Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 OP (RC) NO. 10 OF 2017 AGAINST THE ORDERS IN R.C.A. 154/2011 OF IV ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, THRISSUR PETITIONERS: *1 LAWRENCE *[DIED] AGED 57 YEARS, S/O.EDAKALATHUR OUSEPH, EDAKALTHUR VILLAGE DESOM,THRISSUR TALUK. *ADDITIONAL PETITIONERS (LEGAL HEIRS) IMPLEADED.
**ADDL.P2 THANKAMMA LAWRENCE, AGED 54 YEARS, W/O. LATE LAWRENCE, EDAKKALATHUR HOUSE, MUNDOOR P.O., THRISSUR. **ADDL.P3 LEMIN LAWRENCE, AGED 29 YEARS, S/O.LATE LAWRENCE, EDAKKALATHUR HOUSE, MUNDOOR P.O., THRISSUR. **ADDL.P4 LENIL LAWRENCE, AGED 26 YEARS, S/O. LATE LAWRENCE, EDAKKALATHUR HOUSE, MUNDOOR P.O., THRISSUR. **ADDL.P5 LERIN LAWRENCE, AGED 24 YEARS,
D/O.LATE LAWRENCE, EDAKKALATHUR HOUSE, MUNDOOR P.O., THRISSUR. **ADDITIONAL PETITIONERS 2 TO 5 ARE IMPLEADED VIDE
ORDER DATED 23/11/2018 IN IA.NO.01/2018.
BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS:
1 MANAGING PARTNER, M/S.EDAKULATHUR TRADING COMPANY, GENERAL MERCHANTS AND COMMISSION AGENTS, NEHRU BAZAR, THRISSUR-680 001. -2- 2 JESSY PAVU, AGED 45 YEARS, W/O.LATE PAVU, ANCHERY HOUSE, MISSION QUARTERS, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001. 3 SWETHA PAVU, AGED 23 YEARS, D/O.LATE PAVU, ANCHERY HOUSE, MISSION QUARTERS, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001. 4 RIYA PAVU, (MINOR) AGED 17 YEARS, D/O.LATE PAVU, ANCHERY HOUSE, MISSION QUARTERS, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001, REPRESENTED BY HER MOTHER AND NEXT FRIEND JESSY PAVU, W/O.LATE PAVU, ANCHERY HOUSE, MISSION QUARTERS, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001. BY ADVS. SRI.G.KEERTHIVAS SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.JEEVAN RAJEEV SMT.MARY RESHMA GEORGE SMT.P.M.MAZNA MANSOOR SRI.C.R.SYAMKUMAR SRI.SOORAJ T.ELENJICKAL SMT.SANDHYA R.NAIR SRI.P.R.VENKATESH
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
JUDGMENT
Anil K. Narendran, J.
The petitioner is the 1st respondent-tenant in R.C.P.
No.100 of 2007 on the file of Rent Control Court (Munsiff), Thrissur filed by the husband of the 2 nd respondent herein- landlord, a petition under Sections 11(2)(b), 11(3), 11(4)(i) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building.
2. On receipt of notice, the tenant entered
appearance and filed counter in R.C.P. No.100 of 2007. Exts.A1 to A7 were marked and the landlord was examined as PW1. On the side of the tenant, Exts.B1 to B8 were marked and RWs 1 and 2 were examined. The Advocate Commissioner, who submitted Ext.C1 report was examined as CW1. Exts.X1 and X1(a) series were marked as witness
exhibits. After considering the pleadings and evidence on record, the Rent Control Court granted an order of eviction under Sections 11(2)(b) and 11(8) of the Act, after holding -4- that the need projected under Section 11(3) is bona fide, and the tenant was directed to put the landlord in vacant possession of the petition schedule building. The order of eviction sought for under Section 11(4)(i) of the Act was rejected.
3. Challenging the order of eviction granted by the
Rent Control Court, the tenant filed R.C.A.No.154 of 2011 before the Rent Control Appellate Authority (District Judge), Thrissur invoking the provisions under Section 18(1)(b) of the Act. During the pendency of the above appeal, the landlord died on 03.07.2013. The learned counsel for the landlord filed a statement before the Appellate Authority on 07.08.2013, reporting the death of the landlord. Thereafter the tenant filed I.A.No.4253 of 2013 on 1.10.2013, an application under Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, seeking an order to implead the legal representatives of the landlord. That application ended
in dismissal by Ext.P3 order dated 11.06.2014 in I.A.No.4253 of 2013. Consequently by Ext.P4 order dated 11.06.2014, the Appellate Authority dismissed R.C.A.No.154 of 2011 as abated. -5-
4. After the dismissal of R.C.A.No.154 of 2011, the
tenant filed I.A.No.2440 of 2014, an application under Order
XLVII of Rule 1 of Code of Civil Procedure, 1908, seeking an
order to review Ext.P4 order in R.C.A.No.154 of 2011;
I.A.No.2441 of 2014 seeking review of Ext.P3 order in I.A.No.4253 of 2013; I.A.No.2443 of 2014, an application to condone the delay of 59 days in filing I.A.No.4253 of 2013 in R.C.A.No.154 of 2011; I.A.No.4489 of 2014 an application to
set aside abatement; and I.A.No.4125 of 2014, an application to condone the delay of 390 days in filing I.A.No.4489 of 2014. Those applications were dismissed by Ext.P5 order dated 05.07.2016 of the Appellate Authority. Challenging the aforesaid order of the Appellate Authority, the tenant has filed this original petition under Article 227 of the Constitution of India, seeking an order to quash Exts.P3 to P5 orders.
5. On 17.01.2017, when this original petition came up for admission, this Court issued notice on admission to respondents by speed post, returnable within two weeks.
6. Heard the learned counsel for the petitioner and also the learned counsel for the respondents. -6-
7. The issue that arises for consideration in this
original petition is as to whether any interference is warranted on Exts.P3 to P5 orders of the Rent Control Appellate Authority, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
8. Article 227 of the Constitution of India deals with
power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
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9. In Shalini Shyam Shetty v. Rajendra Shankar
Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
10. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the
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power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise
such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
11. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence -9-
under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.
12. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016
(1) KHC 1] a Division Bench of this Court held that, the
law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or
- 10 - the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.
13. In view of the law laid down in the decisions
referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227
can be exercised only in a case where the order or judgment
of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of
- 11 - natural justice have been flouted.
14. In the instant case, the landlord died on
03.07.2013 and the said fact was brought to the notice of the tenant by filing a statement before the Appellate Authority on 07.08.2013, a copy of which was served on the learned counsel for the tenant on 12.08.2013. The tenant filed I.A.No.4253 of 2013 before the Appellate Autority on 01.10.2013, which is an application filed under Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules, seeking an order to implead the legal representatives of the deceased landlord.
15. As per Rule 10, every application for impleading
the legal representative of deceased party to proceedings under the Act shall be preferred within 30 days from the date of death of the person concerned. As per the proviso to Rule 10, where the application for impleadment is filed by legal representatives, who are not in the party array, the Appellate Authority in appropriate cases condone the delay in filing application.
16. In the instant case, admittedly, I.A.No.4253 of 2013 is filed by the tenant beyond the time limit prescribed - 12 -
in Rule 10. That belated application was not supported by an application for condonation of delay. Therefore, that application was rejected by the Appellate Authority by Ext.P3
order dated 11.06.2014. Consequently, by Ext.P4 order
11.06.2014, the Appellate Authority dismissed R.C.A. No.154 of 2011 as abated. The tenant has filed I.A.No.2440 of 2014 and connected interlocutory applications mainly seeking review of Exts.P3 and P4 orders, invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure.
17. In Parsion Devi v. Sumitri Devi [(1997) 8
SCC 715] the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under
Order XLVII, Rule 1 of the Code. In exercise of the
jurisdiction under Order XLVII, Rule 1 of the Code, it is not - 13 - permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.
18. Later, in Lily Thomas v. Union of India
[(2006) 3 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
19. In Anantha Reddy N. v. Anshu Kathuria
[(2013) 15 SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self - evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.
20. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under
Order XLVII, Rule 1 of the Code is very limited and unless
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there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions.
21. Viewed in the light of the law laid down in the
decisions referred to supra, conclusion is irresistible that the reasoning of the Appellate Authority in Ext.P5 order, for not invoking review jurisdiction under Order XLVII Rule 1 of the Code of Civil Procedure, insofar as the Ext.P3 order dated 11.06.2014 in I.A.No.4253 of 2013 in R.C.A.No.154 of 2011 and Ext.P4 judgment dated 11.06.2014 in R.C.A.No.154 of 2011 are concerned, warrants no interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
22. On account of the dismissal of I.A.No.2443 of
2014, filed seeking review of order dated 11.06.2014 in I.A.No.4253 of 2013, the Appellate Authority rightly rejected I.A.Nos.4489 of 2014 and 4125 of 2015, which were filed to - 15 - set aside abatement on account of the death of the landlord and also to condone the delay of 390 days in filing the former application.
In such circumstances, we find no reason to interfere with the aforesaid orders. This original petition fails and the same is accordingly dismissed. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- A. BADHARUDEEN, JUDGE ww - 16 - APPENDIX OF OP (RC) 10/2017 PETITIONERS' EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE FINAL JUDGMENT IN R.C.P.No.100 OF 07 DATED 6.4.2011 ON THE FILE OF THE RENT CONTROL COURT, THRISSUR. EXHIBIT P2 A TRUE COPY OF THE APPEAL MEMORANDUM
IN R.C.A.No.154 OF 2011 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 11.7.2011. EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN I.A No.4253 OF 2013 IN R.C.A. NO.154 OF 2011 DATED 11.6.2014 ON THE FILE OF THE 4TH ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN R.C.A NO.154 OF 2011 DATED 11.6.2014 ON THE FILE OF THE 4TH ADDL. APPELLATE AUTHORITY, THRISSUR.
EXHIBIT P5 A TRUE COPY OF THE COMMON ORDER
PASSED IN I.A.No.2440 OF 2014 AND CONNECTED APPLICATION IN R.C.A No.154 OF 2011 ON THE FILE OF THE 4TH ADDL. APPELLATE AUTHORITY, THRISSUR DATED 5.7.2016.