Abdul Nazar v. Iyyathumma and others

“CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937 OP (RC).No. 133 of 2015 (O) ---------------------------AGAINST THE ORDER IN I.A.NO.2153/2015 IN RCP.NO.62/2013 OF RENT CONTROL COURT, TIRUR DATED 4.9.2015 PETITIONER/TENANT: ----------------- ABDUL NAZAR, AGED 48 YEARS, S/O.KEEZHEPPATTU MUHAMMED @ BAVA HAJI, THRIKANDIYOOR AMSOM ANNARA DESOM, TIRUR P O PIN 676101, TIRUR TALUK, MALAPPURAM DISTRICT BY ADV. SRI.JAMSHEED HAFIZ RESPONDENTS/LANDLORD & TENANTS: ------------------------------- 1. IYYATHUMMA, W/O.YAHU, PARAPPURATH ILLATH PARAMBIL HOUSE, TIRUR P O PIN 676101, THRIKKANDIYOOR AMSOM, MUTHOOR DESOM TIRUR TALUK, MALAPPURAM DISTRICT 2. KADER S/O.KEEZHEPPATTU MUHAMMED @ BAVA HAJI THRIKKANDIYOOR AMSOM, ANNARA DESOM, ANNARA (PO), TIRUR TALUK MALAPPURAM DISTRICT-676104 3. RAZIYA W/O.LATE KEEZHEPPATTU AHAMMED 4. RASEENA D/O.LATE KEEZHEPPATTU AHAMMED 5. HASEENA D/O.LATE KEEZHEPPATU AHAMMED 6. MUHIYUDHEEN HARIS S/O.LATE KEEZHEPPATTU AHAMMED RESPONDENTS 3 TO 6 ARE R/A.THATTAN PADI NEAR NEW CHEMBRA JEWELLERY, CHEMBRA P O, 676107 TIRUR TALUK, MALAPPURAM DISTRICT R1 BY ADV. SMT.N.DEEPA THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 25-012016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP (RC).No. 133 of 2015 (O) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS: --------------------- EXHIBIT P1:-A TRUE COPY OF THE RENT CONTROL PETITION IN RCP 62/2013 BEFORE THE RENT CONTROL COURT TIRUR DTD 22/11/2013 EXHIBIT P2:-A TRUE COPY OF THE COMMISSIONERS REPORT IN RCP 62/2013 BEFORE THE RENT CONTROL COURT TIRUR DTD 18/12/2013. EXHIBIT P3:-A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN RCP 62/2013 BEFORE THE RENT CONTROL COURT TIRUR, DTD 11/11/2014. EXHIBIT P4:-A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER FOR REMITTING THE REPORT OF THE COMMISSIONER AS IA 2153/2015 IN RCP 62/2013 BEFORE THE RENT CONTROL COURT,TIRUR DTD 7/8/2015. EXHIBIT P5:-A TRUE COPY OF THE COUNTER FILED BY THE IST RESPONDENT IN IA 2153/2015 IN RCP 62/2013 BEFORE THE RENT CONTROL COURT TIRUR DTD 11/8/2015. EXHIBIT P6:-A TRUE COPY OF THE ORDER DTD 4/9/2015 IN IA 2153/2015 IN RCP 62/2013 BEFORE THE RENT CONTROL COURT, TIRUR RESPONDENTS' EXHIBITS: NIL ---------------------- /TRUE COPY/ P.S TO JUDGE cl ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. O.P.(R.C).No.133 of 2015 ....................................................... Dated this the 25[th] day of January, 2016. **==> picture [33 x 10] intentionally omitted <==** ## **JUDGMENT** ## **K. Ramakrishnan, J:** This is a petition filed by one of the respondents in R.C.P.No.62 of 2013 on the file of the Rent Control Court, Tirur challenging Ext.P6 order passed by the Rent Controller under Article 227 of the Constitution of India. 2. It is alleged in the petition that the first respondent herein filed Ext.P1 Rent Control Petition as R.C.P.No.62 of 2013 for eviction of the respondents in that petition from the petition schedule building on the ground of arrears of rent, bonafide need and subsequent acquisition of building by the tenants under sections 11 (2), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). 3. In order to prove the case of the landlady that the tenants have acquired another building for the purpose of using the same as godown, for which the petition schedule building was taken, she had taken out an ex parte commission and the Commissioner filed Ext.P2 ex parte report showing the things noted by the Commissioner at the time of inspection. Earlier the petition was decided ex parte and thereafter on the basis of the application filed by the tenants, the ex 2 O.P.(R.C).No.133 of 2015 parte order of eviction was set aside and it was restored to file and it is thereafter that the petitioner herein filed Ext.P4 application as I.A.No.2153 of2015 to remit the Commissioner's report raising objections to the Commissioner's report and wanted 11 points to be considered by the Commissioner, which according to the tenant, the Commissioner had omitted to consider at that time. The first respondent filed a detailed counter affidavit stating that the things to be noted by the Commissioner later are not available at the time when the application was filed and those things are not required for proper consideration of the Rent Control Petition and it is only to protract the proceedings that the present petition has been filed and prayed for dismissal of the application. After considering the allegations and objections raised by both sides and hearing the submissions of both counsel, the Rent Controller by the impugned Ext.P6 order dismissed the application stating that there is no necessity to remit the Commissioner's report for reporting the matters stated in the petition. Aggrieved by the same, the present petition has been filed by one of the respondents before the court below under Article 227 of the Constitution of India. 4. Heard Sri. Jamsheed Hafiz, learned counsel appearing for the petitioner and Smt. Deepa, learned counsel appearing for the first respondent. Since other respondents are none other than the 3 O.P.(R.C).No.133 of 2015 respondents who were going along with the petitioner who is the third respondent in the lower court having the same case, notice to them was dispensed with in this proceedings. 5. Learned counsel for the petitioner submitted that being an ex parte commission, the court is not expected to rely on the Commissioner's report and that can be marked only by examining the Commissioner. Further, no notice has been issued to any of the counter petitioners in the court below by the Commissioner before inspecting the petition schedule building and other building said to be in the possession of the respondents in the lower court. He had also submitted that without examining the Commissioner, the Commissioner's report could not be relied on and if any evidence has been collected by the Commissioner against the interest of the petitioner behind his back and when it was pointed out to the court below, it is for the court to remit the Commissioner's report after getting materials on the basis of the objections raised by the respondents and the court below had not done this in this case. So the dismissal of the application was not proper and it is liable to be set aside. He had relied on the decision reported in _**Achuthan v v. Kunhipathumma**_ (1967 KLT 326), _**Moidu v. Lekshmi Amma**_ (1968 KLT 699) in support of his case. 6. On the other hand, learned counsel for the first respondent 4 O.P.(R.C).No.133 of 2015 submitted that a commission was taken out along with the petition for eviction and the respondents were set ex parte and the case was decided ex parte earlier and thereafter on payment of the costs after considering the objection filed by them to set aside the ex parte, the petition to set aside the order filed by the respondents in the lower court was allowed in 2014 and it is thereafter that the present petition to remit the Commissioner's report has been filed. Even after setting ex parte order, it was after the lapse of nine to ten months only that the present petition has been filed and if the petitioner had got any objection to the same, he ought to have filed objections at the earliest time, which was not done in this case. Further, the court below had considered the purpose for which the remission of the Commissioner's report was filed and found that details relating to those things are not necessary for the purpose of disposal of the case. So there is no illegality or impropriety in the order passed by the court below and does not require any interference invoking the power under Article 227 of the Constitution of India. 7. It is an admitted fact that the first respondent herein is the landlady who filed the application for eviction of the petition schedule building from the respondents in the rent control petition, Ext.P1, on the ground of arrears of rent, bonafide need and subsequent acquisition of the building by the tenants under sections 11(2), 11(3) O.P.(R.C).No.133 of 2015 5 and 11(4)(iii) of the Act. It is also an admitted fact that the original first respondent in the rent control proceedings died and his legal heirs were subsequently impleaded in the proceedings. It is also an admitted fact that along with the application for eviction, the landlady had taken out an ex parte commission and the Commissioner has filed Ext.P2 report. On going through the Commissioner's report, it is not clear as to whether the inspection was made after notice to the respondents in the lower court or any attempt was made by the Commissioner to give notice to them before making inspection of the petition schedule building and other building in the possession of the landlady or in the possession of the tenants. It is true that in order to meet the exigencies, the court has got power under Order XXVI Rule 9 of the Code of Civil Procedure to issue ex parte commission to meet the ends of justice and if the court is satisfied with ordering notice to the party, that may affect collection of evidence by the plaintiff or the petitioner and there is a possibility of tampering with the material evidence available in the plaint schedule property or petition schedule property. In the decision reported in _**Achuthan's case**_ (cited supra), a Division Bench of this Court after relying on the decision of the Andhra Pradesh High Court in _**Mahant Narayana Dossjee Varu v. The Board of Trustees**_ (AIR 1959 Andhra Pradesh 64) held that the report of the Commissioner may be relied on after O.P.(R.C).No.133 of 2015 6 examining the Commissioner not as a report forming the basis of an investigation contemplated under Order XXVI Rule 9 but as a corroborating evidence of inspection conducted by the Commissioner. A reading of this decision will go to show that if an ex parte commission is taken out, it will not become part of the record and that cannot be relied on by the court without examining the commissioner under Order XXVI Rule 10(2) of the Code and in order to rely on that report, the Commissioner will have to be examined and the report will have to be marked by giving an opportunity to the respondents in the court below to controvert the findings or materials collected by the Commissioner behind their back. The same view has been reiterated by another Single Bench of this Court in _**Moidu's case**_ (cited supra) relying on the decisions in _**Achuthan's case**_ (cited supra). It has been held that Order XXVI Rule 18 enshrining as it does a wholesome principle of natural justice, is imperative. Under the rule, a direction has to be issued by the Court to the parties before the issue of a commission and this direction should be issued after notice to the parties; at least the commissioner should issue notice to the parties calling upon them to appear in the property on the date he proposes to visit the property for investigation. ## 8. Further in the decision reported in _**Retnamma v. Mehaboob**_ (2013 (2) KLT 648), another Single Bench of this Court has held 7 O.P.(R.C).No.133 of 2015 that if objection has been filed by the parties to the proceedings to the Commissioner's report and if the court has not considered the objections and relied on the Commissioners report, then the procedure adopted by the court below is not proper and on that ground the decision taken by the court below is vitiated. The same view has been reiterated in the decision reported in _**Venugopalan Nair v. Saraswathy Amma**_ (2013 (4) KLT 717), wherein another Single Bench of this court has held that the appellate court is not bound by any report and plan submitted by the Advocate Commissioner because there was no request to set it aside. If the court is satisfied that the report is not helpful to the court to arrive at a just conclusion and if the court feels that further materials will have to be collected, then the appellate court is at liberty to set aside the commissioner's report and then remand the case to the court below even at that belated stage for appointing a Commissioner or same Commissioner to get the necessary details so as to enable the court to arrive at a just conclusion to meet the ends of justice. 9. Further, in the decision reported in _**Jayaram v. Kerala State Electricity Board**_ (2015 (3) KLT 275), this Court has held that under sub-rule (2) of Rule 10 of Order XXVI of the Code of Civil Procedure, the report of the Commissioner shall be evidence in the suit and shall form part of the record. The court or, with the permission of the 8 O.P.(R.C).No.133 of 2015 Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to manner in which he has made the investigation. It is well settled that it is not necessary to examine the Commissioner in order to rely on the report submitted by him in a suit where the inspection of the property was made after notice to both parties. In a proceedings before the District Judge under section 16 of the Indian Telegraph Act also, the same procedure and the same principles would apply. So it is clear from the above decision also that once the Commissioner inspected the property after issuing notice to the parties and a report has been filed, then it will form part of the record and the court can rely on that report for the purpose of arriving at a finding in the proceedings even without examining the Commissioner. If any of the parties want to vary from the observations made by the Commissioner, they will have to file an application before the court to examine the Commissioner and on the basis of the materials collected during the course of examination of the Commissioner, the court has to consider the reliability or otherwise of the commissioner's report for the purpose for which that has been taken. 10. It is clear from these decisions that in order to apply order XXVI Rule 10 (2) of the Code of Civil Procedure, the Commissioner's O.P.(R.C).No.133 of 2015 9 report must be the one obtained after notice to both the parties. It is not clear from the Commissioner's report as to whether any such attempt has been made by the Commissioner before inspecting the property as well. So in such circumstances, it can be only presumed that it was a report filed by the Commissioner ex parte without giving notice to the parties to the proceedings and in such cases in view of the dictum laid down in the decisions cited supra, the Commissioner's report can be admitted in evidence only after examining the Commissioner by the party who wanted to rely on that report. 11. It is true that going through objections raised in the petition and also submissions made by the counsel for the parties to the proceedings and the Commissioner's report, the court below was perfectly justified in coming to the conclusion that the commission was taken out in the year 2013 and the objection to remit the Commissioner's report was filed in the year 2015 and no purpose will be served by remitting the commissioner's report at this stage to report about the things mentioned in the petition by remitting Commissioner's report. But at the same time, if on the basis of the evidence adduced on the side of the respondents, if the court is satisfied that further evidence will have to be collected by issuing a commission, then the order passed by the court below by the O.P.(R.C).No.133 of 2015 10 impugned order will not stand in the way of deputing the same Commissioner or appointing another Commissioner if the earlier Commissioner is not available for the purpose of collecting such materials which are required for the purpose of arriving at a just conclusion in the matter. With the above observations and directions, we feel that the petition can be disposed of leaving open the parties to adduce evidence regarding the admissibility or reliability of the Commissioner's report by examining the Commissioner and if the court feels that further evidence is required on the basis of the evidence given by the Commissioner, then the impugned order will not stand in the way of exercising the discretion of remitting the same and calling for a further report on that basis. If the same Commissioner is not available, another Commissioner shall be deputed to prove the particular aspect which is sought to be clarified on the basis of the cross examination. Considering the fact that the case is of the year 2013, the Rent Control Court is also directed to expedite the trial of the case at the earliest possible time after giving an opportunity to the necessary parties to prove their case on the basis of the objections raised. Before parting, we feel it appropriate to alert the subordinate courts while ordering exparte commission, to make it clear in the O.P.(R.C).No.133 of 2015 11 order itself that the Commissioner has to give notice to the parties before making inspection and it is the duty of the Commissioner to comply with the same and if it is not possible for the Commissioner to give notice, he must state that fact in the report. Commissioner is also expected to mention in the report the manner in which the attempt was made to give notice to the parties before inspection and produce evidence regarding the same along with the report. With the above directions and observations, this petition is disposed of. Communicate a copy of this judgment to the court below at the earliest. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge