Attukal Bhagavathi Temple Trust v. Attukal Devi Institute of Medical Science Ltd.

THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939 OP (RC).No. 6 of 2018 -------------------(JUDGMENT DATED 30.11.2017 IN RCA.28/2017 PASSED BY THE ADDL. DISTRICT JUDGE-II, THIRUVANANTHAPURAM) ## PETITIONER(S) ------------ ATTUKAL BHAGAVATHI TEMPLE TRUST P.B NO.5805, ATTUKAL, MANAKKADU P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY K.SISUPALAN NAIR. BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA) RESPONDENT(S): ------------- ATTUKAL DEVI INSTITUTE OF MEDICAL SCIENCE LTD. ATTUKAL, MANAKKADU P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, DR.D.M.VASUDEVAN, PIN- 695 009. R1 BY ADV. SRI.M.RAJENDRAN NAIR (THONNALLOOR) R1 BY ADV. SRI.SREEJITH R.NAIR R1 BY ADV. SRI.G.S.PRAKASH R1 BY ADV. SRI.A.D.SHAJAN THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 22-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 6 of 2018 (O) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE PETITION IN RCP 76/2016 OF RENT CONTROL COURT, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA. 1852/2017 IN RCP 76/2016 OF RENT CONTROL COURT, THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED TO I.A 1852/2017 IN RCP NO.76/2016 OF RENT CONTROL COURT, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 12/4/2017 IN IA 1852/2017 IN RCP 76/2016 OF RENT CONTROL COURT, THIRUVANANTHAPURAM. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 30/11/2017 IN RCA 28/2017 OF THE ADDITIONAL DISTRICT COURT II, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// Sd/- P.A.TO JUDGE ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================== O.P.(RC) No.6 OF 2018** ## **==========================** Dated this the 22[nd] day of February, 2018 ## **JUDGMENT** _Ravikumar, J._ The tenant in R.C.P.No.76 of 2016 on the files of the Rent Control Court, Thiruvananthapuram who filed the said petition for fixation of fair rent under section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') is now, before us in appeal. The landlord who is the respondent herein, on entering appearance, filed I.A.No.1852 of 2017 seeking appointment of an Advocate Commissioner for the purpose of ascertaining the matters specifically enlisted thereunder. Against the said application, viz., Ext.P2, the petitioner tenant filed Ext.P3 objection. After considering Exts.P2 and P3, the Rent Control Court had passed Ext.P4 order. Admittedly, eight matters were specifically required to be ascertained in Ext.P2 application and in addition to that, additional prayer was **O.P.(RC) No.6/2018** 2 also made as hereunder:- Such other matters as requested by the petitioner at the time of visit of the Advocate commissioner. 2. As per Ext.P4 order, the Rent Control Court partly allowed the application and appointed an Advocate Commissioner to ascertain certain matters in terms of the decision of this Court in **Edger Ferus** **v. Abraham Ittycheria [2004 (1) KLT 767]** . At the same time, while passing the said order, an observation was made by the Rent Control Court which according to the respondent herein/landlord would adversely affect its prospects in the rent control petition. The said observation reads thus:- “On perusal of the petition it is seen that the matters 1-8 sought to be ascertained are not relevant in deciding a petition u/s 5(1) of Kerala Building (Lease and Rent Control) Act.” As noticed hereinbefore, only 8 matters were specifically sought to be ascertained by the Advocate Commissioner and evidently, it is only after realising the same that such an observation was made by the Rent Control Court. It is also pertinent to note that even after making **O.P.(RC) No.6/2018** 3 such an observation, the Rent control Court went on to hold that in order to arrive at a just decision, a Commission Report is very essential and accordingly, allowed the application. The tenant in the rent control petition, the petitioner herein took up the matter in appeal as R.C.A.No.28/2017. The appellate authority had passed the impugned order whereby and whereunder it had specifically arrived at a finding that as against the order in I.A.No.1852/2017 in RCP.No.76/2016 passed by the Rent Control Court, no appeal would lie. Even after holding thus, the appellate authority, in troth, passed an order viz., Ext.P5 on merits. It is in the said circumstances that the landlord filed this original petition under Article 227 of the Constitution mainly with the following prayer:- “Call for the records leading to the passing of Exhibit P5 judgment in RCA 28/2017 of the Additional District Court-II, Thiruvananthapuram and quash the observations made in Para 7 thereof.” 3. We have heard the learned counsel for the petitioner and the learned counsel for the respondent. **O.P.(RC) No.6/2018** 4 4. The learned counsel for the petitioner submitted that the appellate authority had committed a patent illegality inasmuch as after holding that it lacks jurisdiction, it passed an order on merits. Raison d'etre for taking up such a contention is that even after holding that it lacks jurisdiction, in paragraph 7 of the impugned judgment, the appellate authority had made the following observations:- “It is pertinent to note that the guidelines laid down by the Hon'ble High Court as above are not exhaustive or fully contended. It, in fact laid down some mandatory matters that are required for ascertaining the fair rent and thus the above decision supra does not deprive the parties from collecting additional matters and evidences. However, a perusal of the commission application in IA No.1852/17 in RCP No.76/2016 would reveal that the matters sought for in this petition are already covered under the above decision. Going by the above decision and accepting the principles and guidelines laid down therein, the learned Rent Controller ought not have declined the matters sought for in the above commission application. Anyhow, the commissioner will have to consider all those matters in that petition eventhough it is declined by the court, while applying the principles contained in the above decision. Hence, a further direction or order for ascertaining the matters in that petition is not **O.P.(RC) No.6/2018** 5 necessitated, since the commissioner by applying the above principles will be collecting and ascertaining all those matters.” It is obvious that even after holding that it lacks jurisdiction, the appellate authority held that going by the decision and accepting the principles and guidelines laid down in **Edger Ferus** ' case, the Rent Control Court ought not to have declined the matters sought for ascertainment in the commission report. As can be seen from the above extracted portion, the Appellate Authority had thereafter made a further observation that the Commissioner would have to consider all those matters in that petition even though they were declined by the court while applying the principles contained in the above decision. Another crucial observation followed the same. The appellate had authority observed that a further direction or order for ascertaining matters in that petition is not necessitated as the commissioner by applying the principles therein would be collecting and ascertaining all those matters. The question is what is the ultimate result and impact of such observations made by the appellate authority even after **O.P.(RC) No.6/2018** 6 arriving at a conclusion that no appeal would lie against the order in I.A.No.1852/2017. The learned counsel for the petitioner contended that a scanning of the impugned order would undoubtedly go to show that it is as good as a judgment reversing the order passed by the Rent Control Court even after holding that it lacks jurisdiction. In such circumstances, it is contended by the learned counsel that the order invites interference in exercise of the power under Article 227 of the Constitution. The learned counsel appearing for the respondent would fairly contend that a court which ultimately came to a conclusion that it lacks jurisdiction ought not to have entered into any further finding or made any further observation, touching the merits. 5. On giving our anxious consideration to the recital in paragraph 7 of the impugned judgment, which was made after holding that no appeal would lie against the order in I.A.No.1852/2016 in RCP No.76/2016, made by the Appellate Authority, in essence, got the impact of reversing the order passed by the Rent Control Court, in that interlocutory application. There can be little doubt with respect to the **O.P.(RC) No.6/2018** 7 position that a court upon arriving at a finding in the negative regarding its jurisdiction to entertain the matter before it could not have and would not have entered into a further finding or made any further observation touching the merits of the matter involved therein. As contended by the learned counsel for the petitioner, based on the mere observation that the Rent Controller ought not to have declined the matters sought for ascertainment in Ext.P2 application, the Commissioner would be compelled to consider all matters in that petition even though they were declined by it. This is because of the further observation that commissioner by applying the principles (essentially, the reference is to the principles and guidelines laid down in Edger Ferus' case) would be collecting and ascertaining all those matters. Thus, Ext.P5 would be having the impact of reversal of Ext.P4 order passed by the Rent Control Court. If, going by Ext.P5, such matters are to be collected by the Advocate Commissioner, necessarily they are to be considered by the Rent control Court, going by the effect of Ext.P5 judgment. **O.P.(RC) No.6/2018** 8 6. But at the same time, while exercising the power of supervisory jurisdiction under Article 227 of the Constitution, we should keep reminded of the decision of the Hon'ble Apex Court in **Surya Dev Rai v. Ram Chander Rai and others** [ **AIR 2003 SC 3044]** in view of the circumstances obtained in this case. It was held therein that supervisory jurisdiction under Article 227 of the Constitution is to be exercised for keeping the subordinate Courts within the bounds of their jurisdiction. Further, it was observed that when the subordinate court has assumed a jurisdiction which it does not have or it has failed to exercise jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice had occurred thereby, the High Court has to step in to exercise its supervisory jurisdiction. Further, the Apex Court held:- “The parameters for exercise of jurisdiction under Art. 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and **O.P.(RC) No.6/2018** 9 circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine.' Thus, the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.” 7. In the case on hand, we have already found that the appellate authority even after arriving at a clear finding regarding its lack of jurisdiction based on the fact that no appeal would lie against the order in the aforementioned I.A, went on to make observations having the impact of the reversal of the order against which an appeal would not lie. When an appeal would not lie against an order, how can the appellate authority pass a judgment which, in effect, would reverse that order, without exercising the appellate power. Therefore, when the impact is reversal of such an order, it could only be presumed that even after holding that it lacks jurisdiction court/authority went on to exercise the appellate power which is lacking in the given case. Certainly, it is a matter to be set right in exercise of the power under **O.P.(RC) No.6/2018** 10 Article 227 of the Constitution. But at the same time, interfering with the impugned judgment would necessarily restore the order of the Rent Control Court. It is to be noted that it is feeling aggrieved by the said order passed in I.A.1852/2016 that the respondent herein filed the appeal. True that the appellant/respondent herein did not challenge the order passed in RCA.28/2016. It is under challenge at the instance of the landlord in this case. But a bare perusal of the order would reveal that even though the appellate authority held that it lacks jurisdiction, the ultimate impact of the said order is that the respondent herein had obtained the desired purpose by preferring such an appeal. In such circumstances, we cannot find any fault with the respondent therein viz., the petitioner challenging the order passed by the appellate authority in RCA.No.28/2016. 8. We have already taken note of the fact that the respondent herein viz., the landlord as per I.A.1852/2016 sought for ascertaining eight matters, specifically. It is in respect of those eight matters that the Rent Control Court had made the observation that they are not at **O.P.(RC) No.6/2018** 11 all relevant for deciding a petition under section 5(1) of the Act. At the same time, a perusal of Ext.P4 order passed by the Rent Control Court would reveal that no reason whatsoever was assigned by the Rent Control Court in arriving at such a conclusion that they are not relevant in deciding the petition before it. Nonetheless, it allowed the I.A partly and appointed Advocate Commissioner. Evidently, matters 1 to 8 sought to be ascertained were held as irrelevant for deciding a petition u/s.5(1) of the Act. We have already taken note of the fact that as 9[th] point 'such other matters as requested by the petitioner herein at the time of visit of the Advocate commissioner' sought to be ascertained. A perusal of Ext.P4 would reveal that after allowing the I.A partly, the Rent control Court had appointed the Advocate Commissioner and directed him to ascertain matters as laid down in **Edger Ferus** ' case (supra). Thus, it is evident that it was without considering the points sought to be ascertained with application of mind and without assigning any reason that the Rent Control Court had arrived at the finding that the matters sought to be ascertained are **O.P.(RC) No.6/2018** 12 not at all relevant. At the same time, a perusal of the impugned judgment would reveal that without applying the mind and at the same time without assigning any reason, the appellate authority had made an observation to the effect that the Advocate Commissioner would be collecting and ascertaining all those matters. Essentially, such an observation must have been made by the Appellate authority, on arriving at a prima facie, opinion that they are all relevant for the purpose of deciding the main petition. It is in such circumstances that we held that the order passed by the appellate authority viz., Ext.P5 is having the effect of the reversal of the order passed by the Rent Control Court. Thus, it is evident that in respect of matters 1 to 8 sought to be ascertained in Ext.P2 application while the Rent Control Court is of the view that they are not relevant, the Rent Control appellate authority is of the view that they are relevant and material and hence, they would be collected by the Advocate Commissioner. We are of the considered view that no court could prevent a party from leading the best evidence to prove his case and at the same time, **O.P.(RC) No.6/2018** 13 it is the bounden duty of the court to consider the relevancy or otherwise of such matters at the appropriate stage. In the decision in **Payani Achuthan v. Chemballikundu Harijan Fisheries Development Co-operative Society [1996 (1) KLT 828]** , this Court held that a Court could not prevent a party from adducing the best evidence. We may hasten to add that we shall not be understood to have held that matters 1 to 8 sought to be ascertained as per Ext.P2 are the best evidence or that they are not the best evidence. As noticed hereinbefore, essentially, their relevancy and admissibility are matters for the Court to consider at the appropriate stage in accordance with law. In such circumstances, we are of the view that if we interfere with Ext.P5 judgment passed by the appellate authority in its entirety, it would result in restoration of Ext.P4 order. For the flaw kept in Ext.P4, such an interference would make mistake crept in Ext.P5 immune from correction. Certainly, this Court cannot exercise the power under Article 227 in such a manner. In view of the decision in **Surya Dev Rai'** s case, it is evident that exercise of supervisory **O.P.(RC) No.6/2018** 14 jurisdiction is required to keep the subordinate courts within the bounds of their jurisdiction. 9. The discussions as above would reveal that mere setting aside of Ext.P5 order would restore Ext.P4 order and it would ultimately result in grave injustice or failure of justice. We have already held that the Rent Control Court too, committed an error which is manifest and apparent on the face of the record and we have also made it clear that a court could not prevent a party from adducing the best evidence and further that the relevancy or admissibility of evidence is a matter for the court to consider only at the appropriate stage. The long and short of the discussions is that Ext.P5 order is liable to be set aside. At the same time, it cannot result in restoration of Ext.P4 order as it is, in view of the reasons assigned by us hereinbefore. In such circumstances, the only course for this Court is to set aside Ext.P4 as well and to issue a further direction to the Rent Control Court to reconsider Ext.P2 application, in accordance with law after hearing both sides. Consequently, Ext.P4 is also set aside. **O.P.(RC) No.6/2018** 15 I.A.No.1852 of 2017 in R.C.P.No.76 of 2016 is restored into the file of Rent Control Court, Thiruvananthapuram and there will be a further direction to Rent Control Court, Thiruvananthapuram to consider Ext.P2 application viz., I.A.No.1852 of 2017 afresh, in accordance with law after hearing both sides. We make it clear that it would be open to the parties to argue whether the matters sought to be ascertained as per the said I.A, are matters falling within the purview of **Edger Ferus** ' case or not. This original petition is disposed of, as above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** **spc/** //true copy// Sd/- P.A. to Judge **O.P.(RC) No.6/2018** 16 **C.T. RAVIKUMAR, J.** **O.P.(RC) No.6/2018** 17 **JUDGMENT September, 2010**