w w w . L a w y e r S e r v i c e s . i n

M/s. Fish Star Fish Exports, represented by the Managing Partner V. George Joseph & Another v/s V. Mahamood

Company & Directors' Information:- STAR INDIA PRIVATE LIMITED [Active] CIN = U72300MH1994PTC076485

Company & Directors' Information:- N V JOSEPH EXPORTS PRIVATE LIMITED [Active] CIN = U17100KL2015PTC038992

Company & Directors' Information:- S. STAR EXPORTS PRIVATE LIMITED [Active] CIN = U26990MH2016PTC273664

Company & Directors' Information:- STAR COMPANY LIMITED [Strike Off] CIN = U67120WB1927PLC005620

Company & Directors' Information:- FISH INDIA LIMITED [Strike Off] CIN = U05004PY1995PLC001065

Company & Directors' Information:- STAR T V PRIVATE LIMITED [Strike Off] CIN = U51395UP1985PTC007023

Company & Directors' Information:- STAR OF INDIA LIMITED. [Strike Off] CIN = U99999CH1946PLC001119

Company & Directors' Information:- MAHAMOOD AND MAHAMOOD PRIVATE LIMITED [Strike Off] CIN = U51909KL1996PTC010857

Company & Directors' Information:- B. K. FISH PRIVATE LIMITED [Strike Off] CIN = U05004PN2011PTC141127

Company & Directors' Information:- A. S. STAR PRIVATE LIMITED [Active] CIN = U74999RJ2016PTC056637

Company & Directors' Information:- STAR O & M PRIVATE LIMITED [Active] CIN = U74999DL2015PTC281303

Company & Directors' Information:- K. D. STAR PRIVATE LIMITED [Active] CIN = U45201GJ2011PTC067973

Company & Directors' Information:- JOSEPH GEORGE AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74900KL1946PTC000495

Company & Directors' Information:- STAR LTD. [Dissolved] CIN = U99999MH1921PTC000957

    C.R.P. No. 487 of 2016

    Decided On, 17 February 2017

    At, High Court of Kerala


    For the Petitioners: K.V. Sadananda Prabhu, A. Kevin Thomas, Advocates. For the Respondent: Johnson Manayani, Advocate.

Judgment Text

1. This revision is directed against an order passed under Section 47 of the Code of Civil Procedure in an application raising an objection as to the executability of an order of eviction passed by the Rent Controller under Section 11 (3) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Rent Control Act') based on a compromise.

2. The tenant filed an application under Section 47 mainly raising grounds regarding inexecutability of the order on account of breach of clauses in the compromise. It is therefore appropriate to refer the relevant clauses in the compromise.

'...5. The lease period is extended for a period of three years from 01.04.2013 to 31.03.2016. The existing monthly rent of Rs.70,000/- will continue for the period of three yeas as stated above. Prior to the completion of three years the respondents/tenants will vacate the building and the premises after dismantling and removing all the articles mentioned in Annexure B schedule to the petition produced to this petition. The Annexure B schedule machinery absolutely belongs to the respondents. The petitioner will not raise any right over the same. The respondents are entitled to remove the same without any hindrance or obstruction from the petitioner when the tenanted premises vacated to the petitioner. The petitioner will not make any claim over the same. The respondents declare that prior to the completion of three years the respondents will vacate the building and premises and they will not raise any objection to vacate the tenanted premises to the petitioner...'

3. The tenant alleged that he was prevented from vacating the building on 31.3.2016 on account of the action of the landlord by filing a suit for injunction and therefore, he could not perform his part of the promise to vacate the building on 31.3.2016. It is the case of the tenant that compromise of eviction is nothing but a contract having imprimatur and the seal of the court and merely because an order of eviction is passed, the terms and conditions of the compromise cannot be ignored. It is submitted that when the date of vacating the building was fixed as 31.3.2016 and the tenant could not vacate the building on the said date due to the obstruction and prevention on the part of the landlord, and further, performing the promise based on the compromise became impossible. Therefore, the contract has become voidable at the option of the tenant, who was so prevented from performing his part of the contract.

4. The question that fell for consideration under Section 47 C.P.C is regarding inexecutability of the order of eviction based on the alleged breach of terms of the compromise and no question regarding nullity has been raised. Therefore, the only question to be considered is whether the order is inexecutable or not.

5. Before proceeding further with regard to the merit of the dispute now arisen, the question of maintainability was also posed before this court. Therefore, it is appropriate to decide the question regarding maintainability as well.

6. Section 14 of the Rent Control Act refers to execution of orders of eviction passed under Section 11 of the said Act through the Munsiff's Court, having jurisdiction over the area where the building is situated. As per the said section, the order has to be executed, as it were a decree passed by the Munsiff. The civil court has no jurisdiction to pass an order of eviction in respect of a building which is coming under the Rent Control Act. The Rent Control Court alone has jurisdiction. However, the power of execution of the order is conferred upon the civil court through the Munsiff. Therefore, for all practical purposes, to execute the order, it is treated as a decree. Section 14 of the Rent Control Act only refers execution of the order. That means, the procedure of execution will have to be followed. Section 47 of the C.P.C is not part of execution. Section 47, in fact, confers power to a court executing a decree. It is independent of execution, though, it determines issues regarding executability of decree. Section 14 of the Rent Control Act confers jurisdiction to Munsiff to execute an order of eviction as if it were a decree. That means, it confers such power to the Munsiff to decide issues both related to the executability of order as well as procedure that has to be followed in execution. Such a Munsiff has to execute the decree as though it was passed by him. In that sense, Section 47 C.P.C would also apply in the matter of determining executability of the order of eviction. In execution procedure, the objection can be raised only regarding nullity of the order passed or any of such objection as contemplated in Order XXI. The executing court cannot go beyond the order passed by the Rent Controller. However, while deciding any dispute under Section 47 C.P.C, the executing court is competent to decide on all aspects regarding the executability of the order on any other ground including the ground of nullity. The executing court can decide any matter related to the inexecutability of the order under Section 47 C.P.C in an application filed therein. It is not a pre-request under law that such questions should be raised only in execution. It can be raised independent of execution petition. The maintainability of the application under Section 47 in relation to the order of the Rent Control Court though not specifically considered but is seen referred in some of the judgments of this court as well as the Apex Court (see judgment of this court in Kolappan Achari v. Haneefa [1979 KLT 674], Fathimath Naseera M. v. T.M.Aboobacker Haji [2014 (3) KLT 394] and the judgment of the apex court in Sundar Dass v. Ram Prakash [(1977) 2 SCC 662]. However, the High Court of Andhra Pradesh had considered a similar issue regarding maintainability in Amtul Quayyum Humsira v. Munawar Fathima and Another [2001 (6) ALT 193], wherein, it was held therein that Section 47 C.P.C can be made applicable even in the rent control proceedings. An order passed on a compromise decree or a decree passed on compromise is nothing but a contract having a seal of approval of the court for enforcement. In rent control petitions, the order of eviction has to be treated slightly different from the compromise decree passed by the civil court. In any compromise entered into before the Rent Controller in eviction petition, the court will have to enter satisfaction as to the existence of ground of eviction even based on admission. It is always open for the party to agree on terms and conditions by which such an order can be executed, if such conditions can be agreed upon under law. Once, such terms and conditions form part of the order of eviction, the Munsiff can examine based on the power conferred under Section 47 C.P.C as to the executability of the said order depending upon the context in which such objection is raised.

7. The present application is arising from the execution application filed by the tenant. Since proviso to Section 14 of the Rent Control Act refers that an order passed in execution is not subjected to any appeal but to revision to a court to which ordinarily an appeal would lie, this court is of the view that proviso to Section 14 would apply only in cases where an order is passed during course of proceedings in execution of the order. Since order passed under Section 47 C.P.C, in an independent application, it is not referable to any procedure under Order XXI, this court is of the view that a revision would lie under Section 115 of C.P.C as it is arising from an independent order under Section 47. If such an order happens to be passed even in execution under Section 47 during execution proceedings, this court is also of the view that, such an order has to be treated as independent of execution procedure and revision alone would lie before this court under Section 115 C.P.C. It is only such orders which were passed during the execution referable to any of the provisions under Order XXI alone a revision would lie to the first appellate court to which an appeal ordinarily lie from the order of the Munsiff. The maintainability issue is therefore, answered as above.

8. On the merits, the learned counsel for the tenant referring to Sections 53, 54 and 55 of the Indian Contract Act, 1872 argued that the order of eviction has become unenforcible. The main plank of this argument is premised on the fact that a suit for injunction was filed by the landlord and injunction was obtained restraining the tenant from removing the machineries in the building. The building in question is being used as a factory. Admittedly, there are valuable machineries installed in the building. It was so agreed in clause 5 that the landlord will not lay any claim over the machineries in the building. There are two essential conditions in this; one is an undertaking given by the tenant that he will vacate the building on 31.3.2016 and the other condition is that the landlord will not stake any claim over the machineries. Section 53 of the Indian Contract Act, 1872 provides that a contract involving promises and reciprocal promises becomes voidable at the option of the party, who was prevented from performing his promise. The promise herein, on the part of the tenant, was to vacate the building on 31.3.2016. As rightly pointed out by the learned counsel for the tenant, no one can change the date on which the building was agreed to be vacated and the parties to a compromise cannot at their own will alter the terms and conditions of the contract. In a case considered by the Hon'ble Supreme Court, reported in AIR 1961 SC 104 (Ram Nath and Another v. M/s.Ram Nath Chhittar Mal and Others) involving a compromise in a rent control petition, it was held that a tenant who failed to deliver possession on a specified date is not entitled to get back the building after reconstruction in terms of the statutory provisions of the relevant Rent Control Act. The question in this case is whether the tenant has been prevented from vacating the building on 31.3.2016. The landlord, admittedly, had filed a civil suit for injunction. There were communications between the landlord and the tenant prior to 31.3.2016 regarding vacating the building. The tenant intimated the landlord on 20.2.2016 that he made arrangement to remove the machinery after dismantling the same. It is also promised that they will vacate by 31.3.2016. The landlord appears to have filed a suit as O.S.No.82/2016 dated 29.2.2016 restraining the tenant from removing machineries alleging electricity charges due from them. It is to be noted that no suit for money was filed. The suit appears to be a misadventure based on a discarded principles under English Law of an action of assumpsit. The above suit was ultimately withdrawn as not pressed on 16.7.2016. The tenant's case is that since the suit was filed and he was prevented from vacating the building on 31.3.2016, no other date could have been fixed for vacating the building and therefore, the order of eviction cannot be executed by fixing any other date. The tenant's counsel argued that the date was consciously fixed by the parties as per the promises and reciprocal promises, and the court having not fixed any other date, the date agreed by the parties alone can be looked into for the purpose of execution.

9. However, the court has to consider whether the tenant was prevented from vacating the building. The question related to prevention of performance of promise by the tenant on 31.3.2106 would arise only if there was any prevention on the part of the landlord. The undertaking given by the tenant was to vacate the building after dismantling all the machineries in the building. The landlord did not raise any claim over the machineries. On the other hand, he wants to secure the amount alleged to have been due on the building by preventing the tenant from removing machineries through the court. Does laying a claim for loss is something to be construed as an action of prevention? If any amount is legitimately due to the landlord, nothing prevents him from claiming such amount from the machineries owned and belonged to the tenant. Certainly, any claim of the landlord for machineries would have resulted in breach of terms and conditions of the compromise. Assuming that if the tenant had committed any other loss to the landlord, is not the landlord entitled to claim for the same from the valuables or properties belonging to the tenants? Certainly, the answer would be positive. If that be so, the landlord's claim for electricity charges cannot be treated as something which had prevented the tenant from vacating the building. The tenant could have vacated the building without machineries and adjudicated such claim before proper forum where it was instituted. It is true, an imprudent landlord like here ventured upon filing an injunction suit which was later withdrawn. The validity of that exercise does not depend upon the nature of the reliefs sought for in the suit but based on the assumption that the landlord is entitled to lay any claims for the dues from the tenant. It may be true that there are no actual dues and the landlord's claim, ultimately, may not lie but that is not a factor for the court executing the decree to decide. It is for the court adjudicating such claim to decide. The nature of exercise to prevent the tenant vacating the building on the agreed day must be one in the nature of physical force on the part of the landlord compelling the tenant to remain there in the tenanted premises. In this case, nothing prevented the tenant from vacating the building on 31.3.2016. They could have very well proved before the civil court that the landlord's claim for electricity charges is untenable and the suit is not liable to be proceeded. Therefore, nothing prevented the tenant from vacating the building when an injunction order was passed. When the machineries are in the seisin of the court, the action of the court cannot be treated as an act on the part of the landlord. The court's act cannot prejudice anyone and the court's order must be construed as an act done in the form of justice. Therefore, I am of the considered view that the tenant was not prevented on 31.3.2016 from vacating the building.

10. The issue involved here has another legal angle for determination in the context of Rent Control Act. In any civil decree based on a compromise, it is open for the parties to have compromise for performance based on promises and reciprocal promises. However, compromise in eviction under the Rent Control Act is different from a compromise entered under Order XXIII of C.P.C. The Rent Control Legislation restricts unauthorised eviction otherwise than based on the ground provided under Section 11 of the Rent Control Act. Even if parties enter into a compromise, the Rent Control Court cannot grant eviction unless the court is satisfied about the ground for eviction. In a ground for eviction under Section 11(3), the landlord has to prove bona fide need for his own occupation or occupation of his dependant. However, no eviction can be granted if that tenant proves that he is depending upon the building for his livelihood and there are no building available in the locality for shifting. Then the next question that arises for consideration is, what is the legal effect of compromise in eviction petition. The simple point according to me, compromise conceding eviction has the effect of 'admission' of fact in issue. Thus, eviction under Section 11(3) is absolute and irreversible when court put seal to it. It cannot be made contingent based on any other covenant. It is in this background othe

Please Login To View The Full Judgment!

r terms and conditions in the contract have to be considered. In contract law, it is possible to have several separate contracts composed in a single contract. As already observed conceding eviction is nothing but 'admission' of the ground for eviction. The fixation of date for surrender cannot have any bearing upon the eviction granted as eviction had become absolute when court granted it. It is not a conditional order of eviction. Therefore, assuming that the tenant was prevented from vacating the building, on a date fixed for it, is of no consequence as far as eviction order granted by the court. That means, breach of any other covenants will not render eviction order granted under Section 11(3) as voidable at the option of the tenant. The ground of eviction under Section 11(3) is a statutorily conferred right on the landlord; and is not qualified by any condition at the discretion of the parties. In the given facts, the order of eviction becomes absolute when the court granted it and it cannot be made dependent upon performance of any other conditions subsequent to order of eviction. Therefore, the tenant cannot contend that for any breach on the part of the landlord, in relation to other stipulation it would render the order of eviction inexecutable. At the best, the tenant can object to execution contending that it cannot be executed before the period fixed in the compromise, nothing beyond that. Therefore, the order becomes executable at any time after the date fixed for vacating the building. Accordingly, the civil revision petition is dismissed. No costs. Transmit the LCR forthwith. The court below shall give tenant time to remove machineries and vacate the building on any terms and conditions deem fit to fix.