Changarambalathu Ravi vs Ayishabi and Another

J.B. Koshy, J.—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 buildings 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 sub-lease 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. C-1 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 sub-leased 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 Article 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.

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. A-1 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. A-1 is the deed executed by him with Gopalan. Exts. A-2 to A-5 are the receipts showing that he was paying rent to Sri Gopalan. Exts. A-6 to A-9 are the receipts alleged to be signed by the landlords accepting the rent from him. Exts. A-10 to A-15, which are dated 4th May 1995 to 27th June 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 readymade 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. C-1 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.

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, Section 21 of the Buildings (Lease and Rent Control) Act is also important. Section 21 says as follows:

Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-tenancy to the landlord.

Therefore, an order of eviction of a tenant is binding on all sub-tenants and a person can question the same by filing a suit only if the order is obtained by fraud or collusion. The original proceedings in R.C.P. was contested vehemently. Tenants contested the matter in appeal proceedings and in revision and finally by filing writ petition before this Court. On going through the judgment of this Court in O.P. No. 1308/90 which finally disposed of the case clearly show that decree was not obtained by fraud or collusion. In any event, no prima facie evidence of fraud or collusion was produced by the Petitioner. Therefore, the order of eviction in R.C.P. is binding. Even if the story of Ext. A-1 is correct and he has taken on sub-lease the property in question, u/s 21 of the Act the sub-tenant who has got possession from the tenants is also bound by the decision of the Rent Control Court. In any event Gopalan has no right to handover the possession to the Petitioner or execute document like Ext. A-1. During the pendency of the R.C.P. when the Commission report was filed it was found that P.K. Shanmughan (he was also a party in the R.C.P. as sub-tenant) was in possession of the shop-room in question. Therefore, it cannot be true that the Petitioner was in possession of the property during the relevant time.

Of course, Respondents had produced Exts. A-10 to A-15 to show that he was doing the business in ready made garments in the shop-room in question. All these bills are for the month of June 1995. The case of the Petitioner is that he is doing the business from 1979 onwards from the same room but no bills or other documents were produced to prove the same. No explanation was filed why it was not produced. In the Commission report dated 24th April 1983 it was reported that one T.K. Shanmugham was seen conducting plastic name board business in the plaint schedule room. There was no mention of any ready made garments business in 1983. In the circumstances, the genuineness of Exts. A-6 to A-9 also cannot be accepted. Further Respondents were fighting the R.C.P. with the tenants and it is difficult to believe that at that time they were receiving rent from the Petitioner. No evidence was produced by the Petitioner that he was in possession of the property before O.P. No. 1308/90 was disposed of by this Court on 1st November 1990 wherein this Court ordered the Respondents in R.C.P. to surrender the shop on or before 31st January 1991 and not to induct strangers into the building. The Appellate Court has considered the matter in detail and found that the Petitioner is not entitled to interim injunction as prayed for.

As per Order XXI, Rule 99 of CPC the Respondent/Petitioner if dispossessed in execution of the decree in R.C.P. No. 29/83, is at liberty to file an application to the Court. But the Respondents are entitled to execute the decree obtained in R.C.P. Prima facie, there is no bona fides and therefore, there is no ground to interfere with the order in C.M.A. 27/95. A Division Bench of this Court in P. Muthukoya v. M. Muthukoya 1988 (1) KLT 664 held that if there is no bona fides interlocutory orders need not be granted. As decided by this Court in Dr. Yogiraj v. Ravindranath 1983 KLT 499 sub-tenant is bound by order of eviction passed against the tenant. Therefore even if Ext. A-1 tenancy set up by the Petitioner is accepted, he is bound by Section 21 of the Act. He can be equated to be in the same position as original tenant, whose obstruction is liable to be removed.

Orders u/s 21 of the Kerala Buildings (Lease and Rent Control) Act, cannot be challenged in a separate suit by a stranger unless order of eviction was obtained by fraud or collusion. To allege collusion Respondents in R.C.P. 29/83 were not made parties to the suit. Legal representatives of deceased Gopalan, who alleged to have executed Ext. A-1 deed are also not parties to the suit. Fraud or collusion between the original parties in R.C.P. 29/83 is not even tried to be established in this proceedings. In B. Gangadhar Vs. B.G. Rajalingam, Apex Court held that "it is settled law that a tenant who claims title, right or interest in the property through the judgment debtor or under the colour of interest through him, he is bound by the decree and that, therefore, the tenant need not econominee be imp leaded as a party Defendant to the suit nor it be an impediment to remove obstruction put up by them to deliver possession to the decree." Since fraud or collusion pleaded by the Petitioner now is not prima facie, proved, Section 21 of the Act is applicable and he cannot stay the execution proceedings. Therefore, there is no merit in the C.R.P. It is dismissed. No order as to costs.