RAMCHANDRAN NAIR Vs. LEBBA KUNJU

JUDGEMENT

(1.) Under challenge in this writ petition under Article 227 of the Constitution initiated by the landlord, is Ext. P8 order of the District Court, Kollam setting aside Ext. P7 order passed by the Munsiff, Kollam in E.P. No. 52/2007 in RCP. No. 5/1996 directing delivery of the building scheduled to RCP. No. 5/1996 to the petitioner/landlord. It was very extensive submissions which were addressed before us be Sri Subhashchandra Bose, learned Counsel for the petitioner and Sri V. Chitambarash, learned senior counsel for the tenant/respondent. Sri Subhashchandra Bose submitted that as an executing court, the duty of that court was only to execute the order of eviction. In this context, Sri Subhashchandra Bose would place reliance on the judgment of this Court in Velavudhan v. Addl. Dist. Court,1996 2 KLT 684 . Learned Counsel submitted that an order of eviction under Section 11(2) had been finally passed by a Division Bench of this Court in CRP. No. 2611/2000. That judgment has become final. The order of eviction passed under Section 11(b) was never got vacated by invoking the powers of the rent control court under Section 11(2)(c)The tenant respondent did file an application under Section 11(2)(c) as I.A. No. 2900/2005. That IA. Was dismissed by Ext. P6 order on 14-07-2006. The correctness of Ext. P6 order was never challenged by the respondent/tenant in revision before this court. Instead, the respondent sought a belated review of the said order on 16-06-2007. The review application was IA No. 2697/2007. Sri Subhashchandra Bose submitted that the above IA seeking review was filed by the respondent only after the execution court had ordered delivery. The review petition was also subsequently dismissed by the rent control court by order dated 23-6-2007.Even that order has been allowed to become final by the tenant by not challenging that order before any forum. Referring to the order of the rent control appellate authority interfering with the order of delivery passed by the Munsiff Court, Sri Subhashchandra Bose would submit that the said order is the result of a wrong impression in the mind of the court that IA. No. 2900/2007 filed by the tenant under Section 11(2)(c) had not been disposed of and the same was pending. In view of the irrefutable position that IA. No. 2990/07 was dismissed and even the petition for review filed by the tenant has been finally dismissed, the order of remand passed by the District Court cannot be sustained in law.

(2.) Sri V. Chitambarash, learned senior counsel drew our attention to Section 11(2)(c). He would submit that the statutory obligation of the tenant who suffered order of eviction under Section 11(2)(b) is only to deposit the arrears of rent which is due from him to the land lord as on the date of the statutory intimation notice under Section 11(2)(b) within one month or such longer period as the court may specify in its order. Once that is done it is the obligatory duty of the court to vacate the eviction order. Drawing our attention to Ext. P1 order in CRP. No. 2611 of 2000 Mr. Chitambaresh submitted that the finding therein was that the arrears of rent due from the tenant was Rs. 5398.20 and that the order of eviction passed under Section 11(2)(b) will stand automatically vacated once the tenant deposits that amount. According to the learned senior counsel, as against the arrears quantified at Rs. 5398.20 the tenant deposited on 27-7-2005, a total amount of Rs. 9000/- which was more than sufficient to cover the arrears found. The deposit having been made within the statutory minimum period of 30 days the eviction order stood vacated automatically. However, I.A. No. 2900/05 a formal application under Section 11(2)(c) though unnecessary, was also filed by the tenant for getting the eviction order formally vacated under Section 11(2)(c). In the affidavit in support of that I.A. even minute details regarding the arrears due had been disclosed with reference to Ext. P1 judgment of this Court. Nevertheless, the Rent Control Court dismissed the I.A. stating that the tenant did not file a statement as was directed and also that the I.A. is sheer abuse of legal process. Pointing out the error which was apparent on the order of the learned Rent Control Court, the tenant filed a review petition I.A. No. 2697/07. The same was also dismissed by the Rent Control Court observing that the order sought to be reviewed was one passed on merits, that no case is made out for review and also that the application for review is time barred. Sri Chitambaresh would place strong reliance on the judgment of this Court in Dasan v. S.M. Syed Aboobacker Sahib 1977 KLN Short Note Case No. 257 in support of his argument that it is not necessary to file a separate application under Section 11(2)(c) for getting the eviction order vacated. The learned senior counsel would place reliance also on another judgment of this Court in Francis v. Jacob,1983 KLT 669 in support of the same argument. Counsel relied on the judgment of the Supreme Court in Chinnamma v. Gopalan,1995 2 KLT 755 to argue that Section 12 of the Act has no application in the present-case where final order under Section 11(2)(b) is passed; that the arrears of rent to be deposited is only the arrears demanded in the notice and statutory interest and cost and also to argue that once such a deposit is made the court is bound to vacate the order passed under Section 11(2)(b).

(3.) In replay, Mr. Subashchandra Bose would reiterate his submission earlier relying on the judgment of this Court Velayudhan v. Addl. Dist. Court,1996 2 KLT 684. The learned Counsel submitted that when an order of eviction passed under Section 11(2)(b) is put in execution the executing court is not competent to receive evidence and embark upon an enquiry as to whether the arrears of rent, interest and cost have been paid or not. The concern of the execution court need only be whether the order put in execution subsists. The question whether the arrears of rent is deposited and whether the order under Section 11(2)(b)is vacated is a question to be considered by the Rent Control Court when an application is moved under Section 11(2)(c) Mr. Subashchandra Bose submitted that unless the Rent Control Court is informed about the deposit and moved by an application under Section 11(2)(c), there is no possibility of that court coming to know about the deposit and hence on consideration of expediency and convenience it is absolutely necessary that the tenant depositing the arrears moves the Rent Control Court by an application. Counsel submitted that the tenant in this case did file and move an application, but the application was dismissed and the further application filed for review of that order was also dismissed. The only question which arises is whether the tenant can be permitted to ignore the orders finally passed against him in I.A. No. 2900/05. The counsel argued that the order under challenge in this writ petition filed in the supervisory jurisdiction of this Court under Article 227 is Ext. P8 order of remand passed by the District Judge. That order was passed under an erroneous impression that I.A. 2900/05 was yet to be finally considered by the court. Now that it is seen that I.A. 2900/05 had been dismissed, P8 order cannot be sustained at all.