K. Mohan v. K.H. Jayaprakash

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 OP (RC).No. 3641 of 2012 (O) ----------------------------- AGAINST THE JUDGMENT IN RCP.118/2009 OF RENT CONTROL COURT, ERNAKULAM PETITIONER(S): -------------------- K.MOHAN, AGED 48 YEARS SON OF LATE N.K.ACHARY, RESIDING AT PANDARKAVILKIZHAKKETHIL MUTHUKULAM SOUTH P.O. BY ADVS.SRI.P.B.SURESH KUMAR (SR.) SRI.LEO GEORGE RESPONDENT(S): ----------------------- K.H.JAYAPRAKASH SON OF K.G.HARI SHENOY G-3 KENT PARADISE MAY 1ST ROAD, THAMMANAM ERNAKULAM 682032. THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 05-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(R.C.) NO.3641/2012 APPENDIX ## PETITIONER(S) EXHIBITS : EXT.P1 : TRUE COPY OF R.C.P NO.118/2009 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM DATED NIL. - EXT.P2 : TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN R.C.P NO.118/2009 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM DATED NIL. EXT.P3 : TRUE COPY OF I.A.NO.5720/2012 IN R.C.P.NO.118/2009. - EXT.P4 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT TO EXHIBIT P3. EXT.P5 : TRUE COPY OF THE ORDER IN I.A.NO.5720/2012 IN R.C.P NO.118/2009 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM DATED 26/9/2012. ## RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** -------------------------------- O.P.(R.C.) No.3641 of 2012 ---------------------------------Dated this the 5[th] day of November, 2012 ## _**JUDGMENT**_ ## **K.T.Sankaran, J.** The question involved in this O.P.(R.C.) is whether the Rent Control Court exercising jurisdiction under the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Act') has jurisdiction to add an additional respondent in the Rent Control Petition on the application of the petitioner/landlord. 2. In the present case, it is stated in the Rent Control Petition that the landlord (Jayaprakash) and his friend Lalan jointly purchased the undivided ownership in a property having an extent of 4.372 cents consisting of a two storied building in which several rooms are there. It is also stated in the Rent Control Petition that the landlord also O.P.(R.C.) No.3641 of 2012 2 purchased undivided rights and absolute rights in certain adjoining rooms. Similarly, Lalan also purchased some of the rooms and undivided interest in the adjoining lands. In the Rent Control Petition, it is also stated that the landlord and Lalan have bonafide need to conduct a super market in the building. Some of the tenants did not agree to vacate. This necessitated the filing of the Rent Control Petitions to evict the tenants who did not agree to vacate. The tenant in R.C.P.No.118 of 2009 is K.Mohan, the petitioner in the present O.P.(R.C.). 3. According to the landlord, K.Mohan is the tenant of the petition schedule building. In the counter statement filed by Mohan, he stated thus : “8. The averment in paragraph 4 of the Rent Control Petition that respondent is the building tenant in occupation of the ground floor building bearing door No.34/2433 is incorrect and false. O.P.(R.C.) No.3641 of 2012 3 ## xxxxx 12. .............In this context, this respondent re-iterates that he is not a tenant in the petition schedule room under the petitioner.” 4. A Commissioner was appointed to inspect the petition schedule building. The Commissioner stated in the report that K.Mohan is the tenant of the petition schedule building and he is conducting a textile shop therein. The report further shows that the tenant made a request to the Commissioner to note the dimensions of the petition schedule room. Though an objection was filed to the Commissioner's report, Mohan did not deny the statement that he was present at the time of inspection by the Commissioner or the statement that he wanted the Commissioner to note certain details. However, in paragraph 3 of the objection, Mohan stated thus : “The statement of the Advocate Commissioner in paragraph 4 of his report that O.P.(R.C.) No.3641 of 2012 4 one K.Mohan is in occupation of door No.34/2423 of the Corporation of Kochi is not correct and is made only by perusing the petition in R.C.P.No.118 of 2009.” 5. It is submitted that the Rent Control Court passed an order for joint trial of the connected Rent Control Petitions including R.C.P.No.118 of 2009. The trial was commenced and the landlord was examined. Thereafter, the landlord filed I.A.No.5720 of 2012 to implead Sreekala.A.S., wife of Mohan as additional second respondent in the Rent Control Petition. In the affidavit accompanying the petition, it was stated thus : “In the objection, though he stated that he is not the tenant of the petition schedule premises, he never disclosed the fact that his wife is the tenant until he cross examined me during trial. Only during the cross examination, he suggested that his wife Sreekala.A.S. is the tenant of the petition schedule premises.” 6. In the affidavit, it was stated that the landlord O.P.(R.C.) No.3641 of 2012 5 apprehends obstruction by Sreekala, the wife of Mohan at the time of delivery of the building in execution. It was also stated in the affidavit that the application for impleading was filed accepting the contention put forward by Mohan that his wife is the tenant of the petition schedule building. 7. I.A.No.5720 of 2012 was opposed by Mohan. It was contended in the objection thus : “The averment in paragraph 2 of the affidavit to the effect that I did not disclose as to who is the real tenant of the petition schedule room till I cross examined the petitioner cannot be sustained as a ground for allowing the above Interlocutory Application.” 8. The Rent Control Court allowed I.A.No.5720 of 2012 by the order dated 26[th] September, 2012 which is under challenge in this O.P.(R.C.). The Rent Control Court noticed that it is only at the time of cross examination of the landlord, O.P.(R.C.) No.3641 of 2012 6 Mohan disclosed that his wife took the building on lease. It was also noticed that the plea of non-joinder of necessary parties was not raised at the earliest opportunity by Mohan. In the counter filed in the Rent Control Petition, all possible contentions were taken by Mohan except disclosing that his wife is the tenant. He also stated in the counter that in case an order of eviction is passed, the tenant would be put to great hardship. The Rent Control Court held that impleadment of the wife of Mohan as an additional respondent would not cause any prejudice to Mohan or his wife who is sought to be impleaded. The court below also held that impleadment of the additional respondent is necessary to avoid multiplicity of proceedings and for a just decision in the Rent Control Petition. 9. The learned senior counsel for the petitioner submitted that the Rent Control Court has no jurisdiction to allow an application for impleading. The counsel submitted that the Rent Control Court has only the specified powers under Section 23 of the Rent Control Act. It cannot exercise a jurisdiction O.P.(R.C.) No.3641 of 2012 7 which is not provided in any of the clauses (a) to (k) in Sub Section (1) of Section 23. The counsel also contended that the power to add parties as provided under Rule 10(2) of Order 1 of the Code of Civil Procedure is not relating to procedure alone, but it is substantive as well. Therefore, the Rent Control Court cannot have the inherent jurisdiction to allow an application for impleading additional parties. 10. Sub Section (1) of Section 23 of the Rent Control Act reads as follows : - “23. Summons, etc :- - (1) 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 (5 of 1908), when trying a suit in respect of the following matters- O.P.(R.C.) No.3641 of 2012 8 - (a) discovery and inspection - (b) enforcing the attendance of witnesses, and requiring the deposits of their expenses ; - (c) compelling the production of documents ; - (d) examining witnesses on oath ; - (e) granting adjournments ; - (f) reception of evidence taken on affidavit ; - (g) issuing commission for the examination of witnesses and for local inspection ; - (h) setting aside exparte orders ; - (i) enlargement of time originally fixed or granted ; - (j) power to amend any defect or error in orders or proceedings ; and - (k) power to review its own order.” 11. Sub Section (1) of Section 23 provides that the Rent Control Court and the Appellate Authority shall have the powers which are vested in a Court under the Code of Civil Procedure while trying a suit in respect of the matters mentioned in clauses (a) to (k). Section 23 does not bar the exercise of any other power by the Rent Control Court under the Code of Civil Procedure. It is true that Section 22 provides for application of O.P.(R.C.) No.3641 of 2012 9 Section 146 and Order 22 of C.P.C. in the case of proceedings under the Rent Control Act. That certain powers are specified either in Section 22 or in Section 23 does not mean that the Rent Control Court lacks the inherent power to do substantial justice between the parties and to decide the matter before it in a proper manner. Originally, under the Act, the designation of the Rent Control Court was as Rent Controller and he was a persona designata. Subsequently, the nomenclature was changed and it was provided that the primary authority is the Rent Control Court. The designation of the appellate court continues to be “the Appellate Authority” under the Rent Control Act. In Gopalan vs. Aboobacker (1995 (2) KLT 205) = [Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (AIR 1995 Supreme Court 2272), the Supreme Court held that the Appellate Authority under the Rent Control Act has all the trappings of a court and the provisions of Section 5 of the Limitation Act would apply in the matter of condoning the delay in filing the appeal. O.P.(R.C.) No.3641 of 2012 10 12. In Cheru Ouseph v. Kunjipathumma (1981 KLT 495), Justice M.P.Menon considered the question whether the Rent Control Court has jurisdiction to restore a Rent Control Petition which was dismissed for default. Answering in the affirmative, it was held thus : “5. .................. A new system of dispensation of justice has thus been growing up, even overshadowing the ordinary courts in its reach and range ; and in such a situation, is it wise or useful to still adhere to the theory that Tribunals are little bodies with only some of the powers of a court, if at all granted by the legislature? If they are equally important as the courts of the land by reason of their discharging the same functions though in their respective specialised fields, why should they be denied the powers ordinarily available to courts, so long as such powers are not specifically denied to them by the statutes, in the matter of administering justice? O.P.(R.C.) No.3641 of 2012 11 6. This is not to say that the difference between Tribunals and courts could or should be ignored, but to suggest that the traditional approach to the question of the Tribunals' powers requires reconsideration if their usefulness is not to be belittled. xxxxxxxx 12. What, after all, is the inherent power saved Section 151 of the Code of Civil Procedure? A court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the court must have jurisdiction over the proceedings before it can exercise the inherent power ; but when that is granted, its power to advance the cause of justice by relying on unenumerated powers - on inherent or residuary power, as it is often called - cannot be denied to it. And therefore, where a Tribunal exercises the same kind of power i.e., part of the judicial power of the State, as the Supreme Court has observed, why O.P.(R.C.) No.3641 of 2012 12 should it be denied similar inherent or residuary powers ? If you do not like the name, call it by another ; but so long as the Tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice............................ 13. I would therefore say, as indicated by the Supreme Court in Dhani Devi's case (AIR 1970 SC 759), that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a Tribunal so that it may effectively exercise its judicial function.” 13. In Abdulla v. Rent Controller (1984 KLT 865), Justice U.L.Bhat followed the decision in Cheru Ouseph and held that the Rent Control Court has power to amend the Rent Control Petition. Almost all the decisions rendered by this Court earlier were referred to in Abdulla v. Rent Controller (1984 KLT 865) and it was held thus : O.P.(R.C.) No.3641 of 2012 13 “12. Whichever way one looks at it, there could be no doubt that the Rent Controller has jurisdiction or power to allow amendment of pleadings in appropriate cases. The source of power could be traced to Section 23(1)(j) of the Act or the inherent or residuary powers of the Rent Controller as a court. If it be the former, where the existence of a defect or error is made out, the Rent Controller is competent to allow an amendment to cure the defect or if it is the latter, the Rent Controller has always the jurisdiction to allow an amendment as long as it is bona fide and necessary to do justice between the parties and as long as it does lead to irreparable injury to the opposite party.” 14. In Dr.P.V.Thomas v. M.V.Rajan and others (1984 KLT 147), a learned Single Judge of this Court held that a Commissioner cannot be appointed in a Rent Control Petition to assess the value of improvements since clause (g) of Section 23 (1) provides for issuing Commission for examination of witnesses and for local inspection alone and not for assessing value of improvements. In Ebrahim Ismail Kunju v. Phasila Beevi O.P.(R.C.) No.3641 of 2012 14 (1991 (1) KLT 861), a Division Bench of this Court held that the Rent Control Court has power to permit joint trial of cases. The Division Bench held thus : “There is a larger contention urged on behalf of the revision petitioner. That is about the absence of an enumerated power of the Rent Controller in permitting joint trial of the cases. It does not appeal to us. A narrower approach to the Act will prompt an authority to search the limited space of the statute and its scheme to find out an enabling power in relation to the joinder of trials. Such a narrow approach does not commend over itself for our acceptance.” 15. In Ramanath Haneefa v. Hamsa (1997 (2) KLT SN 53 Case No.55), it was held that the Rent Control Court has an inherent power to allow amendment of pleadings. Following the decision in Cheru Ouseph v. Kunjipathumma (1981 KLT 495), a Division Bench in Jullunder D. & N.Mfg. Co. v. Jayadevan (1999 (1) KLT 107) held that the authorities under the Rent Control Act have the power to restore an application dismissed for O.P.(R.C.) No.3641 of 2012 15 default. The Division Bench held that neither Section 23 nor any other provision of the Act is contradictory to the procedural provisions contained in Order 9 Rule 9 of C.P.C. Another Division Bench in Abdul Hakkim v. Arumugham and others (ILR 1996(3) Kerala 358) also relied on Cheru Ouseph vs. Kunjipathumma (1981 KLT 495) and held that the Rent Control Court has jurisdiction to restore an application which was dismissed for default. 16. In Kodiyil Musthafa Haji vs. Yahiya (1998 (1) KLT SN 51 Case No.47) (we went through the judgment in full), the landlord filed an application for amending the boundaries in the Rent Control Petition, for impleading supplemental fifth respondent and for incorporating additional grounds under Section 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act. The application was allowed by the Rent Control Court. The Division Bench held that the Rent Control Court has power to allow amendment of Rent Control Petition, for impleading supplemental respondent and for incorporating O.P.(R.C.) No.3641 of 2012 16 additional grounds. 17. We are not inclined to accept the contention raised by the learned counsel for the petitioner that Rule 10(2) of Order 1 C.P.C. is substantive in nature. Rule 10(2) empowers the court, either upon or without the application of either party, to strike out the name of any party who was improperly joined whether as plaintiff or defendant and to add the name of any person who ought to have been joined. The purpose of exercise of power under Rule 10(2) of Order 1 C.P.C. is for an effectual and complete adjudication and settlement of all the questions involved in the suit. No right as such is conferred on a party under Rule 10(2) nor any liability is cast on any party. Order 1 Rule 10(2) is aimed at : (a) avoidance of multiplicity of proceedings and (b) effectual and complete adjudication and settlement of all the questions involved in the suit. That is quite a procedural process. No adjudication of substantive rights of parties are involved in the matter of striking out or adding of parties. In respect of a procedural matter, any court or Tribunal O.P.(R.C.) No.3641 of 2012 17 would have inherent power to allow any application which it considers necessary for proper adjudication of the dispute and for the effective disposal of the case. The power is so inherent that it need not be specifically conferred. So long as there is no prohibition under the Rent Control Act, the jurisdiction of the Rent Control Court takes in inherent power as well. In the peculiar facts and circumstances of the case, the Rent Control Court was justified in allowing the application. The Rent Control Petition was filed in the year 2009. For about three years, the parties were not aware of the real facts of the case. The method of drafting of the counter shows astuteness in drafting, bordering suppression of real facts. The respondent in the Rent Control Petition did not provide the necessary facts to the court and the opposite party. Only at the fag-end of the trial, the respondent in the Rent Control Petition made a suggestion in cross examination of the landlord that the wife of the respondent is the tenant. The respondent himself was a tenant in respect of another room in the same building. The landlord wanted vacant O.P.(R.C.) No.3641 of 2012 18 possession of all the rooms for the purpose of landlord's occupation. If eviction in respect of one room fails, the very purpose of filing of the other Rent Control Petitions also would be defeated. The respondent in the Rent Control Petition, by his clever way of doing things not only misled the petitioner, but the court as well. In the peculiar circumstances, the court thought it fit to implead the wife of the respondent in the Rent Control Petition to avoid multiplicity of proceedings and to effectually adjudicate upon the disputes involved in all the cases. The order passed by the Rent Control is legal and proper and no interference is called for in this O.P.(R.C.). Accordingly, the O.P. (R.C.) is dismissed inlimine. **K.T.SANKARAN JUDGE** **M.L.JOSEPH FRANCIS** **JUDGE** csl