Decided on October 09,1995

LEELAMMA Appellant
MADHAVAN Respondents


- (1.)This is a petition under Art.227 of the Constitution filed by the landlord of a building. The landlord obtained an order for eviction against respondent No.3 under S.11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter called the Act. The operative portion of the order for eviction read as follows:
"In the result, the petition is allowed with costs. The respondent is directed to surrender vacant possession of the petition schedule building within 4 months from today. The petitioner will reconstruct the building within six mouths from the date of surrender. The respondent will have the first option to occupy the room in the reconstructed building. The extent of the room shall be the same as that of the room which is vacated now". (emphasis supplied)

Though the tenant challenged the order for eviction before the Appellate Authority and this court in Revision, he did not succeed. The landlord did not object to the direction that the extent of the room to be offered to the tenant shall be the same as that of the room which is to be vacated by the tenant. But when the tenant approached the Supreme Court challenging the order for eviction, their Lordships refused to interfere with the orders of the authorities below. The Supreme Court further proceeded to observe as follows:

"Learned counsel for the respondent stated and it is in the order of the Rent Controller that the landlord had undertaken to deliver a suitable portion of the premises after reconstruction. It is accordingly reiterated". (Emphasis supplied)

(2.)Subsequent to the order of the Supreme Court, the tenant vacated the premises. The landlord reconstructed the building. The landlord claims that she offered to the tenant equal area in the upstair portion of the three storied building which she was putting up by way of reconstruction. But the tenor was not willing to accept the same and was insisting on a room in the ground floor itself, since according to him he had been evicted from a room in the ground floor. The case of the offer by the landlord is disputed by the tenant.
(3.)The tenant filed an application before the Principal Munsiffs Court, Ernakulam which was numbered as E.P.590 of 1994. The said application purports to be one under O.21 R.10, 11 and 35 of the Code of Civil Procedure read with S.14 of the Act. The tenant claiming himself to be the decree holder complained that the landlord-judgment debtor had not put the tenant in possession of the reconstructed building despite the lapse of time granted therefor and hence the tenant is entitled to delivery of a suitable portion of the building in execution. The tenant also filed an application which was numbered as E.A.351 of 1994 seeking an order of injunction restraining the landlord from inducting any strangers into the room which according to him corresponded to the room earlier occupied by him. The landlord appeared and filed a preliminary objection contending that the execution petition was not maintainable in law and that that court had no jurisdiction to grant the reliefs prayed for in the execution petition and in the interlocutory application and that the question of jurisdiction should be taken up and decided as a preliminary issue. The landlord also reserved her rights to raise all other available contentions in case the question of jurisdiction was decided against her. The principal Munsiff who apparently was also the Rent Controller by order dated 9-8-1994 held that it had jurisdiction to entertain the application and consequently overruled the preliminary objections raised by the landlord. Not content, the landlord filed a revision against the order of the Principal Munsiff and Rent Controller under the proviso to S.14 of the Act before the District Court. The District Court by its order dated 17-11-1994 held that the executing court had jurisdiction to order restoration of possession in case an order for eviction is passed under S.11(4)(iv) of the Act. It also held that there was no substance in the contention of the appellant that there was no executable order in favour of the tenant. Consequently the District Court dismissed the revision. The correctness of the said decision is sought to be questioned in this proceeding.

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