CHANGARAMBALATHU RAVI Vs. AYISHABI

JUDGEMENT

(1.) Petitioner herein is the plaintiff in O. S. 564/95 on the file of the Munsiff's Court, Kozhikode. Petitioner filed the above suit against the respondents herein to declare that the decree obtained by them in R. C. P. No. 29/83 is not binding on him and for a permanent injunction restraining the respondents and their men from evicting the petitioner from the plaint schedule shop room other than by due process of law. There is no dispute that the building is belonging to respondents herein. They initiated proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965 for recovery of the building on the ground of arrears of rent sublease and on the ground that the tenant has used the building in such a manner as to destroy its value and utility. At the instance of the landlords/respondents a Commission was taken out and Ext. C1 Commission report was filed to show that Sri Shanmugham was in occupation. The tenant took up the matter in appeal as well as the revision finally. They filed O. P. No. 1308/90. This Court found that "I have no hesitation in coming to the conclusion that the authorities below have rightly come to the conclusion that the original tenant subleased the premises to third respondent without the consent of the landlord. This concurrent finding arrived at by the authorities below, based on legal and cogent evidence is not to be interfered with by this Court in exercise of the powers under Art.227 of the Constitution". However, three months time for surrendering the building to the respondents 1 and 2 was allowed on condition that they should file an affidavit to that effect and they should not induct strangers into the building in the meanwhile. They did not file any affidavit to that effect.

(2.) When the execution petition was filed for implementing the orders of the Rent Control Court E. A. No. 45/95 was filed by the petitioner in the execution court. On the dismissal of the same, they filed O. S. No. 564/95. The petitioner also admitted that originally the building was given on lease to one Sri. Gopalan (who was a party in the R. C. P.). According to the petitioner, in the year 1979, the above said Gopalan handed over the room to the petitioner as per Ext. A1 deed after receiving a security of Rs. 10,000/-. It is the case of the petitioner that thereafter he was paying rent to Sri. Gopalan at the rate of Rs. 35/- per month. After the death of Gopalan, according to the petitioner, he was paying rent regularly to the respondents herein. Ext. A1 is the deed executed by him with Gopalan. Exts. A2 to A5 are the receipts showing that he was paying rent to Sri Gopalan. Exts. A6 to A9 are the receipts alleged to be signed by the landlords accepting the rent from him. Exts. A10 to A15, which are dated 4-5-1995 to 27-6-1995, are orders issued from various parties to the petitioner. Along with the suit a Commission application was made and the Commissioner also reported that ready made garment business is being conducted in the room. Therefore, it is contended that he is in possession of the room. The earlier R. C. P. filed and decreed, is not binding on him as he is not a party to the proceedings. In any event he is in possession of the room as evidenced on Ext. C1 commission report and therefore balance of convenience is in his favour and pending disposal of the suit he should not be evicted as per the orders in R. C. P.

(3.) It is true that the petitioner can file a separate suit, if there is fraud or collusion as in the R. C. P. he was not a party. In this aspect, S.21 of the Buildings (Lease & Rent Control) Act, is also important. S.21 says as follows: