K.V.Sasi Varma and K.V. Rajasree Varma v. V. Parthasaradi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943 OP (RC) NO. 51 OF 2019** **AGAINST THE ORDER IN I.A.NO.1636 OF 2018 IN RCA NO.99/2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE), KOZHIKODE** ## **PETITIONERS:** - **1 K.V.SASI VARMA AGED 61 YEARS S/O. SUBHADRA KOVILAMMA, SREERAJ HOUSE, POST MANKAVU, VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673007.** - **2 K.V. RAJASREE VARMA AGED 51 YEARS D/O. SUBHADRA KOVILAMMA, PRANAVAM HOUSE, POST MANKAVU, VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673007.** **BY ADVS. V.T.MADHAVANUNNI SRI.V.A.SATHEESH M.VIVEK RABINDRANATH** ## **RESPONDENT:** **V.PARTHASARADI AGED 59 YEARS S/O. V.K. VISWANATHA PILLAI, AGED 59 YEARS, NO.8, KEERTHI NAGAR COLONY, KASABA AMSOM AND DESOM, PIN-73002, KOZHIKODE TALUK.** **BY ADV SMT.PRABHA R.MENON** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(RC)No.51 OF 2019 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners are the landlords in R.C.P.No.217 of 2014, a petition filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent-tenant from the petition schedule building. Challenging the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, the tenant filed R.C.A.No.99 of 2018 before the Rent Control Appellate Authority (District Judge), Kozhikode. In that appeal, the landlords filed I.A.No.1636 of 2018, an application under Section 12 of the Act, seeking an order directing the tenant to pay admitted arrears of rent. In that interlocutory application, the Appellate Authority passed Ext.P5 order dated 24.10.2018, whereby the tenant was directed to pay a sum of Rs.140/- as admitted arrears of rent from January, 2017 onwards and continue to pay rent for the subsequent months, within two weeks after it has become due. Feeling aggrieved by the order of the Rent Control Appellate Authority, to the extent of not ordering payment of admitted rent, at the rate Rs.10/- per sq.ft. for the extent of 636 sq.ft., the petitioners are before this Court in this original petition. 2. On 13.03.2019, when this original petition came up for O.P.(RC)No.51 OF 2019 3 admission, this Court admitted that matter on file. This Court issued notice to the respondents and called for LCR. This Court passed an interim order staying execution proceedings in R.C.A.No.99 of 2018, for a period of two weeks. The said interim order, which was extended from time to time, is still in force. 3. On 24.08.2021, when this original petition came up for consideration, Registry was directed to call for a report from the Rent Control Appellate Authority, Kozhikode, as to the present status of R.C.A.No.50 of 2018 and also the time limit required for its final disposal. 4. Pursuant to the order of this Court dated 24.08.2021, a report dated 06.09.2021 of the Rent Control Appellate Authority is placed on record, wherein it is stated that R.C.A.No.50 of 2018 is being adjourned awaiting records in R.C.A.No.99 of 2018. Both the appeals can be disposed of within one month from the date of receipt of the records from this Court. 5. Heard the learned counsel for the petitioners-landlords and also the learned counsel for the respondent-tenant. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on the order of the Rent Control Appellate Authority dated 24.10.2018 in O.P.(RC)No.51 OF 2019 4 I.A.No.1636 in R.C.A.No.99 of 2018, whereby the Rent Control Appellate Authority, while allowing the interlocutory application filed under Section 12 of the Act directed the tenant to pay the monthly rent, only at the rate of Rs.140/- per month, instead of the fair rent fixed in the proceedings initiated under Section 5 of the Act in respect of which R.C.A.No.50 of 2018 is pending before the Rent Control Appellate Authority. 7. Section 12 of the Kerala Buildings (Lease and Rent Control) Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per sub-section (1) of Section 12, no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the A ppellate A uthority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent 5 O.P.(RC)No.51 OF 2019 Control Court or the Appellate Authority, as the case may be. As per sub-section (2) of Section 12, the deposit under sub-section (1) shall be made within such time as the c ourt may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to sub-section (2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. 8. As per sub-section (3) of Section 12 of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per sub-section (4) of Section 12, when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on 6 O.P.(RC)No.51 OF 2019 application made by him to the Rent Control Court or the Appellate Authority in that behalf. 9. In **Williams Daniel v. Jose [2019 (5) KHC 205]** the question that came up for consideration before the Division Bench of this Court is as to whether the expression "arrears of rent admitted" in Section 12 of the Kerala Buildings (Lease and Rent Control) Act could be interpreted to include the ‘fair rent’ fixed in a rent control proceeding under Section 5(1) of the Act also, apart from the contractual rent agreed to between the parties. The Division Bench held that, Section 12 of the Act enjoins a tenant to pay or deposit arrears of rent admitted by him in the proceeding, in order to entitle him to contest a petition for eviction or prosecute an appeal, whether the ground of eviction be under Section 11(2)(b) of the Act or any other grounds statutorily recognised under Section 11. Section 12 makes it very clear that liability of a tenant to pay or deposit rent is only to the extent he admits the rate of rent or period of default. The object of the Section appears to deny the defaulting tenant's right to resist eviction proceeding without his making payment or deposit of arrears of rent to the extent he has 7 O.P.(RC)No.51 OF 2019 acknowledged his liability. When the tenant denies the rate of rent or else disowns liability to pay or deposit arrears, the court has no power under Section 12 of the Act to conduct an enquiry and decide whether the denial is true or not. 10. In **Williams Daniel** the Division Bench held further that, once fair rent is fixed by the court, the rent agreed or stipulated by the parties to lease transaction comes to a total cessation and becomes unenforcible under law. The contractual rent is fully replaced by fair rent adjudged by the court in exercise of power vested in it under Section 5(1) of the Act. When the court adjudicates and quantifies the fair rent, the contract between the parties agreeing to any rate of rent or terms of payment vanishes for ever. The right or liability of parties to receive or pay the rent is thereafter governed by the terms of the order of court adjudicating the fair rent. Parties can no longer fall back upon the contractual rent and build his or her claim thereon, since the contract rent is non-existent under law. A tenant, in order to qualify to contest an eviction petition or prosecute an appeal, is bound to pay or deposit the arrears of fair rent already fixed by the court, as if the fair rent also means rent 8 O.P.(RC)No.51 OF 2019 admitted by the tenant and payable by him under Section 12 of the Act. The expression 'arrears of rent admitted' in Section 12 of the Act, when read in the light of the scheme of the Act and provisions for fixing fair rent, could only be construed as rent incapable of being disputed or denied by the tenant. When a party is legally dis-entitled or disabled under law from denying or disputing a fact which was decided by the court after adjudicatory process, it is as good as a fact admitted by him, since under no circumstance he can wriggle out of the binding decision, unless it could be shown to be inconclusive. A tenant bound by an order fixing fair rent under Section 5(1) of the Act, cannot contend that he is not liable under Section 12 to deposit fair rent greater than contract rent agreed to between parties, adjudged by the court nor can a landlord similarly contend that he is entitled to contract rent larger than the fair rent adjudged by the court. The fair rent adjudged by the Court is at par with the expression 'admitted rent' used in Section 12 inasmuch as parties are estopped or precluded from disowning or renouncing their liability to pay or receive fair rent as long as it has attained finality under law. 11. Viewed in the light of the provisions under Section 12 9 O.P.(RC)No.51 OF 2019 of the Act and also the law laid down in the decision referred to supra, it cannot be said that, while directing the tenant to remit rent at the rate of Rs.140/- per month, during the pendency of R.C.A.No.50 of 2018, the Rent Control Appellate Authority has committed any manifest error, warranting interference invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 12. 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, 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 O.P.(RC)No.51 OF 2019 10 over any court or tribunal constituted by or under any law relating to the Armed Forces. 13. 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. 14. 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 Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals O.P.(RC)No.51 OF 2019 11 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 duty or in flagrant abuse of fundamental principles of law or justice. ## 15. In **K.V.S. Ram v. Bangalore Metropolitan** 12 O.P.(RC)No.51 OF 2019 **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. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 16. 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 O.P.(RC)No.51 OF 2019 13 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. 17. 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 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 14 O.P.(RC)No.51 OF 2019 justice or the basic principles of natural justice have been flouted. 18. In such circumstaces, we find no reason to interfere with Ext.P5 order dated 24.10.2018 of the Rent Control Appellate Authority in I.A.No.1636 of 2018 in R.C.A.No.99 of 2018. 19. The learned counsel for the respondent-tenant would submit that the tenant had already paid arrears of monthly rent at the rate of Rs.140/- per month and that, the tenant shall continue to pay monthly rent, during the pendency of R.C.A.No.99 of 2018. 20. The above submission made on behalf of the respondent-tenant is recorded. 21. As per the report of the Rent Control Appellate Authority, the time limit required for the final disposal of R.C.A.No.99 of 2018 is one month from the date of receipt of the records. 22. Though interference is declined on Ext.P5 order, this original petition is disposed of by directing the Rent Control Appellate Authority to finally dispose of R.C.A.No.99 of 2018 along with R.C.A.No.50 of 2018, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Registry shall return the lower court records in R.C.A.No.99 of 2018, forthwith by messenger. Registry shall also verify whether O.P.(RC)No.51 OF 2019 15 the lower court records called for in R.C.R.Nos.159 and 177 of 2014 has already been retunred to the court below. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **K. BABU JUDGE** **yd** 16 O.P.(RC)No.51 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUECOPY OF THE AFFIDAVIT IN SUPPORT OF THE I.A NO.1636 OF 2018 IN R.C.A NO.99 OF 2018 U/S. 12 OF THE ACT 2 OF 1965 IN RENT CONTROL APPELLATE AUTHORITY(DISTRICT JUDGE) KOZHIKODE-I.A. EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A.NO.1636 OF 2018 IN R.C.A.NO.99 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY AND I ADDITIONAL DISTRICT JUDGE, KOZHIKODE. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN R.C.R.NO.159/2014 ON 06.06.2017 OF THE HIGH COURT OF KERALA, EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN R.C.P. NO.9 OF 2011 DATED 22.01.2018 OF THE RENT CONTROL COURT(MUNSIFF), KOZHIKODE IIP. EXHIBIT P5 CERTIFIED COPY OF THE JUDGMENT IN I.A NO.1636 OF 2018 IN R.C.A.NO.99 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY & I ADDITIONAL DISTRICT JUDGE, KOZHIKODE.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**