Abdulla Kunhi and Sainaba v. Poomadath Shaibana and Poomadath Juana and others

## **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 3[RD] DAY OF NOVEMBER 2021/12TH KARTHIKA, 1943 O.P.(RC)NO.190 OF 2019** **AGAINST THE ORDER DATED 19.10.2019 IN I.A.NO.2085 OF 2019 IN R.C.P.NO.36 OF 2018 OF THE RENT CONTROL COURT** **(MUNSIFF), HOSDRUG, KASARGOD** ## **PETITIONERS:** **1 ABDULLA KUNHI AGED 38 YEARS S/O MOHAMMED, RESIDING AT KOPPADY HOUSE, KOTTACHERY, BALLA VILLAGE, HOSDURG TALUK.** **2 SAINABA AGED 36 YEARS D/O MOHAMMED, RESIDING AT KOPPADY HOUSE, KOTTACHERY, BALLA VILLAGE, HOSDURG TALUK.** **BY ADVS. SRI.P.R.VENKATESH SRI.G.KEERTHIVAS** ## **RESPONDENTS:** **1 POOMADATH SHAIBANA, AGED 46 YEARS, D/O.LATE ABDUL RAZAK, RESIDING AT 'SOTHARA', NEAR KANHANGAD RAILWAY STATION, P.O. KANHAGAD IN HOSDURG VILLAGE OF HOSDURG TALUK, REPRESENTED BY HER POWER OF ATTORNEY HOLDER POOMADATH ASSYUMMA, AGED 62 YEARS PIN 671 315** -2- ## O.P.(RC)NO.190 OF 2019 ## **2 POOMADATH JUANA** ## **AGED 42 YEARS** **D/O. LATE ABDUL RAZAK, RESIDING AT 'SOTHARA', NEAR KANHANGAD RAILWAY STATION, P.O. KANHAGAD IN HOSDURG VILLAGE OF HOSDURG TALUK, REPRESENTED BY HER POWER OF ATTORNEY HOLDER POOMADATH ASSYUMMA, AGED 62 YEARS PIN 671 315** - **3 ABDUL RAZAK AGED 57 YEARS** **S/O SULAIMAN, RESIDING AT MUMTAZ MAHAL, PARAVANADUKKAM, CHEMMANAD VILLAGE, KASARAGOD TALUK, PIN 671 315** - **4 MUMTAZ RAZAK AGED 40 YEARS** **W/O ABDUL RAZAK RESIDING AT MUMTAZ MAHAL, PARAVANADUKKAM, CHEMMANAD VILLAGE, KASARAGOD TALUK PIN-671 315** - **5 NAZEER ALI** **AGED 42 YEARS** **S/O KUNHAMMED, RESIDING AT THOTI HOUSE, PALLIKKERE VILLAGE, HOSDURG TALUK PIN- 671 315** - **6 UMAIBA** **AGED 37 YEARS** **S/O MUHAMMED SHEREEF, RESIDING AT 'FIELD VIEW', MANGAD, HOSDURG TALUK PIN 671 315** - **7 SHAMSU** **AGED 45 YEARS** **BUSINESS 'CHAMAYAM' IN PVK BAZAR, OPPOSITE MUNICIPAL BUS STAND, P.O. KANHANGAD IN BALLA VILLAGE OF HOSDURG TALUK PIN 671 315** - **8 RIYAZ,** **AGED 36 YEARS** **BUSINESS 'CHAMAYAM' IN P.V.K. BAZAR, OPPOSITE MUNICIPAL BUS STAND, P.O KANHANGAD IN BALLA VILLAGE OF HOSDURG TALUK PIN 671 315** -3- ## O.P.(RC)NO.190 OF 2019 **9 BIJU AGED 36 YEARS BUSINESS 'CHAMAYAM' IN P.V.K. BAZAR, OPPOSITE MUNICIPAL BUS STAND, P.O KANHANGAD IN BALLA VILLAGE OF HOSDURG TALUK PIN 671 315** **10 KOPPATTY MUHAMMED 'CHAMAYAM' IN P.V.K. BAZAR, OPPOSITE MUNICIPAL BUS STAND, P.O KANHANGAD IN BALLA VILLAGE OF HOSDURG TALUK PIN 671 315** **R1 & R2 BY ADVS.SRI.T.SETHUMADHAVAN (SR.) SMT.LIGEY ANTONY SMT.DEEPA NARAYANAN SMT.PREETHI. P.V.** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -4- ## O.P.(RC)NO.190 OF 2019 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners are respondents 3 and 4-tenants in R.C.P.No.36 of 2018 on the file of the Rent Control Court (Munsiff), Hosdurg, a petition filed by respondents 1 and 2 herein-landlords seeking eviction of the tenants from the petition schedule shop rooms, under Sections 11(3), 11(4)(i) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The tenants entered appearance and filed counter statement. The tenants are before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P11 order dated 19.10.2019 of the Rent Control Court in I.A.No.2085 of 2019 in R.C.P.No.36 of 2018, whereby the application filed by the landlords, under Order VI, Rule 17 of the Code of Civil Procedure, 1908 read with Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act, seeking amendment of the pleadings in the Rent Control Petition stands allowed, for the reasons stated therein. 2. On 07.11.2019, when this original petition came up -5- ## O.P.(RC)NO.190 OF 2019 for admission, this Court admitted the matter on file and issued notice by speed post to the respondents. This Court granted an interim order staying all further proceedings in R.C.P.No.36 of 2018 on the file of the Rent Control Court, Hosdurg, for a period of three weeks. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitionerstenants and also the learned counsel for respondents 1 and 2- landlords. Despite service of notice, none appears for respondents 3 to 10, other tenants of the petition schedule shop rooms. 4. The learned counsel for the petitioners-tenants would contend that the amendment of the pleadings in the Rent Control Petition, as sought for in I.A.No.2085 of 2019, during the pendency of the application made by the landlords under Section 12 of the Act for payment of admitted arrears, will cause prejudice to the tenants. In such circumstances, the Rent Control Court ought to have dismissed that interlocutory application. 5. Per contra, the learned counsel for respondents 1 and 2-landlords would contend that the order of the Rent -6- ## O.P.(RC)NO.190 OF 2019 Control Court allowing I.A.No.2085 of 2019 filed by the landlords for amendment of the pleadings in the Rent Control Petition, as sought for in that interlocutory application, is perfectly legal, which warrants no interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P11 order dated 19.10.2019 of the Rent Control Court in I.A.No.2085 of 2019 in R.C.P.No.36 of 2018, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 7. I.A.No.2085 of 2019 is one filed by the landlords under Order VI, Rule 17 of the Code of Civil Procedure read with Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act, seeking amendment of the pleadings in the Rent Control Petition. Such an amendment was sought for to incorporate the pleadings with respect to illegal occupation of additional space by the tenants and consequential enhancement of the rent for that space, which was omitted to be pleaded originally in the Rent Control Petition. -7- ## O.P.(RC)NO.190 OF 2019 8. The tenants filed counter statement, contending that, the application for amendment is an attempt made by the landlords to setup a new case and demand excessive rent from them. Any amendment of the pleadings in the Rent Control Petition, during the pendency of the application made by the landlords under Section 12 of the Act for payment of admitted arrears, will cause prejudice to them. 9. Order VI, Rule 17 of the Code of Civil Procedure deals with the amendment of pleadings. Order VI, Rule 17 of the Code, as substituted by the Code of Civil Procedure (Amendment) Act, 2002, provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. However, going by the proviso to the said Rule, no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. -8- ## O.P.(RC)NO.190 OF 2019 10. The proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908 introduced by the Code of Civil Procedure (Amendment) Act, 2002 is intended to ensure speedy trial of cases by curtailing protraction of cases at the trial stage. In a case where the trial has commenced, the court can allow an application made for amendment of pleadings, if it comes to the conclusion that in spite of due diligence, the applicant could not file such an application before commencement of trial and that, the amendment sought for is necessary for the purpose of determining the real controversy between the parties. 11. In **Rajkumar Gurawara (Dead) through Lrs. v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364]** the Apex Court held that Order VI, Rule 17 of the Code of Civil Procedure confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In -9- ## O.P.(RC)NO.190 OF 2019 the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso. 12. In the instant case, after considering the rival contentions, the Rent Control Court rightly concluded that, the contention of the tenants that allowing the application for amendment, during the pendency of the application made by the landlords under Section 12 of the Act for payment of admitted arrears, will cause prejudice to them cannot be sustained, since under Section 12 of the Act the tenants need to pay only the admitted rent. The Rent Control Court found that the proposed amendment will not change the nature and character of the Rent Control Petition. Further, no prejudice will be caused to the tenants by the amendment proposed, as they will get an opportunity to contest the Rent Control Petition on the basis of amended pleadings. Therefore, the Rent Control Court allowed I.A.No.2085 of 2019 and the -10- ## O.P.(RC)NO.190 OF 2019 landlords are permitted to amend the Rent Control Petition, as sought for in that application. 13. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under Article 227(1) 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. 14. 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 -11- ## O.P.(RC)NO.190 OF 2019 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. 15. 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 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 -12- ## O.P.(RC)NO.190 OF 2019 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. 16. 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. 17. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law -13- ## O.P.(RC)NO.190 OF 2019 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. 18. In the instant case, it cannot be said that, while allowing the application for amendment, i.e., I.A.No.2085 of 2019 filed by the landlords, seeking amendment of the pleadings in R.C.P.No.36 of 2018, as sought for in that application, the Rent Control Court committed any manifest error or that the reasoning of the Rent Control Court in Ext.P11 order is palpably perverse or patently unreasonable, warranting interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. -14- O.P.(RC)NO.190 OF 2019 19. In such circumstances, we find no reason to interfere with Ext.P11 order of the Rent Control Court. In the result, this original petition fails and the same is accordingly dismissed. No order as to costs. 20. The learned counsel for respondents 1 and 2- landlords would submit that the Rent Control Petition is of the year 2018 and therefore, the Rent Control Court, Hosdurg may be directed to dispose of R.C.P.No.36 of 2018, within a time limit. 21. The Rent Control Court shall give a reasonable time to the tenants to file additional counter statement to the amended Rent Control Petition. The Rent Control Court shall finally dispose of R.C.P.No.36 of 2018, as expeditiously as possible, at any rate, within a period of five months from the date of production of a certified copy of this judgment. We make it clear that, observations, if any, contained in this judgment touching the merits of the case pending before the Rent Control Court, Hosdurg, are made only for the limited purpose to decide the question as to whether any interference is warranted on Ext.P11 order, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution -15- ## O.P.(RC)NO.190 OF 2019 of India, and the Rent Control Court shall proceed with R.C.P.No.36 of 2018, untrammelled by any such observations. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV -16- O.P.(RC)NO.190 OF 2019 ## **APPENDIX OF OP (RC) 190/2019** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF THE RCP NO. 36/2018 ON THE FILES OF THE RENT CONTROL COURT (MUNSSIFF) OF HOSDURG.** - **EXHIBIT P2 TRUE COPY OF LAWYER NOTICE DATED 21.08.2018 ISSUED ON BEHALF OF RESPONDENTS 1 AND 2.** - **EXHIBIT P3 TRUE COPY OF REPLY NOTICE DATED 26.10.2018 ISSUED TO V.SATHEESHKUMAR, ADVOCATE.** - **EXHIBIT P4 TRUE COPY OF COUNTER STATEMENT FILED BY RESPONDENTS 3,9 AND 10 IN RCP NO. 36/2018.** - **EXHIBIT P5 TRUE COPY OF AGREEMENT DATED 7.2.2002 EXECUTED BY THE PETITIONERS AS WELL AS RESPONDENTS 3,4,5 AND 6 IN FAVOUR OF RESPONDENTS 1 AND 2.** - **EXHIBIT P6 TRUE COPY OF THE AGREEMENT BETWEEN TENANTS AND THE PREVIOUS TENANTS.** - **EXHIBIT P7** **TRUE COPY OF THE I.A 1679/2019 FILED IN RCP.36/2018 FILED BY THE 2ND PETITIONER IN RCP.** - **EXHIBIT P8 TRUE COPY OF COUNTER STATEMENT FILED IN I.A NO .1679/2019 IN RCP .36/2018 BY RESPONDENTS 3,9 AND 10.** - **EXHIBIT P9 TRUE COPY OF THE AMENDMENT APPLICATION IA NO. 2085 /2019 IN RCP 36/2018.** - **EXHIBIT P10 TRUE COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENTS 3,9, AND 10 FILED IN IA 2085/19 IN RCP 36/2018.** -17- O.P.(RC)NO.190 OF 2019 **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 19.10.2019 OF THE LEARNED MUNSIFF IN IA 2085/19 IN RCP 36/2018.** **EXHIBIT P12 TRUE COPY OF INTERROGATORY AS IA NO.1845/2019 SERVED BY PETITIONERS ALONG WITH RESPONDENTS 9 AND 10. EXHIBIT P13 TRUE COPY OF COUNTER AFFIDAVIT ALONG WITH ANSWER DATED 23.9.2019 IN IA NO. 1845 /2019 IN RCP NO.36/2018 EXHIBIT P14 TRUE COPY OF THE ANSWER AFFIDAVIT DATED 4.10.2019 IN RCP 36/2018**