KUNJUMOL C IMMANUEL Vs. SHIBU

JUDGEMENT

(1.) 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 S. 11(2)(b) and S. 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 effected 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 S. 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. 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 R.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. 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.