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High Court Has No Jurisdiction To Direct Trial Court To Pass Particular Order: SC Slams Kerala HC [Read Judgment]

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17 July 2017 6:09 PM GMT
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While setting aside a judgment on a rent control matter by the Kerala High Court, the Supreme Court has observed that the high court has no jurisdiction to issue directions to the trial court to pass a particular order by either allowing the application or rejecting it.

Slamming the high court, a bench comprising Justice AM Sapre and Justice R Banumathi observed that in such a scenario, the high court could have only remanded the case and leave the trial court to pass appropriate orders on the application(s) in exercise of its judicial discretion.

In the instant case, the high court allowed the writ petition preferred by tenant, quashed all the four orders impugned in the writ petition and remanded the case to the trial court for fresh trial with the certain directions.


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

The appellant(landlord) filed one eviction petition before the Rent Controlling Court (Trial Court) against his 8 tenants, including the respondent. By order dated 13.08.2007, the Court placed the 8 respondents (tenants) ex parte because on that day none of the respondents appeared. The Trial Court then recorded evidence of the appellant 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. When the tenants approached the appellate authority, it allowed the appeal, set aside the order and remanded the eviction petition to the Trial Court for its fresh disposal on merits.

In the second round the Appellant failed to appear in many posting and the trial court dismissed the eviction petition. Though the appellant filed the application for restoration of petition, it was also dismissed for default. Later the petition was restored after the Appellant got an order for restoration from the appellate authority.

In the third round, the tenants failed to appear in multiple postings and the trial court passed an eviction order and decreed the appellant's eviction petition. Since the tenants failed to vacate the premises, the appellant filed an execution petition. 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 accordingly took delivery of the suit shops with the police aid by breaking open the locks put on the suit shops. The trial Court thus closed the execution proceedings.

Four Applications filed by Respondent

Seven out of eight tenants did not pursue the matter further. But the present respondent filed one application in decided execution petition and made a prayer therein that the directing delivery of possession should be set aside. He also filed one application in main case and prayed therein that the eviction order 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. Another application for condonation of delay of 180 days in filing the application for setting aside the order was also filed. Another application was filed by seeking therein a prayer for redelivery of the shop to him.

Application U/S227 before High Court

During pendency of the above 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. The High Court allowed the writ petition  quashed all the four orders and remanded the case to the Trial Court for fresh trial

High Court Order

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.

Supreme Court’s observations

After hearing Raghenth Basant, counsel for the appellant and Mr. Venkita Subramoniam T.R,Counsel for the respondent the Supreme Court set aside the High Court Judgment.

The bench observed that 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.

The Court held 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 filed by the respondent.

Supreme Court observed that 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.

“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 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”.

Taking into account of the fact that the litigation was pending for 11 years, the court also observed that eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction 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, the bench observed.

Object of Rent Laws is to ensure Speedy Disposal Of Eviction Cases

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,” the bench added.

The court also slammed the tenant, observing that he was contesting the eviction proceedings as a “professional litigant” and was successful to a large extent in keeping the proceedings pending for 10 years, which enabled him to enjoy possession of the suit shop to the detriment of the landlord’s interest. The court also imposed a cost of Rs. 25,000 on the tenant.

Read the Judgment Here

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