Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, AGAINST THE ORDER DATED 03/08/2021 IN I.A.NO.6 OF 2021 IN IN R.C.P.NO.8 OF 2018 OF RENT CONTROL COURT (PRINCIPAL MUNSIFF), ERNAKULAM PETITIONER/PETITIONER IN I.A.NO.6 OF 2021/RESPONDENT IN R.C.P.NO.8 OF 2018: SINAJ, AGED 45 YEARS S/O.P.M.EASAKHAN, NEW MOBILE WORLD, XL/7751, PADMA JUNCTION, M.G.ROAD, KOCHI-682 035. BY ADVS. PRAVEEN K. JOY E.S.SANEEJ RESPONDENTS/RESPONDENTS IN I.A.NO.6 OF 2021/PETITIONER IN R.C.P.NO.8 OF 2018: 1 PARVATHI PRABHAKARAN,(DIED)
AGED 86 YEARS W/O.PRABHAKARAN, RESIDING AT PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.SAJITH BABU.P., S/O.LATE P.S.BABU, AGED 37, PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM-682 018. -2- 2 SAILAJA BABU, AGED 62 YEARS W/O.LATE BABU, RESIDING AT PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.SAJITH BABU.P., S/O.LATE P.S.BABU, AGED 37, PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM-682 018. 3 MANOJ KUMAR.P.D., AGED 45 YEARS S/O.DEVADAS, RESIDING AT PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.SAJITH BABU.P., S/O.LATE P.S.BABU, AGED 37, PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM-682 018. 4 K.P.SWARNALATHA, AGED 70 YEARS W/O.LATE RAJMOHAN, RESIDING AT PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.SAJITH BABU.P., S/O.LATE P.S.BABU, AGED 37, PANAKKAL HOUSE, OLD RAILWAY STATION ROAD, ERNAKULAM-682 018. 5 A.K.BALAKRISHNAN, AGED 73 YEARS KOCHANIMOOTTIL HOUSE, PADAMUGAL, KAKKANAD-682 021. 6 SUBHA BALAKRISHNAN, AGED 66 YEARS W/O.A.K.BALAKRISHNAN, KOCHANIMOOTTIL HOUSE, PADAMUGAL, KAKKANAD-682 021. R1 TO R6 BY ADV. SRI.K.R.VINOD
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
JUDGMENT
Anil K. Narendran, J.
The petitioner is the respondent in R.C.P.No.8 of 2018 on the file of the Rent Control Court (Munsiff), Ernakulam, a petition filed by the respondents herein-landlords under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition
schedule shop room bearing Door No.XL/7751 (New No.XL/9348) having an area of about 200 sq.feet, in the ground floor of a two storied commercial building facing M.G.Road at Ernakulam, where the tenant is conducting sale of mobiles and accessories in the name and style “New Mobile World”. The bonafide need projected in the Rent Control Petition is that of the 5th respondent, who is the son-in-law of the 1st respondent, who wants to start a DTP and Photostat shop in the petition schedule shop room. The 5 th respondent is a retired PWD employee, who wants to do some business in
order to meet the financial liability faced by him. In paragraph
3 of the Rent Control Petition, it is stated that the landlords have no suitable building or space in the ground floor of the -4-
building owned by them to accommodate the 5 th respondent, except the petition schedule shop room. Even though there is space available in the same building complex, the same is having more area than the petition schedule shop room. For conducting the proposed business of the 5 th respondent, a small area not below 200 sq.feet alone is needed and the same can be accomplished by evicting the tenant from the petition schedule shop room. The 5 th respondent do not require a large extent of area for the proposed business. The
facts being so, without obtaining vacant possession of the
petition schedule shop room, the 5 th respondent cannot start the proposed business.
2. In R.C.P.No.8 of 2018, the tenant entered
appearance and filed Ext.P2 objection, raising various contentions. In paragraph 11 of the objection, the tenant contended that the allegation that no building or space is available to the landlords is false. The landlords admit that there is space available in the same building complex and hence the RCP is to be dismissed and there is no bona fides. The further allegation that there is no need for large extent of
-5- area is a fanciful allegation, since they can reduce/cut space and take space from large extent for their purpose.
3. The tenant originally filed I.A.No.3 of 2020, an
application under Order XXVI Rule 9, read with Section 151 of the Code of Civil Procedure, 1908 seeking an order to appoint an Advocate Commissioner to inspect and report about the lie and nature of the petition schedule building; to report about the area and commercial value of the rented premise; to report about the vacant areas available in the petition schedule building for the proposed business of the 5 th respondent herein; to prepare a rough sketch of the rented premises; to report about other vacant rooms available in nearby areas; and to report about other aspects as pointed out by the tenant or his counsel.
4. The Advocate Commissioner conducted inspection and submitted Ext.P4 report, along with sketch. Thereafter, the tenant filed another interlocutory application, i.e., I.A.No.6
of 2021, seeking an order to appoint an Advocate Commissioner to inspect the building again and to compare and report about the lie and nature of the petition schedule -6-
building with the earlier commission report in I.A.No.3 of 2020; to report about the area and commercial value of the rented premise and present condition of the building; to report about the vacant areas available in the petition schedule building for the business of the 5 th respondent herein; to report about the new establishments started in the petition schedule building; to compare and report about the vacant areas available in the petition schedule building with earlier commission report in I.A.No.3 of 2020; to report about other vacant areas available in nearby areas and in the petition schedule building; and to report about other aspects as pointed out by the tenant or his counsel.
5. The tenants filed Ext.P6 counter affidavit in
I.A.No.6 of 2021 opposing the relief sought for, wherein it is contended that the said interlocutory application is nothing but an abuse of process of court and that, such an application is not legally maintainable.
6. After considering the rival contentions, the Rent Control Court by Ext.P7 order dated 03.08.2021 rejected that application. The reasoning of the Rent Control Court in -7- paragraphs 6 and 7 of the said order read thus;
6. The above rent control petition was instituted by
the respondents herein under Section 11(3) alleging bonafide need of the 5th respondent to start a DTP and photostat shop in the petition schedule building. The petition schedule building is the ground floor of a two storied building having an area of about 200 sq.ft. In the rent control petition, the respondents had specifically pleaded that they require only a small area of not below 200 sq.ft. for the proposed business of the 5th respondent. This court has already allowed the commission application filed by the petitioner as IA commissioner in his report has reported about the lie and nature, area and commercial value, and vacant areas available in the petition schedule building. In the said petition, the advocate commissioner was directed to report about the vacant area available in the petition schedule building for business of the respondent. It was reported that there was six shutters on the ground floor and two of the shutters were open and it was double the size of the petition schedule building. The petitioner in the present application has submitted that after the visit of the advocate commissioner, two other tenants started their establishments in the petition schedule building and it is not lying vacant.
7. It is relevant to note that the question that falls for
-8- adjudication of this court in this case is whether the respondents are in bonafide need of the petition schedule building and whether the petitioner is entitled to the benefit of second proviso of Section 11(3). The points sought to be ascertained by the petitioner is not at all required for elucidating the matter in dispute between the parties. It is pertinent to note that the point sought to be ascertained in the petition are already reported by the advocate commissioner in IA 3/2020. Therefore I am of the view that no circumstances exists in this petition that warrants the issuance of a second commission. It is also worth mentioning that petitioner has come up this application when the case was listed for trial. The petition is devoid of any merits and can be only seen as an attempt to protract the trial. Hence the petition is dismissed. No order as to costs.”
7. Challenging Ext.P7 order of the Rent Control Court, the petitioner-tenant has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
8. On 07.09.2021, when this original petition came up for admission, respondents 2 to 6 entered appearance through counsel and the counsel sought time to file vakalath.
9. Heard the learned counsel for the petitioner and -9- also the learned counsel for respondents 2 to 6.
10. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P7 order dated 03.08.2021 of the Rent Control Court in
I.A.No.6 of 2021 in R.C.P.No.8 of 2018, whereby the application filed by the tenant seeking an order to depute an Advocate Commissioner to inspect the petition schedule building and to submit a report on the aspects referred to therein, stands rejected for the reasons stated therein.
11. The learned counsel for the petitioner would submit
that the subsequent events pointed out in the affidavit filed in support of I.A.No.6 of 2021 necessitated filing of the second application to depute Advocate Commissioner for ascertaining the aspects stated therein. Since those aspects have material bearing on the defence raised in the counter statement filed by the tenant, the Rent Control Court ought to have allowed that application.
12. Per contra, the learned counsel for respondents 2 to 6 would contend that the second application filed by the petitioner-tenant to depute Advocate Commissioner to -10-
ascertain the aspects stated therein, is nothing but an abuse of process of court and the intention of the tenant is only to protract the matter. The Rent Control Petition is of the year 2018 and as can be seen from case history, at each and every time when the matter is sought to be included in the list for pre-trial steps or for evidence, the tenant used to file interlocutory applications.
13. The petitioner had earlier filed I.A.No.3 of 2020
seeking an order to appoint an Advocate Commissioner to inspect the building in question and to submit a report about various aspects pointed out in that application. The Advocate Commissioner conducted inspection and submitted Ext.P4 report, along with sketch. It is thereafter that the petitioner filed I.A.No.6 of 2021 seeking an order to appoint Advocate Commissioner to inspect the building question again and to submit a report about various aspects pointed out in that application, after comparing Ext.P4 report. As we have already noticed, the specific stand taken by the landlords in the Rent Control Petition is that, in order to meet the bonafide requirement of the 5th respondent herein, they require only
-11-
shop room having an area of 200 sq.feet. In the Rent Control Petition the landlords have admitted that other rooms in the ground floor of the building are lying vacant, which are having larger area. As rightly noticed by the Rent Control Court in Ext.P7 order dated 03.08.2021, the points sought to be ascertained by filing I.A.No.6 of 2021 by deputing an Advocate Commissioner are not at all required for deciding the issue involved in R.C.P.No.8 of 2018, i.e., bona fide need of the 5th respondent herein under Section 11(3) of the Act to start a DTP and Photostat shop in the petition schedule shop room. The petitioner has filed that interlocutory application when R.C.P.No.8 of 2018 was listed for trial. The intention of the petitioner in filing such an application was only to protract the trial. Therefore, the Rent Control Court cannot be found fault with in rejecting the aforesaid interlocutory application.
14. 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 -12-
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.
15. 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
-13- remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
16. 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 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,
-14-
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.
17. 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 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
-15- and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.
18. 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 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.
19. 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 -16-
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 natural justice have been flouted.
20. In the instant case, it cannot be said that while rejecting I.A.No.6 of 2021, the Rent Control Court committed a manifest error or that the reasoning of that court in Ext.P7
order is either palpably perverse or patently unreasonable or
that its decision is in direct conflict with settled principles of -17- law. In the above circumstances, we find no reason to interfere with Ext.P7 order of the Rent Control Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
In the result, this original petition fails and the same is accordingly dismissed. No order as to costs. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- K. BABU, JUDGE AV -18- APPENDIX OF OP (RC) 87/2021 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE RCP NO.8/2018 BEFORE RENT CONTROL COURT, ERNAKULAM DATED 03.01.2018. Exhibit P2 THE TRUE COPY OF THE OBJECTION IN RCP NO.8/2018 FILED BY THE PETITIONER. Exhibit P3 THE TRUE COPY OF THE IA NO.3/2020 IN RCP NO.8/18 BEFORE RENT CONTROL COURT, ERNAKULAM. Exhibit P4 THE TRUE COPY OF THE COMMISSION REPORT DATED 21.12.2020 IN RCP NO.8/2018 BEFORE RENT CONTROL COURT, ERNAKULAM. Exhibit P5 THE TRUE COPY OF THE IA NO.6/2021 IN RCP NO.8/2018 DATED 20.07.2021 BEFORE RENT CONTROL COURT, ERNAKULAM. Exhibit P6 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN IA NO.6/2021 IN RCP NO.8/2018 BEFORE RENT CONTROL COURT, ERNAKULAM. Exhibit P7 THE TRUE COPY OF THE ORDER IN IA NO.6/2021 IN RCP NO.8/2018 DATED 03.08.2021 OF RENT CONTROL COURT, ERNAKULAM.