Abdul Kabeer v. A.P. Alavi Haji

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 O.P(RC) NO.103 OF 2022** **AGAINST THE ORDER DATED 08.03.2022 IN I.A.No.7 OF 2022 IN R.C.P No.2 OF 2021 OF RENT CONTROL COURT (MUNSIFF), MANJERI** ## **PETITIONER/RESPONDENT IN I.A/RESPONDENT IN R.C.P:** **ABDUL KABEER AGED 51 YEARS S/O.PILAKKANDY MUHAMMED, PILAKKANDY HOUSE, VETTUPPARA AMSOM AND POST, CHEEKODE DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT - 673 645 BY ADVS. P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER P.B.KRISHNAN ABRAHAM BABU KALLIVAYALIL MUNEER AHMED** ## **RESPONDENT/PETITIONER IN I.A/PETITIONER IN R.C.P:** **A.P.ALAVI HAJI AGED 67 YEARS S/O.MUHAMMED HAJI, AGED 67, ATTASSERI PILATHOTTATHIL HOUSE, VILAYIL AMSOM, PARAPPOOR DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT - 673 645. BY ADV K.RAKESH** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(RC) No.103 of 2022 ## **J U D G M E N T** ## Anil K. Narendran, J The petitioner is the respondent-tenant in R.C.P.No.2 of 2021 on the file of the Rent Control Court (Munsiff), Manjeri a petition filed by the respondent herein-landlord under Section 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. Ext.P1 is a copy of the statutory notice dated 06.11.2020 and Ext.P2 is a copy of the Rent Control Petition. On receipt of notice in the R.C.P, the tenant entered appearance and filed Ext.P3 counter statement dated 22.12.2021. The landlord filed O.P.(RC) No.121 of 2021 before this Court seeking time bound disposal of R.C.P.No.2 of 2021, which was disposed of by Ext.P4 judgment dated 03.01.2022, whereby the Rent Control Court was directed to dispose of R.C.P.No.2 of 2021, as early as possible, at any rate, within a period of four months from the date of production of a certified coy of the judgment. 2. The tenant filed I.A.No.9 of 2022 in R.C.P.No.2 of 2021 (Ext.P5) seeking an order to call upon the landlord to produce the passport of his son Mr.Jamsheed, who allegedly lost his job in Gulf 3 O.P.(RC) No.103 of 2022 and returned to India. In Ext.P5 interlocutory application, the landlord filed Ext.P6 counter dated 10.02.2022. Thereafter, the landlord filed Ext.P7 interlocutory application, i.e, I.A.No.7 of 2022 in R.C.P.No.2 of 2021 seeking an order to amend the Rent Control Petition, by contending that the bonafide need is also for his second son, Mansoor. The said interlocutory application is one filed on 08.02.2022. In that interlocutory application, the tenant filed Ext.P8 counter, by contending that by way of the proposed amendment, the landlord wants to introduce altogether a new cause of action. 3. The Rent Control Court, by Ext.P9 order dated 08.03.2022, allowed I.A.No.7 of 2022 in R.C.P.No.2 of 2022. The said order of the Rent Control Court reads thus: “The petitioner seeks to amend the R.C.P by incorporating the 2[nd] son of petitioner in the party array and that he has no other avocation. According to the petitioner, the same was only an omission and in I.A.5 of 2022, he had stated that Mansoor is having no avocation. On the other hand, according to the respondent, the proposed amendment shall change the nature of the petition and cannot be allowed. He relied upon the documents of Apex Court in **Rajkumar Gurwara v.** 4 O.P.(RC) No.103 of 2022 ## **S.K.Sarawagi and Co. Pvt. Ltd** . **[AIR 2008 SC 2303]** in which it is held that when the amendment would introduce new cause of action, it shall prejudice the other side. Heard. On going through the petition I am satisfied that I.A is to be allowed for just decision of the matter. Hence I.A. Closed.” (underline supplied) 4. On 23.05.2022, when this original petition came up for admission, the learned counsel for the petitioner was directed to serve a copy of the same to the learned counsel who appeared for the respondent-tenant in O.P.(RC) No.121 of 2021. 5. On 30.05.2022, the petitioner was directed to make available, through his counsel, the partnership deed referred to in paragraph 2 of the affidavit filed in support of I.A.No.9 of 2022 in R.C.P.No.2 of 2022, for the perusal of this Court. 6. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 7. The learned counsel for the respondent-landlord has made available for the perusal of this Court a copy of the partnership deed dated 05.10.2020, which has already been produced before the Rent Control Court. 5 O.P.(RC) No.103 of 2022 8. The learned counsel for the petitioner-tenant would point out that, after the impugned order dated 08.03.2022 in I.A.No.7 of 2022 in R.C.P.No.2 of 2021, the Rent Control Court allowed I.A.No.5 of 2022 filed by the landlord under Section 12 of the Act. In the said interlocutory application, the Rent Control Court passed an order dated 17.02.2022, under Section 12(1) of the Act. The said order was followed by an order dated 19.05.2022, under Section 12(3) of the Act, whereby the proceedings in R.C.P.No.2 of 2021 stands stopped and the tenant is directed to give vacant possession of the petition schedule building to the landlord. The learned counsel would submit that, the said order of the Rent Control Court is already under challenge in an appeal filed before the Rent Control Appellate Authority (Principal District Judge), Manjeri, under Section 18(1)(b) of the Act, and the order of stay granted by the Appellate Authority is in force till 14.07.2022. 9. The issue that requires consideration in this original petition is as to whether the impugned order dated 08.03.2022 of the Rent Control Court in I.A.No.7 of 2022 in R.C.P.No.2 of 2021 can be sustained in law. As already noticed hereinbefore, the said 6 O.P.(RC) No.103 of 2022 order of the Rent Control Court is a cryptic order without any reasoning. It only says that the Court is satisfied that the interlocutory application is to be allowed for a just decision in the matter. ## 10. In **Woolcombers of India Ltd. v. Woolcombers** **Workers Union [(1974) 3 SCC 318]** the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947, held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. Firstly, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Secondly, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to 7 O.P.(RC) No.103 of 2022 be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Thirdly, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the court. The court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 11. In **English v. Emery Reimbold and Strick Ltd. [(2002) 1 WLR 2409]** the Court of Appeal held that, a judicial decision which affected the substantive rights of the parties should be reasoned, although some judicial decisions, e.g. interlocutory case management decisions, did not require reasons; that, while a judge was not obliged to deal with every argument or identify or explain every factor which weighed with him, the issues the resolution of which were vital to his conclusion should be identified and the manner in which he 8 O.P.(RC) No.103 of 2022 resolved them briefly but clearly explained, so that the judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision. 12. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. 13. In **Shukla and Brothers** the Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons 9 O.P.(RC) No.103 of 2022 for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P9 order of the Rent Control Court, which does not disclose the reasons, cannot be sustained in law. 15. 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 10 O.P.(RC) No.103 of 2022 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. 16. 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 11 O.P.(RC) No.103 of 2022 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. 17. 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 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. 18. In **K.V.S. Ram v. Bangalore Metropolitan Transport** 12 O.P.(RC) No.103 of 2022 **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. 19. 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. 20. In view of the law laid down in the decisions referred to 13 O.P.(RC) No.103 of 2022 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 natural justice have been flouted. 21. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P9 order warrants interference, in exercise of the supervisory jurisdiction of this Court, under Article 227 of the Constitution of India. 14 O.P.(RC) No.103 of 2022 22. In result, this original petition is allowed by setting aside Ext.P9 order dated 08.03.2022 of the Rent Control Court (Munsiff) in I.A.No.7 of 2022 in R.C.P.No.2 of 2022, with a direction to the Rent Control Court to consider that interlocutory application and pass a reasoned order. The above direction will be subject to the outcome of the appeal filed by the tenant against the order passed by the Rent Control Court under Section 12(3) of the of the Act, which is now pending consideration before the Rent Control Court Appellate Authority, Manjeri. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV 15 O.P.(RC) No.103 of 2022 ## **APPENDIX OF OP (RC) 103/2022** |**PETITIONER'S**|**EXHIBITS**| |---|---| |**Exhibit P1**|**TRUE COPY OF THE LAWYER NOTICE ISSUED ON**| ||**BEHALF OF THE LANDLORD, DATED 06-11-2020**| |**Exhibit P2**|**TRUE COPY OF R.C.P.NO.2 OF 2021 ON THE**| ||**FILE OF THE RENT CONTROL COURT (MUNSIFF),**| ||**MANJERI, DATED NIL-12-2020**| |**Exhibit P3**|**TRUE COPY OF THE COUNTER STATEMENT IN**| ||**R.C.P.NO.2 OF 2021 ON THE FILE OF THE**| ||**RENT CONTROL COURT (MUNSIFF), MANJERI,**| ||**DATED 22-12-2021**| |**Exhibit P4**|**TRUE COPY OF THE JUDGMENT IN O.P.(RC)**| ||**NO.121 OF 2021 ON THE FILE OF THIS**| ||**HON'BLE COURT, DATED 03-01-2022**| |**Exhibit P5**|**TRUE COPY OF I.A.NO.9 OF 2022 IN**| ||**R.C.P.NO.2 OF 2021 ON THE FILE OF THE**| ||**RENT CONTROL COURT (MUNSIFF), MANJERI,**| ||**DATED 6-02-2022**| |**Exhibit6**|**TRUE COPY OF THE COUNTER IN I.A.NO.9 OF**| ||**2022 R.C.P.NO.2 OF 2021 ON THE FILE OF**| ||**THE RENT CONTROL COURT (MUNSIFF),**| ||**MANJERI, DATED 10-02-2022**| |**Exhibit P7**|**TRUE COPY OF I.A.NO.7 OF 2022 IN**| ||**R.C.P.NO.2 OF 2021 ON THE FILE OF THE**| ||**RENT CONTROL COURT (MUNSIFF), MANJERI,**| ||**DATED 8-02-2022**| |**Exhibit P8**|**TRUE COPY OF THE COUNTER IN I.A.NO.7 OF**| ||**2022 IN R.C.P.NO.2 OF 2021 ON THE FILE OF**| ||**THE RENT CONTROL COURT (MUNSIFF),**| ||**MANJERI, DATED 17-02-2022**| |**Exhibit P9**|**TRUE COPY OF THE ORDER IN I.A.NO.7 OF**| ||**2022 IN R.C.P.NO.2 OF 2021 ON THE FILE OF**| ||**THE RENT CONTROL COURT (MUNSIFF),**| ||**MANJERI, DATED 08-03-2022**| |**Exhibit P10**|**TRUE COPY OF THE ADDL. COUNTER STATEMENT**| ||**IN R.C.P.NO.2 OF 2021 ON THE FILE OF THE**| ||**RENT CONTROL COURT (MUNSIFF), MANJERI,**| ||**DATED 17-03-2022**|