C. D. Rappai v. Merina Sunny 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 ``` ``` TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944 ``` ``` OP (RC) NO. 109OF 2022 ``` ``` RCP.No.81 of 2020 ON THE FILES OF RENT CONTROL COURT ``` ``` (MUNSIFF), THRISSUR ``` ``` PETITIONER/1ST RESPONDENT: ``` ``` MR.C.D. RAPPAI, AGED 62 YEARS “CEEDEES ELECTRICALS”, T.C.NO.35/2126, POST OFFICE ROAD, THRISSUR, PIN - 680001 ``` ``` BY ADV P.K.SAJEEV ``` ## **`RESPONDENTS/PETITIONERS 1 TO 3 & 2ND RESPONDENT:`** ``` 1 MRS.MERINA SUNNY, AGED 73 YEARS W/O.LATE MR.SUNNY A. PALLAN, PALLAN HOUSE, CHEMBUKKAVU VILLAGE, ERINJERY ANGADI, THRISSUR DISTRICT, PIN - 680001 2 MR.PRADEEP S. PALLAN, AGED 49 YEARS S/O. LATE SUNNY A. PALLAN, PALLAN HOUSE, CHEMBUKKAVU VILLAGE, ERINJERY ANGADI, THRISSUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MERINA SUNNY, AGED 73 YEARS, W/O. LATE PALLAN, PALLAN HOUSE, CHEMBUKKAVU VILLAGE, ERINJERY ANGADI, THRISSUR DISTRICT, PIN - 680001 3 MR.PRAVEEN S. PALLAN AGED 44 YEARS S/O. LATE SUNNY A. PALLAN, PALLAN HOUSE, CHEMBUKKAVU VILLAGE, ERINJERI ANGADI, THRISSUR DISTRICT, PIN - 680001 4 MRS.HENCY S. PALLAN AGED 50 YEARS ``` OP (RC) NO. 109 OF 2022 2 ``` D/O. LATE MR. SUNNY A. PALLAN, PALLAN HOUSE, CHEMBUKKAVU VILLAGE, ERINJERY ANGADI, THRISSUR DISTRICT, PIN - 680001 ``` ## **`OTHER PRESENT:`** ``` SRI G. SREEKUMAR (CHELUR) - RESPONDENTS 1 TO 4 ``` **`THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING` :** 3 OP (RC) NO. 109 OF 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the 1[st] respondent–tenant in R.C.P.No.81 of 2020 on the files of the Rent Control Court (Munsiff), Thrissur, which is one filed by respondents 1 to 3 herein seeking eviction of the tenant from the petition schedule building under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. One of the co-owners, i.e., the 2[nd] respondent in R.C.P.No.81 of 2020, is arrayed as the 4[th] respondent in this OP(RC). In R.C.P.No.81 of 2020, the tenant filed Ext.P2 objection, which is one dated 28.09.2021. The landlords filed O.S.No.1486 of 2020 before the II Additional Munsiff Court, Thrissur, seeking permanent prohibitory injunction restraining the defendant- tenant from effecting any construction in the shop room in question. The said suit is one filed on 24.07.2020. On the other hand, R.C.P.No.81 of 2020 is one filed on 16.09.2020. The 3[rd] respondent herein has also filed W.P.(C)No.18786 of 2020 before this Court, seeking a writ of mandamus commanding Thrissur Municipal Corporation, represented by its Secretary, not to grant any building permit to OP (RC) NO. 109 OF 2022 4 the 3[rd] respondent herein-tenant; and for other consequential reliefs. The said writ petition is now pending before this Court. The petitioner has filed this Original Petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India, seeking an order directing the Rent Control Court to keep in abeyance all further proceedings in R.C.P.No.81 of 2020 till a final decision is arrived at in O.S.No.1486 of 2020 pending before the II Additional Munsiff Court, Thrissur and W.P.(C)No.18786 of 2020 pending before this Court. 2. On 24.06.2022, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondents through their counsel before the Rent Control Court, Thrissur, where R.C.P.No.81 of 2020 is pending consideration. 3. Heard Sri.P.K.Sajeev, learned counsel for the petitioner-tenant and Sri.G.Sreekumar Chelur, the learned counsel for the respondents–landlords. 4. The issue that arises for consideration in this original petition is as to whether the petitioner is entitled for an order directing the Rent Control Court to keep in abeyance further OP (RC) NO. 109 OF 2022 5 proceedings in R.C.P. No.81 of 2020, till a final decision is arrived at in O.S.No.1486 of 2020 on the file of the II Additional Munsiff Court, Thrissur and in W.P.(C)No.18786 of 2020 pending before this Court. 5. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. Section 11(2) of the Act deals with eviction on the ground of arrears of rent. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting 6 OP (RC) NO. 109 OF 2022 the application thereof by him. As per the first proviso to Section 11(2)(b), an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. 6. Section 11(3) of the Act deals with eviction on the ground of bona fide need. As per Section 11(3), a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, 7 OP (RC) NO. 109 OF 2022 if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 7. Section 11(4)(ii) of the Act deals with eviction on the ground of reducing value or utility of the building. As per Section 11(4)(ii) a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently. 8. In **Dineshan Pillai P.B. v Joseph @ Jose [2019 (3) KHC, 204]** , a Division Bench of this Court held that the pendency of a civil suit, seeking a decree for realisation of arrears of rent or existence of a decree for the same does not preclude the landlord from instituting a Rent Control Petition seeking an order of eviction under Section 11(2)(b) of the Act, on the ground of arrears of rent for the same period. Paragraphs 9 and 10 of that judgment read thus: “9. On a bare reading of Section 11(2)(a) and (b) of the Act, it is well discernible that the said provision is a ground to evict the tenant, on the ground that the tenant OP (RC) NO. 109 OF 2022 8 has not paid or offered arrears of rent, despite the receipt of the statutory notice issued to him, demanding arrears of rent, under section 11(2)(b) of the Act, and the said provision is not intended for realisation of the arrears of rent. Under Section 11 (2)(b) of the Act, no executable order can be passed to realise the arrears of rent found by the Rent Control Court. As per Section 11(2)(c) of the Act, the tenant has an option either to deposit the arrears of rent within one month from the date of order or further period, if allowed, so as to vacate the order of eviction passed against him under section 11(2)(b) of the Act or to vacate the premises, without paying the arrears of rent. Certainly, the tenant will get the order of eviction vacated under section 11(2) (c) of the Act, if he deposits the arrears of rent with interest and cost of proceedings within the specified time. Thus, the order under section 11(2)(c) is not an order to realise the arrears of rent, and it is an order to get an order of eviction vacated, if the tenant desires so. The landlord will get arrears of rent, only if the tenant opts under section 11(2)(c) of the Act. 10. On the other hand, the suit for realisation of arrears of rent is intended for obtaining an executable decree to realise the arrears of rent only, through the process of Court. Thus, both proceedings are different, distinct and intended for different purposes and those proceedings are mutually exclusive. Therefore, the pendency of a suit for realisation of arrears of rent or existence of a decree for arrears of rent does not preclude the landlord from instituting a Rent Control Petition, seeking an order of eviction on the ground that the tenant has not paid or offered arrears of rent for the same period. Notwithstanding the existence of a decree for realisation of arrears of rent, the landlord can institute a Rent Control Petition, under section 11(2)(b) before the Rent Control Court, seeking an order of eviction, if the tenant has not paid the decree amount, covered by the statutory notice issued under section 11(2)(b) of the Act, with 6% interest and postal charges within a period of 15 days from the date of receipt of notice. Thus, the landlord can proceed with the Rent Control Petition, seeking an order of eviction on the ground of the arrears OP (RC) NO. 109 OF 2022 9 of rent, notwithstanding the pendency of a suit for realisation of that arrears of rent or the existence of a decree for realisation of that amount, as arrears of rent.” 9. In view of the provisions under Section 11 of the Act and also the law laid down by the Division Bench in **Dineshan Pillai P.B. [2019 (3) KHC, 204]** we find no merit in the contention of the petitioner-tenant that the Rent Control Court has to keep in abeyance further proceedings in R.C.P.No.81 of 2020, till a final decision is arrived at in O.S.No.1486 of 2020 pending before the II Additional Munsiff Court, Thrissur and W.P.(C)No.18786 of 2020 pending before this Court. 10. 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 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, 10 OP (RC) NO. 109 OF 2022 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. ## 11. 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 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. ## 12. 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 11 OP (RC) NO. 109 OF 2022 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 quasi-judicial 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, the petitioner is not entitled to the relief sought for in this original petition. In the result, the original petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** AS OP (RC) NO. 109 OF 2022 12 ## **`APPENDIX OF OP (RC) 109/2022`** ## **`PETITIONER'S EXHIBITS:`** ``` EXHIBITP1 TRUE COPY OF THE PETITION IN R.C.P. NO.81/2020 ON THE FILES OF RENT CONTROL COURT, THRISSUR ``` ``` EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN R.C.P.NO.81/2020 ON THE FILES OF RENT CONTROL COURT, THRISSUR ``` ``` EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S.NO.1486/2020 BEFORE THE IIND ADDITIONAL MUNSIFF COURT, THRISSUR EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.1486/2020 BEFORE THE IIND ADDITIONAL MUNSIFF COURT, THRISSUR EXHIBIT P5 TRUE COPY OF THE WRIT PETITION IN W.P(C)NO.18786/2020 ON THE FILES OF THIS HONOURABLE COURT ```