Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 OP (RC) NO. 12 OF 2022 AGAINST THE ORDER DATED 17.12.2021 IN I.A.NO.4 OF 2021 IN R.C.P.NO.70 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF), TIRUR PETITIONER: SAIDALI, AGED 58 YEARS, S/O MUHAMMED, CHETTARIMMAL HOUSE, KUTTIPPURAM AMSOM, KOLAKKADU DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-679571. BY ADVS. DEEPA NARAYANAN K.SUJAI SATHIAN ASHA MARIAM MATHEWS MARY LIYA SABU RESPONDENTS:
1 SAINABHA, AGED 69 YEARS, W/O LATE RAYIN HAJI, KOORIPARAMBIL HOUSE, KATTIPPARUTHI AMSOM, VALANCHERY DESOM, TIRUR TALUK, MALAPPURAM DISTRICT-676552. 2 JAMAL AGED 52 YEARS, S/O LATE RAYIN HAJI, KOORIPARAMBIL HOUSE, KATTIPPARUTHI AMSOM, VALANCHERY DESOM, TIRUR TALUK, MALAPPURAM DISTRICT-676552. 3 MUHAMMED SALEEM, AGED 46 YEARS, S/O LATE RAYIN HAJI, KOORIPARAMBIL HOUSE, KATTIPPARUTHI AMSOM, VALANCHERY DESOM, TIRUR TALUK, MALAPPURAM DISTRICT-676552.
4 MUHAMMED SHAJI, AGED 44 YEARS, S/O LATE RAYIN HAJI, KOORIPARAMBIL HOUSE, KATTIPPARUTHI AMSOM, VALANCHERY DESOM, TIRUR TALUK, MALAPPURAM DISTRICT-676552. 5 THWABIR BABU, AGED 36 YEARS, S/O LATE RAYIN HAJI, KOORIPARAMBIL HOUSE, KATTIPPARUTHI AMSOM, VALANCHERY DESOM, TIRUR TALUK, MALAPPURAM DISTRICT-676552. BY ADVS. JAMSHEED HAFIZ K.K.NESNA THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Ajithkumar, J.
The order dated 17.12.2021, Ext.P10, of the Rent Control Court (Munsiff), Tirur is under challenge in this original petition filed under Article 227 of the Constitution of India. The petitioner filed I.A.No.4 of 2021 in R.C.P.No.70 of 2015 before the Rent Control Court with a prayer that the commissioner shall be directed to ascertain the identity of the petition schedule shop room with the help of an expert. That application was dismissed as per Ext.P10 order.
2. The rent control petition was filed by the deceased
1st respondent-landlord seeking eviction of the petitioner- tenant from the petition schedule shop room under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Ext.P1 is a copy of that petition. The schedule to the petition describes the tenanted premises as two rooms having Panchayat Nos.KP 1/891B and KP 1/891C. The petitioner filed Ext.P2 objection in the rent control petition. Exts.P3, P4 and P7 are the successive reports of the commissioner, appended with sketches filed in the rent control petition. The petitioner thereafter filed I.A.No.4 of 2021 with a prayer to direct the commissioner, who filed Ext.P7 report, to measure the property with reference to the title deeds and to ascertain the identity of the petition schedule shop room with the help of an expert. Ext.P8 is that application. Ext.P9 is the objection filed by the respondent-landlord.
3. The Rent Control Court after hearing both sides dismissed Ext.P8 application as per Ext.P10 order.
4. Heard the learned counsel for the petitioner and also the learned counsel for the respondents.
5. The Rent Control Court stated in Ext.P10 that the
Appellate Authority remanded the rent control petition for fresh disposal as per order in R.C.A.No.16 of 2020 dated 08.10.2021, with a direction to dispose of the same within three months from the date of appearance of the parties before that court. It was during that period Ext.P8 application was filed.
6. In Ext.P2, the objection filed by the petitioner in
the rent control petition, he has categorically admitted the landlord-tenant relationship. It is his specific contention that he availed the petition schedule rooms with particular door numbers on rent and that he has been making payment of rent without any default. It shows that he has no doubt about identity of the tenanted building, which alone is relevant in an eviction petition. Now, he has come forward with a contention that the identity of the petition schedule rooms is in dispute and, therefore, the commissioner has to be deputed for ascertaining the identity, after measuring out the land based on the title deed.
7. On a perusal of Exts.P3, P4 and P7, it can be seen
that the petition schedule rooms were inspected by the respective commissioners in the presence of the petitioner and his counsel. No dispute with respect to the identity was seen raised by the petitioner before any of the commissioners. Now the identity of the rooms is disputed pointing out that going by the description in the respondents' title deed, the rooms abut the National Highway, whereas the rooms inspected by the commissioners are behind the front row rooms. In the title deed, Ext.P5, the southern boundary is shown as National Highway. It is matter of prudence that the boundaries of the building can only be shown in the title deed and not of each room. The petition schedule shop room is part of a multi-storied building and situated behind the front row of rooms. The same is the categoric contention raised by the petitioner in his objection, Ext.P2 as well. In paragraph No.12 of Ext.P2, it has been stated that the petition schedule shop rooms do not have direct view to the public road and by passing through a passage only one can reach the petition schedule shop rooms. The description of the petition schedule shop rooms in Exts.P3 and P7 reports will also reveal the same facts. The rooms in question are scheduled to be rent control petition along with door numbers. In Ext.P2 objection, the petitioner does not dispute that description also. From the above, it is quite clear that there has not been any dispute with regard to the identity of the petition schedule shop rooms.
8. The petitioner having admitted in his pleadings the
identity of petition schedule shop rooms, has now come forward with Ext.P8. Obviously, the motive behind it is nothing, but to protract the proceedings. Ext.P8 commission application and also this original petition are therefore abuse of the process of court. There is absolutely no vice to Ext.P10 order. Therefore, we hold that this original petition is liable only to be dismissed. The petition is accordingly dismissed with costs. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr APPENDIX OF OP (RC) 12/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION FILED BY THE LANDLORD/ RESPONDENT IN RENT CONTROL COURT, TIRUR, RCP NO.70 OF 2015, DATED 03.08.2015. Exhibit P2 TRUE COPY OF THE COUNTER FILED BY PETITIONER/ TENANT IN RCP NO.70 OF 2015 IN RENT CONTROL COURT, TIRUR, DATED 07.11.2015. Exhibit P3 TRUE COPY OF THE REPORT AND SKETCH
SUBMITTED BY THE ADVOCATE COMMISSIONER IN I A 1835/2016 In RCP NO. 70 OF 2015 IN RENT CONTROL COURT, TIRUR, DATED 14.02.2017. Exhibit P4 TRUE COPY OF THE REPORT AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA 01/2021 IN RCP NO.70 OF 2015 IN RENT CONTROL COURT, TIRUR, DATED 18.11.2021. Exhibit P5 TRUE COPY OF THE TITLE DEED DOCUMENT NO.386/1993 OF SRO, KUTIPPURAM, DATED 16.06.1993. Exhibit P6 TRUE COPY OF THE TITLE DEED DOCUMENT NO.1148/1996 OF SRO, KUTIPPURAM, DATED 15.05.1996. Exhibit P7 TRUE COPY OF THE REPORT AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN I A NO.03/2021, IN RCP NO. 70 OF 2015 IN RENT CONTROL COURT, TITUR DATED 15.12.2021. Exhibit P8 TRUE COPY OF THE I.A.NO.4/2021 FILED BY THE PETITIONER HEREIN, IN RCP NO. 70 OF 2015 IN RENT CONTROL COURT, TIRUR DATED 16.12.2021. Exhibit P9 TRUE COPY OF THE OBJECTION FILED BY THE LANDLORD/ RESPONDENT IN I A NO. CONTROL COURT, TIRUR DATED 17.12.2021. Exhibit P10 TRUE COPY OF THE ORDER OF THE RENT CONTROL COURT ION I A NO.04/2021, IN R C P NO. 70 OF 2015 IN RENT CONTROL COURT, TIRUR DATED 17.12.2021.