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        REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 9151 OF 2017         (ARISING OUT OF SLP (C) No.23533/2016)

Hameed Kunju    ...Appellant(s)           

VERSUS Nazim       ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the appellant-landlord

against  the  final  judgment  and  order  dated

11.01.2016 passed by the High Court of  Kerala at

Ernakulam in O.P.(RC) No. 69 of 2015(O) whereby

the  High  Court  allowed  the  petition  filed  by  the

respondent  herein  under  Article  227  of  the

Constitution of India.

3) The  controversy  involved  in  this  appeal  is

short. It arises out of an eviction matter.  However,

in order to appreciate the controversy in its proper

perspective, we consider it  apposite to set out the

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factual background of the case in detail with a view

to show as to how the litigation between the parties

progressed in the last 11 years before the Courts

below and how it was dealt with at different stages

which  eventually  led  to  passing  of  the  impugned

order  giving  rise  to  filing  of  this  appeal  by  the

landlord by way of special leave before this Court.

4) The  appellant  is  the  owner/landlord of  eight

schedule suit shops details of which are specified in

the  eviction  petition.  The  respondent  is  in

possession of one shop out of eight shops as tenant

at a monthly rent of Rs.350/-. The remaining seven

shops  were  in  occupation  of  other  tenants  at  all

relevant time.  

5) The  appellant  filed  one  eviction  petition

(OP(RC)  No.3/2006)  before  the  Rent  Controlling

Court (hereinafter referred to as the “Trial  Court”)

against his 8 tenants, which included the present

respondent  herein  also.  The  eviction  was  claimed

under  Section  11(2)(b)  and  11(3)  of  the  Kerala

Buildings  (lease  and  Rent  Control)  Act,  1965

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(hereinafter referred to as “the Act”) inter alia on the

ground of  bona fide need of the appellant to start

business in the schedule suit shops. The appellant

filed  the  eviction  petition  through  his  power  of

attorney  holder.  All  the  tenants  including  the

respondent  herein  entered  appearance  and  filed

their written statements. They denied the material

averments made in eviction petition.

6) By  order  dated  13.08.2007,  the  Trial  Court

placed the respondents (tenants)  ex parte because

on that day none of the respondents appeared.  The

Trial Court then recorded evidence of the appellant

(landlord) and his witness and adjourned the case

to 21.08.2007 for  further  hearing.  On 21.08.2007

also,  the  tenants  remained  absent.   The  Court

passed the eviction order on that day against all the

tenants  including  the  respondent  herein  by

accepting  the  case  set  up  by  the  appellant  on

merits.

7) Felt aggrieved by the aforementioned eviction

order,  the tenants filed an appeal before the Rent

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Control  Appellate  Authority  being  RCA  No.

51/2007. By order dated 28.08.2008, the appellate

authority  allowed  the  appeal,  set  aside  the  order

dated  21.08.2007  and  remanded  the  eviction

petition (RC(OP) No.3 of 2006) to the Trial Court for

its fresh disposal on merits in accordance with law.

8) After  the  remand,  the  Trial  Court  adjourned

the  case  on  few  dates  such  as  29.09.2008,

04.11.2008  and  03.12.2008  and  then  fixed  for

08.01.2009.  On  08.01.2009,  since  the  Power  of

Attorney  of  the  appellant  and proof  affidavit  were

neither filed nor the Power of Attorney Holder was

present,  the  Trial  Court  dismissed  the  eviction

petition (3/2006) for default.

9) The  appellant  then  filed  an  application  (IA

210/2010)  and  sought  restoration  of  his  eviction

petition  and  for  setting  aside  of  the  order  dated

08.01.2009 by which his eviction petition (3/2006)

had been dismissed. This application was listed for

hearing  on  15.03.2010.  On  the  said  date,  the

appellant’s  (petitioner’s)  counsel  was  absent  and

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hence,  the  Trial  Court  dismissed  the  appellant's

restoration  application  (I.A.  No.210/2010)  for

default.  

10) Felt aggrieved by the said order,  the appellant

(petitioner)  filed another application being I.A. No.

437/2010  praying  therein  for  restoration  of  his

earlier  application,  i.e.,  (IA-210/2010).   This

application  was  also  dismissed  vide  order  dated

27.09.2010 by the Trial Court.  

11) Aggrieved  by  the  said  order,  the  appellant

carried  the  matter  to  the  appellate  authority  in

appeal being RCA 12/2011.

12) By  order  dated  28.01.2014,  the  appellate

Authority  allowed  the  appeal,  set  aside  the

aforementioned  dismissal  orders  and  restored  the

appellant's original eviction petition being R.C.(OP)

No. 3/2006 and remanded the eviction petition to

the  Trial  Court  for  trial  on  merits.  The  appellate

Court, however, while restoring the eviction petition

directed the appellant (petitioner) to pay a sum of

Rs.4000/-   by  way  of  cost  to  the  tenants

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(respondents) and Rs.2000/-  to the District Legal

Services Authority within 15 days failing which the

appeal  was  to  be  dismissed.  The  parties  were

directed  to  appear  before  the  Trial  Court  on

28.02.2014  to  enable  the  Trial  Court  to  proceed

with the trial of the eviction petition and conclude

the same at an early date.

13) After  remand  of  the  eviction  petition  to  the

Trial  Court,  though  there  was  no  need  to  again

issue notice to the parties for their appearance for

the  reason  that  the  appellate  Court  had  already

fixed  the  date  for  the  appearance  of  the  parties

before the Trial Court on 28.02.2014, yet the Trial

Court in its judicial discretion directed issuance of

fresh notice to all the parties to the eviction petition

for their appearance and the case was accordingly

fixed for 27.03.2014.  

14) On  27.03.2014,  the  case  was  adjourned  for

02.06.2014  and  then  to  10.07.2014.  On

10.07.2014,  none  appeared  for  the  tenants  (8  in

number) despite service to them and hence the Trial

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Court proceeded to record evidence of the petitioner

(appellant) and heard the arguments. The case was,

however, adjourned to 22.07.2014, 25.07.2014 and

lastly  to  31.07.2014.  The  respondents  (tenants)

though  served  and  otherwise  also  had  full

knowledge of the proceedings did not appear on any

of these dates for the reasons best known to them.  

15) On  31.07.2014,  the  Trial  Court  passed  an

eviction order and decreed the appellant's eviction

petition. The Trial Court directed eviction of all the

tenants from the suit  shops including that  of  the

respondent herein from his shop. Since the tenants

did  not  vacate  the  suit  shops,  the  appellant  filed

execution  application  (EP  60/2014).  Notices  were

issued to the tenants for hearing of  the execution

case on 16.01.2015. As the Court did not sit on that

day, the petition was adjourned to 04.02.2015.  On

that  day,  the  tenants  including  the  respondent

entered  appearance  pursuant  to  notice  served  on

them.   However,  the  petition  was  adjourned  to

05.03.2015  to  enable  the  tenants  to  file  their

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objections.   When  the  matter  came  up  on

05.03.2015,  it  was  submitted  on  behalf  of  the

tenants  that  their  objections  have  been  filed.

However, the matter was adjourned to 19.03.2015.

On  19.03.2015,  the  Trial  Court  found  that  the

tenants had not filed their objections and hence the

Trial Court passed an order to deliver the suit shops

to the appellant on 25.03.2015 and fixed the matter

on  26.03.2015  for  filing  delivery  report.  The

appellant (petitioner) accordingly took delivery of the

suit shops with the police aid by breaking open the

locks put on the suit shops.  

16) On 26.03.2015,  the  Executing  Court  noticed

that the possession of all the suit shops has been

delivered to the appellant (decree holder), therefore,

closed  the  execution  case  (E.P.No.60/2014)  by

recording satisfaction of the order.     

17) So  far  as  seven  out  of  eight  tenants  are

concerned, they did not pursue the matter further.

In other words, the seven tenants accepted the fate

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of  their  case  and,  therefore,  this  Court  is  not

concerned about seven tenants.

18) However,  so  far  as  the  present  respondent-

tenant  is  concerned,  he  alone  pursued  the  issue

further  and  filed  one  application  being  EA  No.

35/2015 in decided execution petition (EP 60/2014)

and  made  a  prayer  therein  that  the  order  dated

19.03.2015 directing delivery of possession should

be set aside.

19) On  26.03.2015,  the  respondent  filed  one

application  (IA  789/2015)  in  main  case

(RC(OP)No.3/2006)  and  prayed  therein  that  the

eviction  order  dated  31.07.2014  passed  by  the

Court be set aside on the ground that the tenants

were neither put to notice nor were heard before the

order was passed. An application (IA 790/2015) for

condonation  of  delay  of  180  days  in  filing  the

application  for  setting  aside  the  order  dated

31.07.2014  was  also  filed.  Another  application

(IA791/2015) was filed by the respondent seeking

therein a prayer for redelivery of the shop to him.

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20) During  pendency  of  these  applications  made

by the respondent and before  any order  could be

passed  by  the  Trial  Court/Executing  Court,  the

respondent  approached  the  High  Court  under

Article  227  of  the  Constitution  of  India  in  writ

petition and questioned the legality and correctness

of four orders of the Trial Court/Executing Court.

These  orders  were:  (1)  eviction  order  dated

31.07.2014  passed  by  the  Trial  Court  (2)  order

dated  19.03.2015  passed  by  the  Executing  Court

which had directed taking of delivery of suit shops

(3)   delivery  report  dated 25.03.2015 filed  by  the

bailiff  and  (4)  order  dated  26.03.2015  of  the

Executing  Court  closing  the  Execution  Case  No.

60/2014.

21)   The High Court allowed the writ petition and

while  in  substance  quashed  all  the  four  orders

impugned  in  the  writ  petition  referred  supra

remanded the case to the Trial Court for fresh trial

with the following directions:

The Rent Control Court, Karunagapally shall pass orders allowing I.A.No.789 of 2015

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and I.A.  No.790 of  2015 in R.C.(OP)NO.3 of 2006 expeditiously and in any event within two  weeks  from  the  date  on  which  the petitioner  produces a certified copy of  this order. The landlord and the tenants shall in order to enable the rent control court to act as  directed  above,  appear  through  counsel before the rent control court on 29.02.2016. The  rent  control  court  shall  thereupon consider  the question whether  the  landlord namely the appellant in R.C.A.No.12 of 2011 had complied with the stipulation regarding payment of the sum of Rs. 4,000/- as costs to the respondents in R.C.A.No.12 of 2011. This enquiry shall be completed before the closure of the civil courts for the summer vacation of 2016. Needless to say, if costs was not paid within the stipulated time, the rent control court will have no jurisdiction to dispose of R.C.(OP)No.3 of 2006 afresh. In the event of the rent control court entering a finding that the sum of Rs. 4,000/- was paid as costs to the  respondents  in  R.C.A.No.12  of  2011 by the  appellant  therein  within  the  stipulated time, the rent control court shall dispose of R.C.(OP)No.3 of  2006 afresh,  after  affording both sides an opportunity to adduce oral and documentary evidence.  Depending upon the outcome of the enquiry to be held by the rent control court, it will be open to the tenants to move the execution court for redelivery. Until  such  time  as  the  rent  control  court takes a decision in the matter, the status-quo as on today as regards the petition schedule property  in  R.C.(OP)No.3  of  2006  shall  be maintained.  In  other  words,  the  landlord shall not let it out to any one else and shall not transfer possession thereof to any third party. In view of the aforesaid directions, the Rent  Control  Court  shall  pass  an  order closing I.A.No.791 of 2015 in R.C.(O.P)No.3 of 2006,  reserving  liberty  with  the  tenants  to move  the  execution  court  for  redelivery,  if they succeed in the enquiry to be held rent control court, regarding payment of the sum of Rs. 4,000/- as costs.  

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22)  It is against this order, the landlord has felt

aggrieved  and  filed  this  appeal  by  way  of  special

leave before this Court.  

23) Heard Mr. Raghenth Basant, learned counsel

for  the  appellant  and  Mr.  Venkita  Subramoniam

T.R., learned counsel for the respondent.

24) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are constrained to allow the appeal,  set  aside the

impugned order and dismiss the writ petition filed

by the respondent out of which this appeal arises.

25) The  short  question  which  arises  for

consideration  in  this  appeal  is  whether  the  High

Court was justified in allowing the writ petition filed

by the respondent-tenant under Article 227 of the

Constitution  and  was,  therefore,  justified  in

interfering  in  the  four  orders  of  the  Trial

Court/Executing  Court  impugned  therein  and,  in

consequence, justified in remanding the case to the

Trial Court for deciding the eviction petition de novo

on merits with specific directions to the Trial Court?

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26) In our  considered opinion,  the  detailed  facts

mentioned supra would clearly reveal that the High

Court  not  only  erred  in  entertaining  the

respondent's  writ  petition  but  also  erred  in

exercising its supervisory jurisdiction by interfering

in the orders impugned therein.

27)  In  our  considered  view,  there  was  no  case

made out on facts or/and in law by the respondent

for entertaining his writ petition and interfere in the

orders impugned therein.  

28) In the first instance itself, the High Court, in

our view, should have dismissed the writ petition in

limine  on  the  ground  that  since  all  the  4  orders

impugned  in  the  writ  petition  were  amenable  to

their  challenge  before  the  appellate  authority,  the

writ petition was not the proper remedy without first

filing the appeal and get the same decided by the

appellate Court on its merit in accordance with law.

In other words, the High Court should have declined

to entertain the writ petition under Article 227 on

the ground of availability of an alternative remedy of

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appeal  to  the  respondent.  Indeed  the  respondent

had  actually  filed  appeal  in  the  first  round  of

litigation against the orders of the Trial Court.  

29) There  was,  therefore,  no  reason  much  less

justifiable  one  for  the  High  Court  to  have

entertained the  writ  under  Article  227 against  as

many  as  four  orders  passed  by  the  Trial  Court/

executing Court.  

30) In  any  case,  in  our  considered  view,  the

executing  Court  having  seized  of  the  applications

filed by the respondent, there was no justification

on the part of the High Court to have entertained

the writ petition and decided them like an original

court.   All  that  the  High  Court,  in  such

circumstances,  could  do  was  to  request  the

executing  Court  to  dispose  of  the  pending

applications (IAs)  filed by the respondent on their

respective merits leaving the parties to challenge the

orders once passed on such applications by filing

appeal,  before  the  appellate  authorities.  It  was,

however, not done.

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31) Be  that  as  it  may,  there  was  yet  another

reason  which  should  have  persuaded  the  High

Court to decline to entertain the writ petition at its

threshold.  

32) The High Court  should have  appreciated the

undisputed fact that the eviction decree had stood

executed and possession was already delivered to

the  appellant  of  all  the  suit  shops  including  the

shop in possession of the respondent in accordance

with provisions of Order 21 Rule 35 of the Code. It

should  also  have  been  appreciated  that  seven

tenants  had  not  pursued  their  case  against  the

same eviction decree and allowed the appellant to

obtain possession of the suit shops. Whereas it was

only  the  respondent who had raised the  frivolous

pleas against such action in these proceedings.

33) In  our  considered  view,  once  the  possession

had  been  delivered  and  decree  was  recorded  as

satisfied in accordance with law, the litigation had

come  to  an  end  leaving  no  lis pending.  In  these

circumstances,  in  the  absence  of  any  prima facie

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case  having  been  made  out  on  any  jurisdictional

issue affecting the very jurisdiction of the Court in

passing the eviction decree, the High Court should

have declined to examine the legality of four orders

impugned therein.

34) Apart from what is held supra, we are of the

considered  opinion  that  there  was  absolutely  no

case  made  out  by  the  respondent  on  the  merits

calling any kind of interference by the High Court in

its supervisory jurisdiction under Article 227 in any

of the four orders. The reasons are not far to seek.

35)  It is not in dispute that the respondent was

aware of  the eviction proceedings because he had

been contesting the proceedings since inception at

every stage in the Trial Court and then in appeals. It

is also not in dispute that it was at his instance, the

appellate Court had remanded the case to the Trial

Court by order dated 28.01.2014 and fixed the date

for the parties to appear before the Trial Court. It is

also  not  in  dispute  that  though  the  respondent

knew the date (28.02.2014) of his appearance before

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the  Trial  Court,  yet  he  failed  to  appear  on

28.02.2014  and  all  subsequent  dates  despite

second service of notice of the proceedings.

36) In  these  circumstances,  in  our  considered

view, the Trial Court was fully justified in passing

the eviction order on merits on 31.07.2014 against

the  respondent.  Once  the  final  order  had  been

passed, the remedy of the respondent lies in filing

appeal against such order to the appellate Court or

apply for its setting aside under Order 9 Rule 13 of

the Code. The respondent did not do so within the

time prescribed for the reasons best known to him.

37) In our considered opinion, this is not a case

where the respondent could be held to be unaware

of the eviction proceedings pending or/and decided

against him nor it was a case holding that he was

never  afforded  any  opportunity  to  contest  the

eviction proceedings.  

38) On the other hand, we have no hesitation in

forming  an  opinion  that  the  respondent  was

contesting  the  eviction  proceedings  as  a

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“professional litigant” and was successful to a large

extent in keeping the proceedings pending for  ten

years which enabled him to enjoy possession of the

suit shop to the detriment of appellant's interest.  

39) In our  considered opinion,  no one prevented

the  respondent  from  appearing  before  the  Trial

Court after the remand and contest the proceedings

on merits. Despite the knowledge of the proceedings

and  the  date  fixed  by  the  appellate  Court  at  his

instance,  if the respondent did not appear in the

Trial  Court  and  failed  to  contest  the  eviction

proceedings, he has to blame himself and none. If

for  one  or  other  reason,  he  could  not  appear  on

28.02.2014,  no  one  prevented  him  to  appear  on

subsequent  dates  of  hearing  and  show  good  or

sufficient cause for his absence on the previous date

of hearing.  

40)  Apart from what is held above and disagreeing

with the view of  the High Court which persuaded

the High Court to again remand the case, we are of

the  considered  opinion  that  the  appellant  had

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ensured  compliance  of  the  order  of  the  earlier

appellate Court by paying the cost of Rs.4000/- to

the respondent's counsel and Rs.2000/- to the legal

services. Indeed, the very fact that the appellant had

stated in his counter affidavit duly supported by an

affidavit of his advocate (pages 51-52 of SLP counter

affidavit Para 5), there was no reason for the High

Court to have doubted the sworn testimony of the

appellant and his advocate on this issue.  It should

have been accepted by the High Court for want of

anything said by the respondent in rebuttal except

denying.  

41) In the light of what we have held above, there

was,  in  our  view,  neither  any  basis  nor  any

justifiable  reason  for  the  High  Court  to  have

directed  holding  of  any  factual  inquiry  into  the

question of payment of cost. The directions to hold

an inquiry on this issue is, therefore, wholly illegal

and uncalled for.

42) We are also of the considered opinion that the

applications filed by the respondent for setting aside

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of the eviction orders dated 31.07.2014, 19.03.2015

and 26.03.2015 and application for condonation of

delay  in  filing  such  applications  and  lastly,  an

application  filed  for  giving  redelivery  of  suit  shop

were  in  the  nature  of  abusing  the  process  of  the

Court  and  were  liable  to  be  dismissed  which

unfortunately  the  High Court  failed  to  do so and

went on to entertain such applications.   

43) We  also  find  that  while  issuing  impugned

directions,  the  High  Court  again  exceeded  its

supervisory jurisdiction under Article  227 when it

went to the extent of issuing direction to the Trial

Court to "allow" the applications IA Nos.  789 and

790 of 2015 filed by the respondent.  

44) In so doing, the High Court failed to see that

the High Court curtailed the judicial powers of the

Trial  Court  in  passing  appropriate  order  on such

applications. The High Court had no jurisdiction to

issue  directions  to  the  Trial  Court  to  pass  a

particular order by either allowing the application or

rejecting it. All that the High Court could do in such

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case  was to  remand the  case  and leave  the  Trial

Court  to  pass  appropriate  orders  on  the

application(s) in exercise of its judicial discretion.

45) Be  that  as  it  may,  once  we  hold  that  the

impugned  order  is  without  jurisdiction,  the  same

deserves to be set aside.  

46) Learned  counsel  for  the  respondent  (tenant)

while supporting the impugned order argued some

points  but  in  the  light  of  our  findings  recorded

supra the points urged by learned counsel for the

respondent has not substance. We, therefore, do not

consider it necessary to deal with them in detail.  

47) Before  parting,  we  consider  it  apposite  to

observe that the object of the Rent Laws  all over the

State is to ensure speedy disposal of eviction cases

between  the  landlord  and  tenant  and  especially

those cases where the landlord seek eviction for his

bona fide need.  

48) We  sincerely  feel  that  the  eviction  matters

should  be  given  priority  in  their  disposal  at  all

stages of litigation and especially where the eviction

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is claimed on the ground of  bona fide need of the

landlord.  We  hope  and  trust  that  due  attention

would  be  paid  by  all  courts  to  ensure  speedy

disposal of eviction cases.       

49) As  a  result  of  the  foregoing  discussion,  the

appeal  succeeds  and  is  allowed  with  costs  of

Rs.25,000/-  payable  by  the  respondent  to  the

appellant. The impugned order is set aside and all

the  aforementioned  applications  filed  by  the

respondent before the Trial Court in main eviction

case No. RC(OP)No.3/2006 and EP No. 60/2014 are

dismissed as being wholly misconceived and devoid

of any merit.  Costs as awarded above.

                                         ………...................................J.  [ABHAY MANOHAR SAPRE]

                         …...……..................................J. [R. BANUMATHI]

New Delhi; July 17, 2017