KURIAKOSE Vs. VARKEY

JUDGEMENT

(1.) There are two petitioners in this Original Petition. They are tenants' of the first respondent. The first petitioner, his brother and mother are tenants of Building No. XII/460 and 461 of Perumbavoor Municipality. The first petitioner is conducting hotel business in the building. The second petitioner is the tenant of Building Nos. XII/427, XIT/431 and XIII/I of Perumbavoor Municipality. He is conducting a retail ration shop. The first respondent Landlord filed R.C.P. Nos. 46 and 48 of 1980 claiming eviction on the ground that the building needs reconstruction. The petitions were allowed by the Rent Controller on 9-2-1984. The said judgments were reversed by the first Appellate Authority and upheld by the District Court, disallowing eviction. By Ext. P1 judgment in CRP. Nos. 1365/84 and.2500 of 1985 dated 5-3-1986, this Court allowed eviction. The petitioners filed SLP (Civil) Nos. 6727 and 6608 of 1986 before the Supreme Court of India. In the meanwhile, execution proceedings were initiated by way of EP. Nos. 68 and 69 of 1986, evidenced by Exts. P2 and P3. The Supreme Court dismissed the Special Leave Petitions. The orders were substantially similar in the two cases. It was held that if there is existing vacant shops which can be given to the petitioners/tenants until the building is reconstructed, such shops will be given to the petitioners at the market rate fixed by the Rent Controller. After reconstruction, the tenants/petitioners would be entitled for their rights as per the order of the High Court. The petitioners state that the first respondent is bound to provide rooms to them till the new building is constructed. But, in violation of the submissions made before the Supreme Court, the landlord is proceeding with execution without allotting rooms to the petitioners. The Rent Controller posted the matter for enquiry. By Ext. P5 order dated 2-1-1987, the Execution Court (Munsiff, Perumbavoor) ordered delivery on 15-1-1987. The revisions filed before the District Court were dismissed by a common order, Ext. P7 dated 23-1-1987. The challenge in this Original Petition is against Exts. P5 and P7 orders.

(2.) I heard counsel for the petitioners, Mr. M. M. Abdul Aziz. Counsel contended that the order passed by this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 (Ext. P1) is void. This Court was incompetent to entertain the revisions under S.115 CPC , as held recently by the Supreme Court of India in Aundal Ammal v. Sadasivan Pillai [ 1987 (1) KLT 53 ]. As a consequence, the order of eviction passed against the petitioners and the consequential orders passed in execution (Exts. P5 and P7) are also void. The decision rendered by this Court in CRP. Nos. 1365 of 1984 and 2500 of

(3.) The order of eviction was passed by this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 (Ext. P1) on 5-3-1986, at the instance of the first respondent. This was long before the Supreme Court rendered the decision in Aundal Ammal's case (1987 (1) KLT 53). In the said decision, the Supreme Court, in Para.19 to 22 of the judgment, held that in proceedings under the Kerala Buildings (Lease and Rent Control) Act, a second revision under S.115 CPC. does not lie to the High Court from a revisional order passed by the District Court. It should be remembered that the petitioners filed Special Leave Petitions before the Supreme Court as SLP (Civil) Nos. 6608 and 6727 of 1986 from the order passed by this Court in Ext. P1. For the purpose of further appeal to the Supreme Court the petitioners themselves treated Ext. P1 order (order passed by the High Court in revision) as valid and needs to be annulled. At least to that extent, the petitioners had and did accept that this Court had jurisdiction under S.115 CPC when it passed the common order in two Civil Revision Petitions. The question of jurisdiction of this Court under S.115 CPC was not raised either before this Court or before the Supreme Court of India in S.L.P. Nos. 6608 and 6727 of 1986. The question of jurisdiction of this Court to render the judgment in two Civil Revision Petitions (Ext. P1) was raised for the first time only in execution. Having failed to take up the plea of want of jurisdiction of this Court under S.115 CPC. to entertain the revision petitions, it is not open to the petitioners to urge the said plea for the first time in collateral proceedings and at this stage, in proceedings under Art.226 and 227 of the Constitution of India, for more reasons than one.