Sajeevan Swamy vs Johnson & Ors.

Soumen Sen, C.J.

Heard Mr.G.Sreekumar (Chelur), learned counsel for the Petitioner and Mr.R.Rajesh Kormath, learned counsel for the Respondents.

One Mr.Johnson filed eviction proceedings against Mr.Sajeevan Swami, the present petitioner in this revision application, praying inter alia for the eviction from the said premises. Mr.Johnson claimed to have purchased the property from the wife of the petitioner herein by a registered assignment deed on 24.01.2009. Thereafter, on 24.01.2009 itself Mr.Sajeevan took possession of the scheduled room on an oral lease from the 1^st respondent/original petitioner for a monthly rent of Rs.3,500/-. It was alleged by Mr.Johnson in the petition filed under Sec.11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 that the present petitioner is residing with his family in the scheduled property as a tenant. Subsequently, on 17.08.2009, it was alleged that Mr.Sajeevan Swami executed a formal lease agreement on the same terms for a period of 11 months. Later, one Mr.Sabu filed O.S.No.770 of 2010 before the Palakkad Sub Court against Mr.Sajeevan Swami for return of advance money and it was settled as per the terms of compromise in the above suit. On 20.01.2011, Mr.Sajeevan Swami and his friend Mr.Sabu entered into a contract for exchange of 20 ¼ cents of land with 12 cents of land (petition schedule property) owned by Mr.Johnson.

There is a dispute with regard to the performance of the contract on the basis of which the exchange agreement has to be performed. In the petition, it was contended that since Mr.Sajeevan has failed to perform his obligations under the exchange agreement and Mr.Johnson was residing along with his wife and family in the property belonging to his wife, a direction may be issued directing Mr.Sajeevan to put Mr.Johnson in vacant possession of the scheduled property within such reasonable time as may be fixed by this Court and in default thereof, to permit the petitioner to recover the vacant possession of the same through due process of execution of the order. Mr.Johnson initiated an eviction proceeding RCP No.22 of 2011 on the ground of arrears of rent and personal needs.

On 07.01.2015, the petitioner herein was set ex-parte by the Rent Control Court. In the said proceedings, it appears that an ex-parte order was passed on 30.01.2015 and an application filed for setting aside the ex-parte order was dismissed on 09.07.2015 on the ground of limitation. The appeal preferred was dismissed for default on 04.06.2018 and application filed for restoration has also been dismissed for default on 13.11.2018. Again, application seeking restoration was filed and dismissed on the ground of delay of 1535 days vide order dated 04.01.2024. Against the order dated 04.01.2024, O.P(RC)No.88 of 2024 was instituted before a Division Bench of this Court. In the said proceedings, on 25.07.2024, a Coordinate Bench, after recording the submission of the learned counsel appearing on behalf of Mr.Sajeevan that the present petitioner was ready to pay the entire arrears of rent at any cost as may be deemed appropriate by this Court, passed an order directing the present petitioner to clear all arrears of rent till January, 2025, amounting to ₹6.30 lakhs, within a period of 45 days. Upon compliance with the said direction, a final order was passed on 14.02.2025 permitting the present petitioner to contest the said proceedings, subject to the payment of ₹15,000/- as costs. The earlier order was confirmed. Since, Mr.Johnson had passed away by then, the ‘personal necessity’ of Johnson no more existed and as a result thereof, a fresh RCP proceedings was initiated by the legal heirs of the Johnson in R.C.P.No.32 of 2025. Consequent upon filing of such application, the present petitioner filed an application in R.C.P.No.22 of 2011 for refund of ₹6.30 lakhs on the ground that the said amount was deposited in the RCP proceedings that has now been withdrawn and the said amount was never intended to be deposited towards arrears thereof, but only to show bona fide and comply with the order of the Coordinate Bench. The learned counsel for the petitioner has strenuously argued that the Principal Munsiff in deciding the said application has misconstrued the orders passed while drafting the stay by the Coordinate Bench and in the absence of a landlord-tenant relationship being established, the said amount is required to be refunded. Previously, the same plea was not raised when the O.P(RC)No.88 of 2024 was heard on merits by the Coordinated Bench and even thereafter.

The learned Principal Munsiff has in fact reproduced in paragraph No.11, the order passed by Coordinate Bench on 07.09.2024 to justify its conviction upon refunding the said amount. The relevant portion of the order as mentioned in paragraph No.11 of the impugned order is reproduced below :

Even at the final hearing of the said petition, before the Coordinate Bench, the issue of landlord and tenant was never raised. In such circumstances, we do not find any reason to interfere with the order passed by the learned Principal Munsiff and accordingly, this petition is dismissed.

In any fresh proceedings wherein the issue of arrears of rent arises for consideration, the amounts already paid shall be duly taken into consideration and adjusted towards the arrears of rent.

The learned counsel for the petitioner has raised the concern that any finding arrived at in this proceedings may affect the suit filed by the wife of the present petitioner for a declaration that the said instrument is sham and nominal.

Needless to mention that the issues before us are entirely different from those raised in the suit and any observations made in this order shall not influence the trial court while deciding the suit.

EXHIBIT P1 TRUE COPY OF THE RENT CONTROL PETITION BEARING NO. 22 OF 2011 FILED BEFORE THE RENT CONTROL COURT, IRINJALAKUDA DATED 22.12.2011

EXHIBIT P2 TRUE COPY OF THE ALLEGED SALE DEED BEARING NO. 164 OF 2009 OF THE IRINJALAKUDA SRO DATED 24.01.2009 ALLEGEDLY EXECUTED BY WIFE OF THE PETITIONER

EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED AT THE INSTANCE OF THE RESPONDENT IN R C P NO. 22 OF 2011 ON THE FILE OF THE RENT CONTROL COURT, IRINJALAKUDA FILED DATED 15.10.2013

EXHIBIT P4 TRUE COPY OF THE ORDER PASSED IN I A NO. 1326 OF 2015 IN R C P NO. 22 OF 2011 DATED 09.07.2015 ON THE FILE OF THE RENT CONTROL COURT, IRINJALAKUDA

EXHIBIT P5 RUE COPY OF THE APPEAL MEMORANDUM FILED IN R C A NO. 22 OF 2016 BEFORE THE RENT CONTROL APPELLATE AUTHORITY, DISTRICT COURT, THRISSUR DATED 19.02.2016

EXHIBIT P6 TRUE COPY OF I A NO. 117 OF 2018 IN R C A NO. 22 OF 2016 FILED ON THE FILE OF THE ADDITIONAL DISTRICT COURT, IRINJALAKUDA DATED 02.07.2018

EXHIBIT P7 TRUE COPY OF E P NO. 54 OF 2022 IN R C P NO. 22 OF 2011 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA FILED DATED 12.07.2022

EXHIBIT P8 TRUE COPY OF I A NO. 4 OF 2023 IN I A NO. 117 OF 2018 IN R C A NO. 22 OF 2016 FILED DATED 02.02.2023 ON THE FILE OF THE ADDITIONAL DISTRICT COURT, IRINJALAKUDA

EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED AT THE INSTANCE OF THE RESPONDENTS 2 TO 5 IN THIS ORIGINAL PETITION TO THE APPLICATION FILED AS EXT P8 FILED DATED 17.07.2023

EXHIBIT P10 TRUE COPY OF I A NO. 1 OF 2023 IN I A NO. 117 OF 2018 IN R C A NO. 22 OF 2016 BEFORE THE ADDITIONAL DISTRICT COURT, IRINJALAKUDA FILED DATED 02.02.2023

EXHIBIT P11 TRUE COPY OF THE OBJECTION FILED IN EXT P10 AT THE INSTANCE OF THE RESPONDENTS 2 TO 5 HEREIN FILED DATED 01.07.2023

EXHIBIT P12 TRUE COPY OF THE ORDER PASSED IN I A NO I OF 2023 IN I A NO 117 OF 2018 IN R C A NO 22 OF 2016 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA DATED 4.1.2024

EXHIBIT P13 TRUE COPY OF THE ORDER PASSED IN R P NO 4 OF 2023 IN I A NO 117 OF 2018 IN R RC A NO 22 OF 2016 DATED 4.1.2024 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA

EXHIBIT P14 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON’BLE COURT IN O P R C NO 88 OF 2024 DATED 25.7.2024

EXHIBIT P15 TRUE COPY OF THE JUDGMENT IN O P R C NO 88 OF 24 DATED 14.2.25 BY THIS HON’BLE COURT

EXHIBIT P16 TRUE COPY OF THE ORDER PASSED IN C A NO 10 OF 25 IN E P NO 547 OF 22 IN R C P NO 22 OF 11 DATED 21.6.25

EXHIBIT R2(A) TRUE COPY OF THE LAWYER NOTICE DATED 30.10.2025 SENT BY THE RESPONDENTS 2 TO 5 HEREIN TO THE PETITIONER

EXHIBIT R2(B) TRUE COPY OF THE REPLY LAWYER NOTICE DATED 4.11.2025 SENT ON BEHALF OF THE PETITIONER

EXHIBIT R2(C) TRUE COPY OF THE MEMORANDUM DATED 29.11.2025 OF R.C.P. NO. 32 OF 2025 ON THE FILE OF THE RENT CONTROL COURT, IRINJALAKUDA

EXHIBIT R2(D) TRUE COPY OF I.A.NO. 1 OF 2026 AND THE ACCOMPANYING AFFIDAVIT DATED 1.1.2026 IN R.C.P.NO. 32 OF 2025 ON THE FILE OF THE RENT CONTROL COURT, IRINJALAKUDA