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Case Number

W.P(C) No. 30621 of 2008

Attorney(S)

For the Appellant: B. Krishna Mani, Advocate.
For the Respondent: R. Sudhir, Advocate.

Judges

Pius C. Kuriakose
P.Q Barkath Ali, JJ.

Acts

S.220(b) (3 meter distance Rule) of the Kerala Panchayat Raj Act.
S.220(b) of the Kerala Panchayat Raj Act.
KERALA CIVIL COURTS ACT 1957
S. 14 of Act 2 of 1965.
Rent Control Act

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Smart Summary

Judgment Summary — Pius C. Kuriakose, J.

Factual and Procedural Background

This writ petition under Article 227 challenges Ext.P5 (an order passed by the Rent Control Court in execution proceedings directing proclamation and sale of the landlord's properties) and Ext.P7 (the District Court's order in revision confirming Ext.P5). The background facts as presented in the opinion are:

An eviction order was ultimately passed in favour of the petitioner-landlord on grounds of reconstruction. After litigation up to the Supreme Court, the petitioner obtained possession and demolished the building.
The tenant filed an execution petition alleging the landlord wilfully neglected to comply with eviction directions to complete reconstruction within six months and to provide the tenant substantially the same area at fair rent.
The matter was earlier settled by this Court by Ext.P3, which provided that if reconstruction was not completed within six months the landlord would be liable to pay compensation — Rs. 1,000 per month to the respondent-tenant in that petition and Rs. 2,000 per month to another tenant affected by a similar order.
The respondent filed Fresh E.P. No. 209/2003 alleging reconstruction was incomplete and compensation unpaid. The landlord resisted, contending inability to reconstruct due to prohibitory orders by the local authority (alleged violation of S.220(b) of the Kerala Panchayat Raj Act).
The Execution Court repelled the landlord's contentions and passed Ext.P5 directing proclamation and sale. The petitioner filed a revision under S.14 to the District Court, Alappuzha; that revision was dismissed by Ext.P7. The petitioner then filed the present writ under Art.227 to quash Ext.P7.

Legal Issues Presented

Whether the District Court, Alappuzha, had inherent jurisdiction to entertain the revision petition against the Munsiff's execution order (Ext.P5) — i.e., whether Ext.P7 is a nullity for want of jurisdiction under S.14 of Act 2 of 1965 read with the rules on appellate jurisdiction.
Whether the petitioner-landlord's failure to complete reconstruction was excused because of prohibitory orders issued by the local authority invoking S.220(b) of the Kerala Panchayat Raj Act (i.e., whether he was prevented from performing by statutory prohibitions).
Whether the High Court should exercise its supervisory jurisdiction under Article 227 in the present circumstances (i.e., whether Ext.P7 is without jurisdiction, per se illegal, or so unreasonable/perverse as to warrant interference).

Arguments of the Parties

Appellant's (Petitioner-Landlord) Arguments

Ext.P7 is a nullity because the learned District Judge lacked inherent jurisdiction to pass that order; reliance was placed on S.14 of Act 2 of 1965 (which governs execution of certain orders by Munsiffs) and the proviso to that section indicating revision lies to the court to which appeals ordinarily lie against decisions of the Munsiff.
Counsel argued that, in the present case, appeals from the Munsiff Court ordinarily lie to the Sub Court, Cherthala, and hence only the Sub Court has jurisdiction to decide revision petitions against orders like Ext.P5. A prior revision (R.C.R.P No. 1/2008) had been returned by a different District Judge and directed to be presented to the proper court (the Sub Court), which the petitioner contends demonstrates the Alappuzha District Court lacked jurisdiction.
Counsel relied on authorities (Thankamma v. State of Kerala and Sunder Dass v. Ram Prakash) to support the proposition that an order passed by a court lacking inherent jurisdiction is a nullity and that such a defect can be raised at any stage.
On the merits, the petitioner asserted there was no wilful negligence in carrying out reconstruction; rather, reconstruction was prevented by a prohibitory order issued by the Panchayat (Ext.P2) alleging violation of S.220(b) — meaning the petitioner could not be compelled to undertake an illegal construction. The legality of Ext.P2 and the construction is being pursued before other fora.

The opinion does not contain a detailed account of the respondent-tenant's counter-arguments in this writ petition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thankamma v. State of Kerala (1982 KLT 496)	Cited by petitioner to support the proposition that an order passed by a court lacking inherent jurisdiction is a nullity and such a defect can be raised at any stage.	The judgment was relied upon by the petitioner. The High Court considered the jurisdictional argument but, after interpreting the statutory framework (notably S.13 of the Kerala Civil Courts Act 1957), rejected the contention that the District Court lacked inherent jurisdiction; consequently the court did not treat Ext.P7 as a nullity.
Sunder Dass v. Ram Prakash ((1977) 2 SCC 662 : AIR 1977 SC 1201)	Cited by petitioner as authority for the proposition that lack of inherent jurisdiction renders an order a nullity and such a point may be taken at any stage.	The Supreme Court judgment was relied upon by the petitioner. The High Court noted the reliance but found on statutory construction (S.13 of the Kerala Civil Courts Act 1957) that the District Court had jurisdiction and therefore rejected the submission that Ext.P7 was a nullity.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, stated in the language and limits of the opinion:

Statutory provisions were placed at the centre of the jurisdictional inquiry. The Court extracted and considered S.14 of Act 2 of 1965 (the provision governing execution of certain orders by the Munsiff and the right of revision) and S.13 of the Kerala Civil Courts Act 1957 (governing appellate jurisdiction of the District Court and Subordinate Judge's Court).
The Court interpreted S.13 to mean that appeals from decrees and orders of a Munsiff ordinarily lie to the District Court. The first proviso to S.13 creates an "extraordinary situation" where, if a Subordinate Judge's Court (Sub Court) is established at a place other than where the District Court is stationed, appeals from the Munsiff within the local limits of the Sub Court may be preferred in that Sub Court. Thus, the ordinary rule is appeal to the District Court, with the proviso creating a specific exception.
Applying that construction to the facts, the Court held that the District Court, Alappuzha, properly entertained the revision petition against Ext.P5 and therefore did not lack inherent jurisdiction. Accordingly, the argument that Ext.P7 was a nullity for lack of jurisdiction was rejected.
The Court observed it would not examine the correctness of a distinct order passed by another District Judge in R.C.R.P No. 1/2008; in any event, the petitioner had himself instituted the revision in the Alappuzha District Court and argued there, so he could not contend the Alappuzha District Court lacked jurisdiction.
On the question of supervisory jurisdiction under Article 227, the Court reiterated the settled parameters: Art.227 is a visitorial jurisdiction and is not to be exercised to correct every erroneous order of a subordinate court. It is available when an order is without jurisdiction, per se illegal (violates clear statutory provision), or so unreasonable/perverse that no reasonable person trained in law could have made it. Applying these parameters, the Court found no reason to interfere with Ext.P7.
As to the landlord's contention that reconstruction was prevented by a prohibitory order under S.220(b) of the Kerala Panchayat Raj Act, the Court observed that it was doubtful whether S.220(b) would apply to the reconstruction (which the Court described as reconstruction in compliance with Rent Control Act orders rather than a brand new construction). The Court declined to decide that issue finally in this petition because the matter was being pursued in other proceedings before this Court and other fora.
Finally, the Court gave a remedial direction that the appellant (petitioner-landlord) is given two more months from the date of the order to pay the entire balance amount he is liable to pay in terms of the impugned and earlier orders.

Holding and Implications

Holding:

The Writ Petition under Article 227 is dismissed.

Direct consequences and implications for the parties:

The District Court's Ext.P7 stands; the Court found that the Alappuzha District Court had inherent jurisdiction to entertain the revision against the Munsiff's execution order (Ext.P5) and that Ext.P7 was not a nullity.
The High Court refused to exercise supervisory jurisdiction under Article 227 because Ext.P7 was neither without jurisdiction nor per se illegal nor so perverse as to warrant interference.
The appellant (petitioner-landlord) was granted two months from the date of the judgment to pay the entire balance amount owed under the impugned and earlier orders.
The Court expressly declined to finally decide the question whether S.220(b) of the Kerala Panchayat Raj Act applies to the reconstruction carried out in compliance with Rent Control Act orders; that issue remains the subject of other proceedings.

Broader legal implications:

The opinion does not announce any new legal principle or a broad precedent beyond its statutory interpretation of S.13 (Kerala Civil Courts Act 1957) as confirming the ordinary appellate jurisdiction of the District Court over Munsiff Courts and the limited exceptional role of the Sub Court under the proviso. No new precedent was set by this decision beyond the application of established visitorial principles under Article 227 and the statutory scheme.

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Vijayappa Kurup v. Padmanabhan

The Judgment of the Court was delivered by

Pius. C. Kuriakose, J.:— In this Writ Petition under Art.227 of the Constitution, the landlord impugns Ext.P5 order passed by the Rent Control Court in execution proceedings and Ext.P7 order passed by the District Court in confirmation of Ext.P5 Eviction order was passed by the Rent Control Court in favour of the petitioner on the ground of reconstruction and after a long drawn out battle which was fought up to the Supreme Court of India, the petitioner took possession of the building. Once possession was obtained, the building was demolished. The tenant filed an execution petition complaining that the landlord has willfully neglected in complying with the directions in the eviction order which were to the effect that reconstruction should be carried out within six months and the tenant must be provided with an area more or less equal to the area previously occupied by him subject to the tenant's liability to pay fair rent. The above E.P was resisted by the landlord on various grounds and ultimately the issue was settled by this Court by Ext.P3 order. Under Ext.P3 order, this Court found that in the event of the landlord not completing the reconstruction within six months of Ext.P3, the petitioner/landlord will become liable to pay compensation at the rate of Rs. 1,000/- to the respondent tenant and at the rate of Rs. 2,000/- per month to another tenant against whom also similar order of eviction had been passed in favour of the petitioner. Fresh E.P No. 209/2003 was filed by the respondent complaining that reconstruction is not completed and that the compensation amount directed to be paid under Ext.P3 is not paid. This E.P was resisted by the petitioner inter alia on the ground that there is no willful negligence on his part in carrying out the reconstruction, but he is unable to carry out the reconstruction because of prohibitory orders issued by the local authority on the reason that the proposed construction is in violation of S.220(b) of the Kerala Panchayat Raj Act. The Execution Court repelled the contentions and passed Ext.P5 order directing proclamation and sale of properties belonging to the landlord. Against Ext.P5, a Revision Petition under S. 14 was preferred by the petitioner to the District Court, Alappuzha. That Revision has been dismissed by Ext.P7 order by the learned District Judge and the present Writ Petition under Art.227 is filed seeking quashment of Ext.P7

2. Sri. B. Krishnamani, learned counsel for the petitioner has addressed us very strenuously and extensively. Sri.

3. Krishnamani submitted that Ext.P7 order is a nullity since the learned District Judge lacked inherent jurisdiction to pass that order. My attention was drawn by Sri. Krishnamani to S. 14 of Act 2 of 1965. According to him, against the decisions of the Munsiff Court, Cherthala which passed Ext.P5, appeals ordinarily lie to the Sub Court, Cherthala and in terms of the proviso to S.14, the Sub Court, Cherthala alone has the jurisdiction to decide Revision Petitions which are filed against orders like Ext.P5 He pointed out that a similar order had been passed by the same Munsiff against the tenant who was respondent in R.C.P No. 34/1990 and against that order, the petitioner had filed a Revision Petition raising grounds identical to those raised in the Revision Petition leading to Ext.P7 That Revision Petition - R.C.R.P No. 1/2008 was considered by another District Judge and that R.C.R.P was not entertained and was returned to the petitioner for presentation before the proper court. Pursuant to that order, that R.C.R.P was presented to the Sub Court, Cherthala and that R.C.R.P has been renumbered by the Sub Court, Cherthala and is being considered by that court. According to the learned counsel, any order passed by a court which did not have inherent jurisdiction to pass the same is a nullity and the contention that an order is a nullity due to lack of inherent jurisdiction for the court which passed the same, can be raised at any stage of the proceedings. Sri. B. Krishnamani would fortify his arguments by relying on the judgment of this Court in Thankamma v. State Of Kerala (1982 KLT 496) and also the judgment of the Supreme Court in Sunder Dass v. Ram Prakash . ((1977) 2 SCC 662 : AIR 1977 SC 1201). Coming to the merits, Sri. Krishnamani submitted that at any rate the petitioner landlord is not to blame for the delay which has been caused in the matter of carrying out the reconstruction. There has been no wilful negligence on the part of the petitioner in carrying out the reconstruction. The petitioner was prevented from carrying out the reconstruction by the local authority which issued Ext.P2 prohibitory order restraining reconstruction alleging that the on going construction violates S.220(b) (3 meter distance Rule) of the Kerala Panchayat Raj Act. According to Sri. Krishnamani, any construction in violation of Ext.P2 will be illegal and the petitioner may not be compelled to carry out an illegal construction. Sri. Krishnamani also submitted that the issue regarding the legality of Ext.P2 as well as the construction undertaken by the petitioner is being pursued by the petitioner before other authorities.

4. We have anxiously considered the submissions of the learned counsel. S. 14 of Act 2 of 1965 which is relevant for deciding the issue is extracted below:

“Every order made under S.1 1 (or S.12) or S.13 or S.19 or S.33 and every order passed on appeal under S.18 or on revision under S.20 shall, after the expiry of the time allowed therein be executed by the Munsiff or if there are more than one Munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him:

Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decisions of the said Munsiff.”

5. The argument of Sri. Krishnamani was that appeals against orders passed by the court which passed Ext.P5 ordinarily lie not to the Alappuzha District Court, but to the Sub Court, Cherthala and hence the Sub Court, Cherthala alone has the jurisdiction to entertain Revision Petitions against Ext.P5 We find it difficult to accept the above argument. It is the Kerala Civil Courts Act 1957 which consolidates the law relating to the various Civil Courts in Kerala subordinate to High Court. S.13 of that Act deals with the appellate jurisdiction of District Court and Subordinate Judge's Court and we are extracting S.13 as follows:

“S.13(1): Appeals from the decrees and order of a Munsiff s Court and where the amount or value of the subject matter of the suit does not exceed two lakhs rupees from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court:

Provided that whenever a Subordinate Judge's Court is established in any District at a place other than the place where the District Court is stationed, appeals from the decrees or orders of the Munsiff Courts within the local limits of the jurisdiction of such Subordinate Judge's Court may be preferred in such Subordinate Judge's Court:

Provided further that the District Court may remove to itself from time to time appeals so preferred and dispose of them itself or may, subject to the orders of the High Court, refer any appeals from the decrees and orders of Munsiff s Courts preferred in the District Court to any Subordinate Judge's Court within the district.

13(2):- Omitted .”

6. Even a cursory reading of the above quoted section will show that appeals against the decrees and orders of a Munsiff Court irrespective of valuation lie ordinarily to the District Court. But in an extraordinary situation where the Sub Court is established in a place other than the place where the District Court is stationed, appeals against the decrees and orders of the Munsiff Court may be preferred in the Sub Court. In our view it is to the District Court that appeals against orders of decrees of the Munsiff Court ordinarily lie though under the extraordinary situation envisaged by the first proviso to S.13 appeals may be filed to the Sub Court. In the instant case, the Revision Petition preferred by the petitioner against Ext.P5 before the District Court, Alappuzha was entertained by that court which had every justification to entertain the same and we are not prepared to accept the argument that the said court lacked in inherent jurisdiction.

7. We are not called upon in this Writ Petition to examine the correctness of the order said to have been passed by the other District Judge in R.C.R.P No. 1/2008. According to us, the petitioner who instituted the R.C.R.P against Ext.P5 before the District Court, Alappuzha and argued that Revision Petition before that court is not entitled to canvas the proposition that the Alappuzha District Court lacked in inherent jurisdiction. At any rate, in view of our finding that the Alappuzha District Court did not lack in inherent jurisdiction, the argument of Sri. B. Krishnamani that Ext.P7 is a nullity is only to be repelled.

8. It is trite that the jurisdiction of this Court under Art.227 is a visitorial jurisdiction. The said jurisdiction is not to be invoked for correcting every order which is passed by a Subordinate Court even if the order is found to be wrong. The supervisory jurisdiction under Art.227 is invoked only when the order passed by the lower court can be said to be without jurisdiction or perse illegal in the sense that it violates clear provisions of law - statutory or settled. The supervisory jurisdiction can also be invoked when the order passed by the court below is so wholly unreasonable that it can be branded as a perverse order in the sense that such an order will not be passed by any person having reasonable learning and training in law. Gauging Ext.P7 by the parameters which are applicable for the invocation of the powers under Art. 227, we do not find any reason to interfere with Ext.P7

9. As for the grievance voiced by the petitioner that he is unable to complete the reconstruction due to prohibitory order passed by the Panchayat, it is submitted by the learned counsel that the issue is being agitated by the petitioner before other fora and also before this Court. It is doubtful whether S.220(b) will apply to the present construction which is actually areconstruction in compliance with the orders passed by the authorities under the Rent Control Act and not a brand new construction. We do not propose to decide on that issue finally since admittedly the issue is before this Court, in other proceedings.

10. The result is that the Writ Petition will stand dismissed. The appellant is given two more month's time from today for paying the entire balance amount which he is liable to pay in terms of the impugned orders and earlier orders.

Vijayappa Kurup v. Padmanabhan

Judgment Summary — Pius C. Kuriakose, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Petitioner-Landlord) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Vijayappa Kurup v. Padmanabhan

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