Abdul Jabbar K.P. v. Mollamakkanakathu Abdu

## **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 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943** **O.P(RC) NO. 101 OF 2021** **AGAINST THE ORDER IN I.A.NO.3 OF 2021 IN R.C.P.NO.3 OF 2020 OF THE RENT CONTROL COURT (MUNSIFF-MAGISTRATE),** **PONNANI, MALAPPURAM** ## **PETITIONER/RESPONDENT:** **ABDUL JABBAR K.P. AGED 55 YEARS S/O.MOIDHUNNI MASTER, KESAVATH PARAMBIL, PONNANI SOUTH, PUTHUPONNANI, MALAPPURAM DISTRICT-679577.** **BY ADV SANIL.E** **RESPONDENT/PETITIONER:** **MOLLAMAKKANAKATHU ABDU, AGED 66 YEARS S/O. IMBICHI HAJI, EZHUVATHURUTHY AMSOM DESOM, PONNANI-679577.** **BY ADVS.T.I.ABDUL SALAM K.R.MONISHA** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- OP (RC) NO. 101 OF 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is the respondent-tenant in R.C.P.No.3 of 2020 on the file of the Rent Control Court (Munsiff-Magistrate), Ponnani, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building, on the ground of arrears of rent and bona fide need. In that Rent Control Petition, the landlord filed I.A.No.2 of 2021, an application under Section 12 of the Act, seeking an order directing the tenant to deposit a sum of Rs.48,300/towards arrears of rent for the period from April 2019 to February 2021. In that application, the tenant has not chosen to file any objection. The Rent Control Court, by Ext.P7 order dated 04.08.2021 in I.A.No.2 of 2021, directed the tenant to pay admitted arrears of rent within four weeks from the date of that order and to continue to pay rent for the subsequent period within two weeks of its falling due, till the disposal of R.C.P.No.3 of 2020. Ext.P7 order was followed by Ext.P8 order -3- OP (RC) NO. 101 OF 2021 dated 29.09.2021 in I.A.No.3 of 2021, which was an application filed by the tenant seeking extension of time to deposit the admitted arrears of rent. In that order, the tenant was granted one more month's time to pay arrears of rent. Thereafter, the petitioner-tenant has filed this original petition under Article 227 of the Constitution of India, invoking the supervisory jurisdiction of this Court, seeking an order to set aside Ext.P8 order dated 29.09.2021 of the Rent Control Court in I.A.No.3 of 2021 in R.C.P.No.3 of 2020. 2. On 08.10.2021, when this original petition came up for admission, this Court noticed that by Ext.P8 order dated 29.09.2021 in I.A.No.3 of 2021 in R.C.P.No.3 of 2020, the Rent Control Court has already granted one month's time to pay the arrears of rent. This Court issued urgent notice on admission by special messenger to the respondent, returnable by 12.10.2021. 3. On 12.10.2021, when this original petition came up for consideration, the respondent-landlord entered appearance through counsel. 4. Heard the learned counsel for the petitioner-tenant -4- OP (RC) NO. 101 OF 2021 and also the learned counsel for the respondent-landlord. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P8 order of the Rent Control Court dated 29.09.2021 in I.A.No.3 of 2021 in R.C.P.No.3 of 2020 invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the A ppellate A uthority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the -5- OP (RC) NO. 101 OF 2021 building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per Section 12(2), the deposit under sub-section (1) shall be made within such time as the c ourt may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on -6- OP (RC) NO. 101 OF 2021 the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 7. Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, to pay the landlord, or deposits with the Appellate Authority, all arrears of rent admitted by the tenant to be due in respect of the -7- OP (RC) NO. 101 OF 2021 building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Appellate Authority. 8. The liability of a tenant under Section 12(1) of the Act, against whom an application for eviction has been made by a landlord under Section 11, or who prefer an appeal under Section 18 of the Act, against any order made by the Rent Control Court on an application made by a landlord under Section 11, is limited to all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and he shall continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 9. The object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order -8- OP (RC) NO. 101 OF 2021 made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 10. Section 12(2) of the Act enjoins a tenant to deposit the admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, has to order payment or deposit of -9- OP (RC) NO. 101 OF 2021 arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sough for in that application. Therefore, even in a case in which the relief sought for in an application filed under Section 12 of the Act is confined to payment or deposit of admitted arrears of rent up to the date of application or up to the date of order to be passed in that application, the Rent Control Court or the Appellate Authority, as the case may be, is statutorily bound to pass an order directing the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit and continue to pay or deposit rent which may subsequently become due, until termination of that proceedings. 11. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, -10- OP (RC) NO. 101 OF 2021 unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 12. In the instant case, in Ext.P6 application filed by the landlord under Section 12 of the Act, the Rent Control Court passed Ext.P7 order dated 04.08.2021, whereby the tenant was required to pay admitted arrears of rent within four weeks from the date of that order and to continue to pay the rent for the subsequent period within two weeks of its falling due, pending disposal of the Rent Control Petition. Ext.P7 order passed by the Rent Control Court, which is not even under challenge in this original petition, is one issued in terms of the statutory mandate of Section 12 of the Act. After Ext.P7 order, the tenant filed I.A.No.3 of 2021 seeking reasonable time for paying the admitted arrears of rent. In that application, the Rent Control Court passed Ext.P8 order granting one month's time. 13. During the course of arguments, the submission made by the learned counsel for the petitioner is that though the tenant attempted to make payment of arrears of rent by -11- OP (RC) NO. 101 OF 2021 way of sending money orders, the landlord refused to accept such payments. If as a matter of fact, the landlord has not accepted the monthly rent tendered by the tenant, he could have approached the Rent Control Court seeking permission to deposit the monthly rent in court. 14. The learned counsel for the respondent-landlord would submit that out of four shop rooms taken on rent by the petitioner-tenant, the dispute is in respect of two shop rooms. While sending the money orders, the tenant is clubbing the rent payable to all the four rooms. It is in such circumstance that the landlord refused to accept the monthly rent. 15. On a query made by this Court, the learned counsel for the petitioner-tenant would submit that, in the petition schedule shop rooms, the tenant is having a tile display unit. 16. When the rate of monthly rent and also period during which the monthly rent is in arrears are not in dispute, it is for the tenant to deposit the admitted arrears of rent before the Rent Control Court in terms of Ext.P7 order dated 04.08.2021. 17. In such circumstances, we find no reason to -12- OP (RC) NO. 101 OF 2021 interfere with Ext.P8 order dated 29.09.2021 in I.A.No.3 of 2021 in R.C.P.No.3 of 2020 of the Rent Control Court, especially when Ext.P7 order is not under challenge in this original petition. 18. 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. 19. In **Shalini Shyam Shetty v. Rajendra Shankar** -13- OP (RC) NO. 101 OF 2021 **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. 20. 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 quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power -14- OP (RC) NO. 101 OF 2021 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. 21. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex -15- OP (RC) NO. 101 OF 2021 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 and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 22. 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 -16- OP (RC) NO. 101 OF 2021 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. 23. 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 -17- OP (RC) NO. 101 OF 2021 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. In the result, this original petition fails and the same is accordingly dismissed. Considering the facts and circumstances of the case, we deem it appropriate to grant the petitioner-tenant one more month's time from this date to deposit the arrears of monthly rent before the Rent Control Court and the tenant shall continue to pay rent for the subsequent period, in terms of Ext.P7 order dated 04.08.2021. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/28/10 -18- OP (RC) NO. 101 OF 2021 ## **APPENDIX OF OP (RC) 101/2021** **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE RELEVANT PAGE OF THE DAILY COLLECTION BOOK.** **Exhibit P2 A TRUE COPY OF THE DEMAND DRAFT DATED 19.12.2019.** **Exhibit P3 A TRUE COPY OF THE RENT CONTROL PETITION.** **Exhibit P4 A TRUE COPY OF THE RECEIPT OF MONEY ORDERS FROM DECEMBER, 2019 TO AUGUST 2021.** **Exhibit P5 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN RCP NO.3/2020.** **Exhibit P6 A TRUE COPY OF THE INTERLOCUTORY APPLICATION FILED BY RESPONDENT IN RCP NO.3/2020.** **Exhibit P7 A TRUE COPY OF THE ORDER DATED 4.8.2021. Exhibit P8 A TRUE COPY OF THE ORDER DATED 29.9.2021.**