Dost Motors v. Sebin K. Xavier

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943 O.P.(RC)NO.85 OF 2021 AGAINST THE ORDER DATED 04.08.2021 IN I.A. NO.14 OF 2021 IN R.C.P.NO.138 of 2015 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF COURT -III), ERNAKULAM** **PETITIONER/S:** **DOSTH MOTORS, 39/5771, PARAMBALOTH ROAD, PANAMPILLY NAGAR, KOCHI - 682036, REPRESENTED BY ITS MANAGING PARTNER P.A.BENEDICT, AGED 54 YEARS, S/O. P.K. ANTONY, PARAMBALOTH HOUSE, K.C. JOSEPH ROAD, PANAMPILLY NAGAR, KOCHI, PIN – 682036.** **BY ADVS. INNOCENT FRANCIS PAPALI ANGEL BABU** ## **RESPONDENT/S:** **SEBIN K. XAVIER, S/O.K.A. XAVIER, KANJANAPPILLY HOUSE, THYKOODAM, ERNAKULAM.** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC) NO.85 OF 2021 2 ## **JUDGMENT** The petitioner is the respondent-tenant in R.C.P.No.138 of 2015 on the file of the Rent Control Court (Addl. Munsiff-III), Ernakulam, a petition filed by the respondent herein-landlord, under Section 11(2)(b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule building. The landlord has also filed R.C.P.No.41 of 2018, invoking the provisions under Section 5(1) of the Act, for fixation of rent, in respect of the aforesaid building. In R.C.P.No.138 of 2015, the tenant filed I.A.No.14 of 2021, an application under Section 151 of the Code of Civil Procedure, 1908, seeking an order to defer the proceedings in that R.C.P. for such time and until the rights are finally determined and decided under Section 5 of the Act in R.C.P. No.41 of 2018. By Ext.P5 order dated 04.08.2021, the Rent Control Court dismissed that application. Feeling aggrieved, the petitioner-tenant is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of O.P.(RC) NO.85 OF 2021 3 the Constitution of India. 2. Heard the learned counsel for the petitioner- tenant. 3. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P5 order dated 04.08.2021 of the Rent Control Court in I.A. No.14 of 2021 in R.C.P.No.138 of 2015, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. 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 O.P.(RC) NO.85 OF 2021 4 order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 5. 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. 6. In I.A. No.14 of 2021 in R.C.P. No.138 of 2015, the tenant prayed for an order to defer the proceedings in R.C.P. No.138 of 2015 filed by the landlord under Section 11(2)(b) and Section 11(3) of the Act, seeking an order of O.P.(RC) NO.85 OF 2021 5 eviction on the ground of arrears of rent and bona fide need, until the disposal of R.C.P.No.41 of 2018 filed under Section 5 of the Act, seeking fixation of fair rent. In I.A.No.14 of 2021, the tenant contended that the ground of eviction in R.C.P. No.138 of 2015, under Section 11(2)(b) of the Act, on the ground of arrears of rent, is directly and substantially in issue in R.C.P.No.41 of 2018 filed under Section 5 of the Act, for fixation of fair rent, in respect of the very same building. 7. Section 5 of the Act deals with determination of fair rent. As per Section 5(1), the Rent Control Court shall, on application of the tenant or landlord of a building, fix the fair rent for such building after holding such enquiry as it thinks fit. As per Section 5(2), in fixing the fair rent the court shall take into consideration the property tax or house tax fix ed for the building at the time of letting in the property tax register or house tax register of the local authority within whose area the building is situated. As per the proviso to Section 5(2), in the case of - (i) any residential building, or (ii) any non-residential building, O.P.(RC) NO.85 OF 2021 6 excepting a building to which fittings have been affixed or in which machinery have been installed and such fittings or machinery have been excluded. The fair rent fixed may in proper cases be lower than, but shall in no case exceed by more than fifteen per cent, the monthly rent on the basis of which the property tax or house tax for the building, prevailing two years immediately before the date of application, was fixed, or, if the building was not assessed to property tax or house tax before the said period of two years, the monthly rent on the basis of which the property tax or house tax prevailing immediately before the date of application was fixed. As per Section 5(3), if there is no property tax or house tax fixed for the building or if it is not based on a rental basis or if the building is situated in an area which is not a City, Municipality, Panchayat or in any other local authority, the fair rent shall be fixed after taking into consideration the prevailing rates of rent in the locality for similar accommodation in similar circumstances during the twelve months preceding the letting. 8. Section 11 of the of the Kerala Buildings (Lease O.P.(RC) NO.85 OF 2021 7 and Rent Control) Act deals with eviction of tenants. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. 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 the application thereof by him. As per the 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 O.P.(RC) NO.85 OF 2021 8 sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order. 9. As per Section 11(3) of the Act, 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 O.P.(RC) NO.85 OF 2021 9 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, 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. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 10. In R.C.P.No.138 of 2015, seeking an order of O.P.(RC) NO.85 OF 2021 10 eviction under Sections 11(2)(b) and 11(3) of the Act, the question that arises for consideration is as to whether the tenant has not paid or tendered the rent due by him in respect of the petition schedule building and whether the need projected in the rent control petition for eviction of the tenant, is bona fide. On the other hand, in R.C.P.No.41 of 2018 filed by the landlord under Section 5 of the Act for fixation of fair rent, the Rent Control Court has to fix fair rent of the petition schedule building, taking into consideration the relevant aspects, as required under Section 5(2) and (3) of the Act. 11. In the above circumstances, as rightly found by the Rent Control Court in the order dated 04.08.2021 in I.A.No.14 of 2021 in R.C.P.No.138 of 2015, the proceedings in R.C.P.No.41 of 2018 for fixation of fair rent under Section 5 of the Act is a separate proceedings, which is not at all connected with the adjudication of the matter involved in R.C.P.No.138 of 2015 and therefore, there is no need to defer the proceedings in R.C.P.No.138 of 2015, until disposal of R.C.P.No.41 of 2018. O.P.(RC) NO.85 OF 2021 11 12. Therefore, the reasoning of the Rent Control Court in Ext.P5 order is neither perverse or patently illegal, warranting an interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. In the result, the original petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **K. BABU JUDGE** MIN O.P.(RC) NO.85 OF 2021 12 ## **APPENDIX OF O.P.(RC) NO.85/2021** ## **PETITIONER EXHIBITS** ## **Exhibit P1** **TRUE COPY OF THE RENT CONTROL PETITION FILED IN RCP NO.138/2015 BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM.** ## **Exhibit P2** **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN EXHIBIT P1 RCP. THAT IS, RCP. NO.138/2015 BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM.** ## **Exhibit P3** **TRUE COPY OF THE RENT CONTROL PETITION FILED IN RCP NO.41/2018 BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM.** ## **Exhibit P4** **TRUE COPY OF THE IA NO. 14/2021 FILED IN RCP NO.138/2015 BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM.** ## **Exhibit P5** **TRUE COPY OF THE ORDER DATED 04.08.2021 PASSED IN IA NO.14/2021 IN RCP NO. 138/2015 BY HON'BLE RENT CONTROL COURT, ERNAKULAM.** ## **Exhibit P6** **TRUE COPY OF THE RP NO.20/2021 FILED IN IA NO. 14/2021 IN RCP NO.138/2015 BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM.**