Biju Francis v. Sankaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** ## **O.P.(RC)NO.78 OF 2020** **AGAINST THE ORDERS DATED 09.03.2020 IN I.A.NOS.5 TO 9 OF 2020 IN** **R.C.P.NO.20 OF 2018 OF THE RENT CONTROL COURT (MUNSIFF),** ## **WADAKKANCHERRY, THRISSUR** ## **PETITIONER:** **BIJU FRANCIS, AGED 45 YEARS, S/O. KARUTHUKULANGARA FRANCIS, PROPRIETOR, JANATHA HOME APPLIANCES, WADAKKANCHERRY VILLAGE, WADAKKANCHERY P.O., THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS. LINDONS C.DAVIS SMT.E.U.DHANYA SRI.RAJITH DAVIS** ## **RESPONDENT:** **SANKARAN, AGED 74 YEARS, S/O. NAMARVEETTILKUNHAN, WADAKKANCHERRY VILLAGE, WADAKKANCHERRY P.O., THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680 582.** **BY ADV. RAJIT** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC)NO.78 OF 2020 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed R.C.P.No.20 of 2018 before the Rent Control Court, Wadakkancherry under Sections 11(2)(b), 11(4)(v) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent hereintenant from the petition schedule shop room. The tenant opposed the order of eviction sought for in the Rent Control Petition by filing counter statement. The Rent Control Court ordered joint trial of R.C.P.No.20 of 2018 along with three connected matters. On 05.02.2020, the landlord was examined as PW1. 2. The landlord filed O.S.No.67 of 2020 before the Munsiff Court, Wadakkancherry, against the respondent herein and also against the tenants of the other three shop rooms, seeking permanent injunction. In that suit, the landlord has taken out an ex parte commission, based on the order in I.A.No.2 of 2020. On 12.02.2020, the Advocate Commissioner conducted inspection of the petition schedule shop room in R.C.P.No.20 of 2018 and also the shop rooms in the connected O.P.(RC)NO.78 OF 2020 3 Rent Control Petitions, and submitted Ext.P12 report dated 24.02.2020. 3. The landlord filed I.A.No.5 of 2020 in R.C.P.No.20 of 2018 (Ext.P2 application) to bring the Advocate Commissioner in O.S.No.67 of 2020 as a witness for marking the commission report; I.A.No.6 of 2020 (Ext.P3 application) for re-opening the evidence on the side of landlord for marking the report of the Advocate Commissioner; I.A.No.7 of 2020 (Ext.P4 application) for issuing summons to the Advocate Commissioner in O.S.No.67 of 2020; I.A.No.8 of 2020 (Ext.P5 application) for examining the Advocate Commissioner; and I.A.No.9 of 2020 (Ext.P6 application) for accepting the document list for making the certified copy of Commission Report in O.S.No.67 of 2020 on the file of the Munsiff Court, Wadakkancherry. 4. The landlord filed Exts.P2 to P6 interlocutory applications on 29.02.2020. The tenant filed counter opposing the reliefs sought for in those interlocutory applications. The Rent Control Court by Exts.P7 to P11 orders dated 09.03.2020, dismissed those interlocutory applications, for the O.P.(RC)NO.78 OF 2020 4 reasons stated therein. Feeling aggrieved, the petitionerlandlord is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. In this original petition, the petitioner has sought for an order to set aside Exts.P7 to P11 orders of the Rent Control Court and to direct the said court to allow Exts.P2 to P6 interlocutory applications, as prayed for. The petitioner has also sought for an order directing the Rent Control Court to reopen the evidence and accept the list of documents for marking Ext.P12 commission report and witness list and issue summons to the Advocate Commissioner and permit him to examine the Advocate Commissioner in O.S.No.67 of 2020 on the file of the Munsiff Court, Wadakkancherry. 5. On 18.06.2020, when this original petition came up for admission, this Court issued notice before admission to the respondent. This Court granted an interim stay as prayed for, for a period of four weeks. 6. The notice issued to the respondent-tenant, returned with an endorsement 'not known'. On 30.09.2021, O.P.(RC)NO.78 OF 2020 5 when this original petition came up for consideration, the learned counsel for the petitioner submitted that the respondent-tenant is evading notice and as such, the petitioner shall take out fresh notice to the respondent by special messenger. Based on the aforesaid submission made by the learned counsel for the petitioner, this Court ordered notice to the respondent by special messenger, returnable within two weeks. The special messenger was directed to verify the identity of the respondent before serving notice. By the order dated 30.09.2021, this Court extended the interim order of stay of further proceedings in R.C.P.No.20 of 2018 on the file of the Rent Control Court, for a period of one month. 7. Heard the learned counsel for the petitionerlandlord and also the learned counsel for the respondenttenant. 8. The learned counsel for the petitioner would contend that the Rent Control Court dismissed Exts.P2 to P6 interlocutory applications filed by the landlord without properly appreciating the facts and circumstances of the case. The reasons stated in Exts.P7 to P11 orders dated 09.03.2020 for O.P.(RC)NO.78 OF 2020 6 rejecting those interlocutory applications are per se arbitrary and patently illegal. Therefore, the said orders are liable to be interfered with by this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 9. Per contra, the learned counsel for the respondent would contend that the reasons stated by the Rent Control Court in Exts.P7 to P11 orders, for rejecting Exts.P2 to P6 interlocutory applications filed by the landlord, cannot be said to be either perverse or patently illegal, warranting interference of this Court under Article 227 of the Constitution of India. 10. The learned counsel for the respondent pointed out that, the landlord filed this original petition before this Court without showing the correct address of the tenant in the cause title. On 30.09.2021, the learned counsel for the petitionerlandlord made an incorrect submission before this Court that the tenant is evading notice. 11. The learned counsel for the petitioner-landlord would submit that in the cause title of R.C.P.No.20 of 2018 the correct and complete address of the landlord and the tenant is O.P.(RC)NO.78 OF 2020 7 not shown. While translating the address from Malayalam to English there occurred a mistake, which is neither wilful nor intentional. 12. The document marked as Ext.P1 is a copy of R.C.P.No.20 of 2018 on the file of the Rent Control Court, Wadakkancherry. In the cause title of Ext.P1 the address of the petitioner-landlord and the respondent-tenant is shown as follows; "ഹർജജികക്കാരൻ തലപജിളജി തക്കാലൂകക്ക് വടകക്കാഞഞ്ചേരജി വജിഞല്ലേജക്ക് ഞദേശതക്ക് കുരുതുകുളങ്ങര ഫക്കാൻസജിസക്ക് മകൻ ജനത ഞഹക്കാഹോം അപ്ലയൻസസക്ക് എന്ന സക്കാപനതജിൻ,- ,പക്കാപപറ്റർ 44 വയസക്ക് ബജിജു ഫക്കാൻസജിസക്ക് എത ൃകകജി തലപജിളജി തക്കാലൂകക്ക് വടകക്കാഞഞ്ചേരജി വജിഞല്ലേജക്ക് വടകക്കാഞഞ്ചേരജി ഞദേശതക്ക് നക്കാമർ വവീടജിൽ കുഞ്ഞൻ മകൻ 74 വയസക്ക് ശങ്കരൻ " 13. As per Rule 7(1) of the Kerala Buildings (Lease and Rent Control) Rules, 1979, every application under the Act shall, in addition to the particulars necessary to support it, contain also the particulars prescribed in Rule 12 so far as O.P.(RC)NO.78 OF 2020 8 they may be applicable and every application for eviction under Section 11 or 11A shall also state the grounds on which the application is made. As per Rule 12(3), the particulars to be furnished includes, name and address of the landlord if the particulars are furnished by the tenant, and the name and address of the tenant if the particulars are furnished by the landlord. 14. The address of the petitioner-landlord and the respondent-tenant shown in the cause title of this original petition reads thus; ## “Petitioner: Biju Francis, S/o.Karuthukulangara Francis, aged 45 years, Proprietor, Janatha Home Appliances, Wadakkancherry Village, Wadakkancherry P.O., Thalappilly Taluk, Thrissur District. Respondent: Sankaran, S/o.Namarveettil Kunhan, Aged 45 years, Wadakkancherry Village, Wadakkancherry P.O., Thalappilly Taluk, Thrissur District, Pin - 680582.” 15. In **Sali Mohan v. Kolazhi Grama Panchayath,** **Thrissur and Others [2015 (4) KHC 261]** this Court held that a postal article with incomplete or indefinite address, O.P.(RC)NO.78 OF 2020 9 without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the General Clauses Act, 1897 or Section 26 of the Interpretation and General Clauses Act, 1125, or under Section 16 or Section 114 of the Evidence Act, 1872. This Court held further that, for drawing a presumption under the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, 1971 that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was 'properly addressed'. 16. In **Sali Mohan** it was noticed that, this Court vide Notification No. A1-14065/2007 dated 09.10.2007 has instructed that, the actual postal address of the parties, with correct pin code, should be shown in all proceedings filed in this Court and that, no proceedings shall be received without such actual postal address. The said notification was issued, O.P.(RC)NO.78 OF 2020 10 when this Court noted that, the address of the parties given in the memorandum of writ petition, appeal, etc., are not the actual address, as a result of which, the notice and other articles sent by post in such address are returned by the Postal Department stating that 'addressee not known'. 17. Part III of the Indian Post Office Rules, 1933 deals with registration of postal articles. As per sub-rule (1) of Rule 64 of the Indian Post Office Rules, 1933, if the sender of a registered article pays at the time of posting the article a fee of rupee three in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgment which shall be signed in ink by the addressee or his duly authorised agent or if the addressee refuses to so sign shall be accompanied by statement to the effect that the addressee or his duly authorised agent has refused to so sign. As per sub-rule (2) of Rule 64, no article for which an acknowledgment is required under sub-rule (1) shall be accepted for registration unless it bears the name and address of the sender and is accompanied by a prescribed form of acknowledgment duly filled in and securely fastened to O.P.(RC)NO.78 OF 2020 11 such article, and unless the article bears the superscription Acknowledgment Due on the address side. 18. The name and address of the landlord or that of the tenant furnished in every application for eviction under Section 11 or 11A of the Kerala Buildings (Lease and Rent Control) Act should be complete in all respect, which should specify definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, with correct pin code. In view of the provisions under Rule 7(1) and Rule 12(3) of the Kerala Buildings (Lease and Rent Control) Rules, the Rent Control Courts shall ensure that the name and address of the landlord or that of the tenant furnished in every application for eviction filed under Section 11 or 11A of the Act are complete in all respect, specifying definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, with correct pin code. O.P.(RC)NO.78 OF 2020 12 19. In cases in which the order passed by the Rent Control Court or the judgment of the Rent Control Appellate Authority contains incomplete address of the landlord or the tenant, the complete address of the landlord or the tenant with correct pin code shall be shown in the cause title of the memorandum of Rent Control Revision filed before this Court under Section 20 of the Act, after making a statement to that effect in the memorandum of revision. 20. In cases in which cause title of a Rent Control Petition pending before the Rent Control Court or the cause title of a Rent Control Appeal pending before the Rent Control Appellate Authority contains incomplete address of the landlord or the tenant, the Rent Control Court or the Rent Control Appellate Authority, as the case may be, shall require the landlord to file an application to amend the cause title to show the complete address of the landlord or the tenant, as the case may be, with correct pin code. 21. Registry to communicate a copy of this order to all Rent Control Courts and Rent Control Appellate Authorities in Kerala, through Registrar (District Judiciary), for information O.P.(RC)NO.78 OF 2020 13 ## and compliance. 22. The challenge made in this original petition is against Exts.P7 to P11 orders of the Rent Control Court, whereby Exts.P2 to P6 interlocutory applications filed by the petitioner-landlord stand rejected. The landlord filed R.C.P.No.20 of 2018 before the Rent Control Court seeking eviction of the tenant from the petition schedule shop room, under Sections 11(2)(b), 11(4)(v) and 11(8) of the Act. The Rent Control Court ordered joint trial of R.C.P.No.20 of 2018 along with three connected matters. On 05.02.2020, the landlord was examined as PW1. After closing the evidence of the landlord, the tenants in R.C.P.No.19 of 2018 and R.C.P.No.6 of 2019 were examined. In O.S.No.67 of 2020 filed by the landlord before the Munsiff Court, Wadakkancherry, against the respondent herein and also the tenants of the other three shop rooms, the landlord has taken out an ex parte commission. Based on the order in I.A.No.2 of 2020 in O.S.No.67 of 2020, the Advocate Commissioner conducted inspection, on 12.02.2020, of the petition schedule shop room in R.C.P.No.20 of 2018 and also the shop rooms in the O.P.(RC)NO.78 OF 2020 14 connected Rent Control Petitions, and submitted Ext.P12 report, which is one dated 24.02.2020. According to the landlord, during the pendency of R.C.P.No.20 of 2018 the tenants attempted to sub-let the petition schedule shop rooms in R.C.P.No.20 of 2018 and connected matters, by joining the rooms. In such circumstances, the landlord filed O.S.No.67 of 2020 before the Munsiff Court seeking permanent injunction. The landlord filed Exts.P2 to P6 interlocutory applications in R.C.P.No.20 of 2018 in order to bring on record Ext.P12 report of the Advocate Commissioner, by summoning the Advocate Commissioner. 23. As discernible from the impugned orders, the Advocate Commissioner deputed by the Rent Control Court has already submitted a report and plan, which have already been marked as Ext.C1 and C1(a) through the Advocate Commissioner. Thereafter, the landlord filed O.S.No.67 of 2020 before the Munsiff Court, against the respondent herein and also the tenants of the other three shop rooms, in which he has taken out an ex parte commission. The Advocate Commissioner conducted inspection, on 12.02.2020, who O.P.(RC)NO.78 OF 2020 15 submitted Ext.P12 report dated 24.02.2020. After considering the submissions made by the leaned counsel on both sides, we find that, there is total lack of bona fides on the part of the landlord in securing Ext.P12 report of the Advocate Commissioner in an original suit filed during the pendency of the Rent Control Petitions. The conduct of the landlord in this regard has to be deprecated in the strongest terms and we do so. After considering the rival contentions, the Rent Control Court found no sufficient grounds to allow Exts.P2 to P6 interlocutory applications and accordingly, dismissed those applications by Exts.P7 to P11 orders. The reasoning of the Rent Control Court in Exts.P7 to P11 orders is neither perverse nor patently illegal. 24. 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), O.P.(RC)NO.78 OF 2020 16 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. 25. 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. 26. 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 O.P.(RC)NO.78 OF 2020 17 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 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 O.P.(RC)NO.78 OF 2020 18 duty or in flagrant abuse of fundamental principles of law or justice. 27. 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. 28. 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 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 O.P.(RC)NO.78 OF 2020 19 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. 29. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, no interference is warranted on Exts.P7 to P11 orders of the Rent Control Court, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, since it cannot be said that while passing such orders the Rent Control Court committed any manifest error or its reasoning in those orders is palpably perverse or patently unreasonable. In the result, the challenge made in this original petition against Exts.P7 to P11 orders of the Rent Control Court fails. O.P.(RC)NO.78 OF 2020 20 30. The learned counsel for the petitioner-landlord would submit that the Rent Control Petition is of the year 2018 and therefore, seek an order for time bound disposal. The learned counsel for the respondent-tenant would point out that final disposal of the Rent Control Petition was delayed only because of an untenable challenge made by the landlord against Exts.P7 to P11 orders of the Rent Control Court. 31. Though interference is declined on Exts.P7 to P11 orders, considering the fact that the Rent Control Petition is of the year 2018, the Rent Control Court, Wadakkancherry is directed to finally dispose of R.C.P.No.20 of 2018 along with connected matters, as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this judgment. The original petition is disposed of with the above direction. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** MIN O.P.(RC)NO.78 OF 2020 21 ## **APPENDIX OF O.P.(RC)NO.78 OF 2020** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **A COPY OF R.C.P. NO. 20/2018 PENDING BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **EXHIBIT P2** **A TRUE COPY OF I.A. NO. 5/2020 IN R.C.P.NO. 20/2018 DATED 28.02.2020 FILED BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **EXHIBIT P3 A TRUE COPY OF I.A. NO. 6/2020 IN R.C.P.NO. 20/2018 DATED 28.02.2020 FILED BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **EXHIBIT P4** - **A TRUE COPY OF I.A. NO. 7/2020 IN R.C.P.NO. 20/2018 DATED 28.02.2020 FILED BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** - **EXHIBIT P5 A TRUE COPY OF I.A. NO. 8/2020 IN R.C.P.NO. 20/2018 DATED 28.02.2020 FILED BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** - **EXHIBIT P6 A TRUE COPY OF I.A. NO. 9/2020 IN R.C.P.NO. 20/2018 DATED 28.02.2020 FILED BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **EXHIBIT P7 A ORDER DATED 09.03.2020 IN I.A. NO. 5/2020 IN R.C.P.NO. 20/2018 PENDING BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **EXHIBIT P8 A COPY OF ORDER DATED 09.03.2020 IN I.A. NO. 6/2020 IN R.C.P.NO. 20/2018 PENDING BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** O.P.(RC)NO.78 OF 2020 22 ## **EXHIBIT P9** ## **EXHIBIT P10** ## **EXHIBIT P11** **EXHIBIT P12** **A COPY OF ORDER DATED 09.03.2020 IN I.A. NO. 7/2020 IN R.C.P.NO. 20/2018 PENDING BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **A COPY OF ORDER DATED 09.03.2020 IN I.A. NO. 8/2020 IN R.C.P.NO. 20/2018 PENDING BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **A COPY OF ORDER DATED 09.03.2020 IN I.A. NO. 9/2020 IN R.C.P.NO. 20/2018 PENDING BEFORE THE RENT CONTROL COURT, WADAKKANCHERRY.** **A COPY OF THE ADVOCATE COMMISSION REPORT FILED BY ADV. SASIKUMAR IN OS 67/2020.**