JOHN DECRUZ Vs. RICHARD

JUDGEMENT

(1.) The writ petitioner was the respondent in RCP 345/1999 whose application in the execution proceedings to recall the warrant of delivery on the basis that he obtained purchase certificate of the premises in the meantime, was turned down concurrently by the courts below. The issuance of a writ of certiorari to quash the above orders is the relief sought for. During the pendency of the post adjudication proceedings in the Rent Control Court, the tenant/writ petitioner had independently initiated proceedings before the Land Tribunal and obtained purchase certificate contending that he is a hutment dweller (kudikidappukaran). The validity and legitimacy of the above detached and independent proceedings before the Land Tribunal after squarely the issue of the right to eject him from the premises was held against him in the Rent Control proceedings is the point put forward for consideration of this Court right now. Aside front the above question, the reliance placed by the writ petitioner on the decision of Division Bench of this Court in Abdulrahiman v. Abdulla Haji (1991 (1) KLT 702) that overruled Kamalakshi Amma v. Vijayan (1988 (2) KLT 498) and Kumaran Nair v. Damodaran Nair (1986 KLT 461) calls for the examination of the binding nature of the dicta in Abdulrahiman's case (op.cit) in the light of the state of affairs of the Supreme Court upholding and affirming the ratio of Kamalakshi Amma's case (op.cit) later in appeal in P.K. Vijayan v. Kamalakshi Amma . (Incidentally, the Land Tribunal also relied on the decision in Abdulrahiman's case (supra) to avoid and bypass the orders of the Rent Control Court, Rent Control Appellate Authority and that of the High Court in revision).

(2.) RCP 345/99 was filed seeking eviction under Sections 11(4)(ii), 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act also alleging that the rent is in arrears since June 1997. It was contended that the respondent has ceased to occupy the petition schedule building continuously for the last more than two years and that he caused damage to the building on account of neglect, carelessness and non occupation. That he is residing in a separate house and another house that he is having has been let out are facts alleged in support. On the other hand, the respondent (the writ petitioner herein) denied rental arrears and the cause for the deterioration of the state of the building was attributed to the landlord as he failed to effect timely repairs. He contended that he was compelled to shift his residence on account of the above attitude of the landlord and claimed that he is still in possession. The matter was stiffly contested and the Rent Control Court allowed the application under Section 11(4)(ii) and 11(4)(v) of the Act. The appeal filed was dismissed at the threshold itself, at the time of admission. In revision, the High Court confirmed the finding under Section 11(4)(v). The revision petitioner had raised the contention before the revisional court that his right to purchase kudikidappu right is under adjudication by the Land Tribunal and the Revenue-Inspector who inspected the premises has recommended in his favour. This Court in revision did not entertain the above contention observing that the question of kudikidappu was never raised by the revision petitioner before the Rent Control Court or before the Rent Control Appellate Authority. It is thereafter that the landlord filed E.P.323/2001 for execution of the eviction order and the revision petitioner filed E.A.385/2004 in order to stall the execution proceedings armed with the purchase certificate obtained as per the order of the Land Tribunal pronounced subsequent to the order of the High Court in the rent control proceedings in revision. The Execution Court turned down the application. In revision on the above order, the District Court also declined to interfere.

(3.) It is the contention of the writ petitioner that the Land Tribunal, Kuthuparamba has allowed O.A. No. 8/2001 filed by him as per order dated 4-2-2004 upholding his case that he is a kudikidappukaran and that the building in the premises is a hut as defined in the Kerala Land Reforms Act and allowed the purchase of kudikidappu under Section 80(B). The purchase certificate was also issued with respect to the tenanted premises. The matter was contested in the Land Tribunal. The writ petitioner has placed reliance on the decision of the Division Bench of this Court in Abdulrahiman v. Abdulla Haji (1991 (1) KIT 702). It is stressed by the counsel for the respondent/ landlord, Mr. Ramkumar Nambiar that the tenant having not opted to raise a plea of kudikidappu in the rent control proceedings is barred by the principle of constructive res judicata and also by the principle of waiver to take up such a contention to circumvent the rent control proceedings and move the Land Tribunal; and the Land Tribunal has gone terribly astray in considering the matter after being fully aware of the finality of the proceedings in revision before the High Court. The issuance of purchase certificate vide, the order of the Land Tribunal, it is pointed put, is nothing but an abuse of the process of court and such practice has been roundly indicted by the Supreme Court in P.K. Vijayan v. Kamalakshi Amma , affirming the stand taken by this Court, in Kamalakshi Amma v. Vijayan (1988 (2) KLT 498). The decision reported in Abdulrahiman's case, (op.cit) has been upset by the decision in P.K. Vijayan's case (supra) is the contention.