of the Additional Chief Judicial Magistrate, a Three- Judge Bench of the Apex Court has made it clear that, the Magistrates all over the country will follow the decision in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ] in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per the decision of the Apex Court, within the next six months, the trial court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same. 15. In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra [ 2021 (3) KHC 25 : AIR 2021 SC 1918 ] a Three-Judge Bench of the Apex Court noticed the view expressed in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ] that stay of criminal proceedings by the High Courts should not be considered as an incentive to cause delay in the proceedings; that order granting stay or extending it must be a speaking order and stay not to operate long; that delay in a criminal trial has deleterious effect on the administration of justice in which the society has a vital interest; and that delay in trials affects the faith in Rule of Law and efficacy of the legal system. 16. 16. As noticed by the Apex Court in Fazalullah Khan [ 2019 (3) KLT 823 ], the scope of the directions issued by the Three-Judge Bench in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ], while dealing with the issue of speedy trial in criminal cases, were expanded by the Three-Judge Bench to an extent to all civil and criminal cases, on account of such proceedings being held up, by directing that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from 23.08.2018 unless in an exceptional case by a speaking order such stay is extended. 17. In view of the directions issued by the Three-Judge Bench of the Apex Court in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ], in all pending matters before the High Courts or other courts relating to Prevention of Corruption Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from 23.08.2018 unless extended by a speaking order on the above parameters. The appellate/revisional courts, both civil and criminal, under the jurisdiction of the High Courts, have to adopt the same course. The trial courts may, on expiry of the aforesaid period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced. The High Courts are required to issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly long period at the trial stage. 18. The trial courts may, on expiry of the aforesaid period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced. The High Courts are required to issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly long period at the trial stage. 18. The time limit of six months in the directions issued by the Three-Judge Bench in Asian Resurfacing of Road Agency Pvt. Ltd. [ (2018) 16 SCC 299 ] has no application, when the appellate court grants stay of execution of the decree or order of the trial court or the first appellate court, as the case may be; or when the revisional court grants stay of execution of the order of eviction granted by the Rent Control Court or the Appellate Authority, as the case may be; or when the Appellate Authority grants stay of execution of the order of eviction granted by the Rent Control Court; or when the appellate court in criminal side grants stay of the conviction or execution of the sentence by the trial court or the lower appellate court, as the case may be; or when the revisional court in criminal side grants stay of the conviction or execution of the sentence by the trial court. So long as the stay of execution of the decree or order in civil side remains in force, there can be no execution of that decree or order by the execution court. The trial court or the first appellate court cannot insist that there has to be a further order made by the High Court continuing the stay of such judgment and decree on the expiry of six months from the date on which that stay order was passed. Similarly, when the revisional court grants stay of execution of the order of eviction granted by the Rent Control Court or the Appellate Authority, as the case may be, or when the Appellate Authority grants stay of execution of the order of eviction granted by the Rent Control Court, the execution court cannot insist that there has to be a further order made by the revisional court or the Appellate Authority, as the case may be, continuing the stay of the order of eviction on the expiry of six months from the date on which that stay order was passed. 19. In such circumstances, the order of this Court dated 06.12.2018, whereby the interim order granted in I.A.No.2770 of 2016 in R.C.Rev.No.359 of 2016 was extended until further orders, will not expire after a period of six months. Since the said interim order is still in force, the Munsiff Court, Vatakara cannot require the petitioner-tenant to produce a recent stay order of this Court. For the aforesaid reason, this interlocutory application is closed. R.C. Rev.No.359 of 2016 Since the issue involved in this revision has already been referred to a Full Bench by the order of reference passed in R.C.Rev. Nos.203 and 348 of 2013, which was followed by the order of reference in R.C.Rev.No.302 of 2015, await the decision of the Full Bench. List on 04.03.2022.