A.K. Sheriff v. Mansoor

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 OP (RC) NO. 22 OF 2019** **AGAINST THE ORDER DATED 08.01.2019 IN I.A.NO.434 OF 2018 IN R.C.P.NO.117 OF 2014 OF THE RENT CONTROL COURT,** ## **THALASSERY** ## **PETITIONER:** **A.K.SHERIFF AGED 49 YEARS S/O.MAMMOOTTY, RESIDING AT DELISLE, KUNNOTHUMCHAL, KANNUR.P.O. BY ADV K.V.PAVITHRAN** ## **RESPONDENT:** **MANSOOR FATHERS NAME NOT KNOWN AGED 42 YEARS, AL-MANSOOR JEWELLERY, NEAR FIRE STATION, THALASSERI, P.O.THALASSERI. BY ADVS. V.BINOY RAM S.SIDHARDHAN** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC)No.22 of 2019 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed R.C.P.No.117 of 2014 before the Rent Control Court, Thalassery, a petition under Sections 11(4)(ii), 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of respondent hereintenant from the petition schedule building. During the pendency of that Rent Control Petition, the landlord filed I.A.No.434 of 2018 (Ext.P3), an application under Section 23(1)(j) of the Act, seeking amendment of the Rent Control Petition, in order to include the ground for eviction under Section 11(3) of the Act, on the ground that the brother of the landlord, who is doing hardware and paint business at Kannur, wants to do the very same business at Thalassery, in the petition schedule building. The tenant filed counter statement (Ext.P4), opposing the relief sought for in I.A.No.434 of 2018. After considering the rival contentions, the Rent Control Court, by the impugned order dated 08.01.2019, dismissed I.A.No.434 of 2018, on the ground that the ground of eviction under Section 11(3) of the Act, sought to be incorporated by O.P.(RC)No.22 of 2019 3 way of amendment, will not come within the scope of 'error' or 'omission' as contemplated in Section 23(1)(j) of the Act. 2. Challenging the aforesaid order of the Rent Control Court, the petitioner-landlord is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 3. On 12.02.2019, when this original petition came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondent-tenant. This Court granted an interim order, whereby the final disposal in R.C.P.No.117 of 2014 was deferred for a period of three weeks. 4. On 23.09.2021, when this original petition came up for consideration, Registry was directed to call for a report from the Rent Control Court, Thalassery, as to the present status of R.C.P.No.117 of 2014. Pursuant to that order, a report dated 29.09.2021 is received from the Rent Control Court, wherein it is stated that the Rent Control Petition can be disposed of within a period of three months. 5. Heard the learned counsel for the petitioner- O.P.(RC)No.22 of 2019 4 landlord and also the learned counsel for the respondenttenant. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P6 order dated 08.01.2019 of the Rent Control Court, Thalassery, in I.A.No.434 of 2018. 7. I.A.No.434 of 2018 is one filed by the petitionerlandlord seeking an order to amend R.C.P.No.117 of 2014, in order to incorporate the ground of eviction under Section 11(3) of the Act, on the ground that the brother of the landlord, who is doing hardware and paint business at Kannur, wants to do the very same business at Thalassery, in the petition schedule building. That application is one filed under Section 23(1)(j) of the Act, which provides that, subject to such conditions and limitations as may be prescribed, the Accommodation Controller, the Rent Control Court and the Appellate Authority shall have the powers which are vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the power to amend any defect or error in orders or proceedings. O.P.(RC)No.22 of 2019 5 8. In **Abdul Kareem M. v. P. Muhammed Shafi** **[2017 (2) KLT 645]** , a Division Bench of this Court held that the specific provision incorporated under Section 23(1)(j) of the Act is confined to amendment to cure 'defect' or 'error' in the Rent Control Petition only. If the cause of action for eviction on the new ground, which is intended to be incorporated by way of amendment has arisen after filing of the Rent Control Petition, that ground cannot be allowed to be incorporated by way of amendment, as the same was not available on the date of filing the Rent Control Petition. If that ground was not available, on the date of filing of the Rent Control Petition, it will not fall under the 'defect' or 'error' contemplated under Section 23(1)(j) of the Act. It follows that if the matters sought to be incorporated by way of amendment, would not come under 'error' or 'omission', such amendment cannot be allowed in the Rent Control Petition, in exercise of the inherent powers under Section 151 or Order VI, Rule 17 of the Code of Civil Procedure. 9. In the impugned order dated 08.01.2019 in I.A.No.434 of 2018, the Rent Control Court examined the O.P.(RC)No.22 of 2019 6 question as to whether the ground of eviction under Section 11(3) of the Act, which is sought to be incorporated by way of amendment was available to the landlord on the date of filing the Rent Control Petition, in the light of the law laid down by the Division Bench of this Court in **Abdul Kareem M. (supra)** . 10. Before the Rent Control Court, the learned counsel for the tenant argued that the bona fide need is clearly stated in R.C.P.Nos.28 and 52 of 2015 filed by the landlord for eviction of adjacent buildings. The Rent Control Court noticed that the Rent Control Petition in which an application for amendment is made is one filed in the year 2014, i.e., R.C.P.No.117 of 2014 and therefore, based on the pleadings in the Rent Control Petitions filed in the year 2015, seeking eviction of the adjacent rooms, the landlord cannot contend that the ground of eviction under Section 11(3) of the Act, was in existence or available to the landlord in the year 2014, when R.C.P.No.117 of 2014 was filed seeking eviction of the respondent-tenant from the petition schedule building, under Section 11(4)(2), 11(4)(3) and 11(4)(5) of the Act. The Rent O.P.(RC)No.22 of 2019 7 Control Court noticed that, if the ground of eviction under Section 11(3) of the Act was available to the landlord at the time of filing R.C.P.No.117 of 2014, certainly he would have applied for an amendment, as sought for in I.A.No.434 of 2018, at least in the year 2015 while filing R.C.P.Nos.28 of 2015 and 52 of 2015 seeking eviction of the adjacent buildings. 11. In the impugned order, after considering the rival contentions, in the light of the law laid down by the Division Bench in **Abdul Kareem M. (supra)** , the Rent Control Court concluded that the amendment as sought for in I.A.No.434 of 2018 will not come under the scope of 'error' or 'omission' as contemplated under Section 23(1)(j) of the Act. The reasoning of the Rent Control Court in the impugned order, while rejecting the aforesaid interlocutory application, cannot said to be either perverse or patently illegal. 12. 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 O.P.(RC)No.22 of 2019 8 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. 13. 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 O.P.(RC)No.22 of 2019 9 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. 14. 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 O.P.(RC)No.22 of 2019 10 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. 15. 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 and the cases O.P.(RC)No.22 of 2019 11 of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 16. 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. 17. 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 O.P.(RC)No.22 of 2019 12 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. 18. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, no interference is warranted on the impugned order of the Rent Control Court dated 08.01.2019 in I.A.No.434 of 2018 in R.C.P.No.117 of 2014, since the reasoning of the said court is O.P.(RC)No.22 of 2019 13 neither perverse nor patently illegal. It cannot also be said that while dismissing the aforesaid interlocutory application, the Rent Control Court committed any material irregularity. 19. In the result, this original petition fails and the same is accordingly, dismissed. No order as to cost. Since the Rent Control Petition is of the year 2014, the Rent Control Court, Thalassery, shall finally dispose of R.C.P.No.117 of 2014, as expeditiously as possible, at any rate, within a period of three months from the date of production of the certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** O.P.(RC)No.22 of 2019 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE RENT CONTROL PETITION NO.117/14 OF THE RENT CONTROL COURT, THALASSERI.** **EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE TENANT IN RCP 117/2014.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN THE APPLICATION FOR AMENDMENT.** **EXHIBIT P5 TRUE COPY OF THE REVIEW APPLICATION FILED BY THE PETITIONER IN RCP.** **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE RENT CONTROL COURT THALASSERI IN IA.434/2018.** **RESPONDENT'S EXHIBITS: NIL**