M. Abdurahiman and Others v. Nalakandy Pillakkool Nadeer and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936 OP (RC).No. 114 of 2014 (O) ---------------------------AGAINST THE ORDER IN IA 195/14 IN RCP 39/2003 OF RENT CONTROL (MUNSIFF) COURT, KUTHUPARAMBA DATED 23-07-2014 R.C.A.NO.2/2005 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), THALASSERY DATED 22.7.2009 ## PETITIONER(S)/PETITIONERS: ----------------------------------------- 1. M.ABDURAHIMAN, SON OF ASSAN HAJI (DIED) (SUPPLEMENTAL) A.T.AYSHA, W/O.LATE ABDURAHIMAN AGED 54 YEARS, NO OCCUPATION, RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM, DESOM, THALASSERY TALUK. 2. A.T.ARIFA, AGED 28 YEARS D/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. 3. A.T.SELMA, AGED 28 YEARS D/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. 4. A.T.SHAREEFA, AGED 32 YEARS D/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. 5. A.T.ZUBAIR, AGED 30 YEARS S/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. 6. A.T.SUMIYATH, AGED 25 YEARS D/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. 7. A.T.NASSER, AGED 24 YEARS D/O LATE ABDURAHIMAN NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASI AMSOM, DESOM, THALASSERY TALUK. ## O.P.(R.C.) NO.114/2014 8. A.T.SUHARA, AGED 20 YEARS D/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. 9. A.T.SAINABA, AGED 18 YEARS D/O.LATE ABDURAHIMAN, NO OCCUPATION RESIDING AT ZUBAIR MANZIL, PAZHASSI, AMSOM DESOM, THALASSERY TALUK. BY ADVS.SRI.C.KHALID SRI.N.A.JOSEPH SRI.K.P.MOHAMED SHAFI SMT.K.S.HASEENA SRI.PHIJO PRADEESH PHILIP SRI.K.REEHA KHADER SMT.K.K.NESNA ## RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. NALAKANDY PILLAKKOOL NADEER, AGED 26 YEARS S/O.ABDULLA HAJI, BUSINESS, PAZHASSI AMSOM DESOM, P O URUVACHAL, THALASSERY TALUK-670101. 2. NALPPATTAANKANDY ABDUL BASHEER, AGED 41 YEARS S/O.KADER @ ABDUL KADER, BUSINESS "GAREEB NIVAS" KOLARI AMSOM, KALLUR DESOM P O MATTANNUR-670101. 3. NALAKANDY PILLAKKOLL THAHIRA, AGED 31 YEARS D/O.POKKU, NO OCCUPATION, "GAREEB NIVAS" KOLARI AMSOM KALLUR DESOM, P O MATTANNUR-670101. THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 03-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 114 of 2014 (O) -------------------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1: COPY OF THE ORDER IN RCP 39/2003 DATED 9/8/2004 OF THE RENT CONTROL COURT KUTHUPARAMBA. EXT.P2: COPY OF THE ORDER IN RCR NO.240/2009 DATED 23.12.2010 OF THE HIGH COURT OF KERALA EXT.P3 : COPY OF THE NOTICE AND ORDER OF SLP NO.16794/13 DATED 13/5/13 OF THE SUPREME COURT OF INDIA EXT.P4: COPY OF THE ORDER IN I.A.195/14 IN RCP NO.39/03 DATED 23/7/2014. RESPONDENT(S)' EXHIBITS : --------------------------------------- NIL //TRUE COPY// P.A. TO JUDGE **K.T.SANKARAN & ANIL K.NARENDRAN, JJ.** -------------------------------------- O.P.(R.C.) No.114 of 2014 -------------------------------------Dated this the 3[rd] day of September, 2014 ## _**JUDGMENT**_ ## **K.T.Sankaran, J.** The respondents/landlords filed R.C.P.No.39 of 2003 on the file of the Rent Control Court, Kuthuparamba, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act against Abdurahiman, the predecessor-in-interest of the petitioners herein. The Rent Control Court allowed the R.C.P. under Section 11(3) by the order dated 9[th] August, 2004. The tenants challenged that order in appeal before the Appellate Authority and in revision before the High Court. The High Court granted three months' time to the legal representatives of the tenants (petitioners herein) to vacate, on condition of their filing of undertaking to that effect. The tenants filed SLP (Civil) No.16794 of 2013 before the Honourable Supreme O.P.(R.C.)No.114/2014 2 Court, which was dismissed as per the order dated 9.5.2013. However, the Honourable Supreme Court granted six months' time to the tenants to vacate the petition schedule building on usual undertaking to be filed within four weeks from the date of the order. The tenants filed such an undertaking. As per the undertaking, the tenants had to vacate the building on or before 9.11.2013, but they did not vacate as undertaken by them. This necessitated the filing of an Execution Petition by the landlords. At that juncture, the landlords noticed that an error had crept in with reference to the building number in the schedule shown in the Rent Control Petition. For correcting the error in the Rent Control Petition, they filed I.A.No.195 of 2014, which was allowed by the Rent Control Court as per the order impugned in this O.P.(R.C.). 2. The number of the building shown in the Rent O.P.(R.C.)No.114/2014 3 Control Petition was MM20/259. Adjacent room in the building was let out by the landlords to one Ibrahim against whom the landlords had filed R.C.P.No.40 of 2003. The building number shown in R.C.P.No.40 of 2003 was MM20/260. However, that was subsequently corrected as MM10/308. Such a correction was not carried out in the Rent Control Petition in the present case, namely, R.C.P.No.39 of 2003. It is stated that on an enquiry made from the Municipality, the landlords came to know that MM20/259 was assigned to the building for election purposes and that the correct number is MM10/309. The landlords were also told by the Municipality that the temporary number assigned during election as MM20/259 would not be entered in the assessment register. Exhibit A18 extract of a Building Tax Assessment Register shows that the building number is MM10/309 and that it was in the possession of Abdurahiman, the predecessor-in- O.P.(R.C.)No.114/2014 4 interest of the petitioners herein. The tenants had produced Exhibits B16 to B19 in the Rent Control Court, the documents being the receipts for payment of building tax, PFA license fee and profession tax. The number of the building shown in Exhibits B16 to B19 is also MM10/309. Exhibit A16 application filed by the landlords in R.C.P.No.40 of 2003 to correct the building number was allowed by the Rent Control Court as per Exhibit A11 order and the building number in that case was corrected as MM10/308. On the basis of these clinching documentary evidence, the court below held that the number of the building shown in the Rent Control Petition is an error and the correct number of the building is MM10/309. 3. The court below also considered the objection raised by the tenants that after the disposal of the Rent Control Revision by the High Court and SLP by the Supreme Court, the O.P.(R.C.)No.114/2014 5 Rent Control Court had no jurisdiction to entertain the present application. It was held, relying on the decisions in **Vasudevan v. Lakshmi (2000(3) KLT 704)** and **Pradeep Kumar v. State Bank of Travancore (1998 (2) KLT 927)** , that the application is maintainable. 4. In **Vasudevan v. Lakshmi (2000(3) KLT 704)** , a learned Single Judge of this Court, relying on the decision of the Supreme Court in **Tiko and others v. Lachman (1995 Supp. (4) SCC 582)** , held that schedule to the plaint which was omitted to be incorporated can be allowed to be incorporated by way of amendment even after disposal of the suit and the appeal therefrom. In **Tiko and others v. Lachman (1995 Supp. (4) SCC 582)** , in a suit for redemption of mortgage, a prayer made for amendment of the plaint schedule showing the correct description of the plaint schedule property including the O.P.(R.C.)No.114/2014 6 extent, after the disposal of the Second Appeal and even after the plaintiff-decree holder was put in possession of the land, was held to be maintainable. The Supreme Court held that the plaint schedule can be amended to make it in tune with the description of the property in the mortgage deed. In **Subramania Iyer v. Joseph George (1959 KLT 165)** , which was also relied on **Vasudevan v. Lakshmi (2000(3) KLT 704)** , it was held that the boundaries of the plaint schedule property which were wrongly shown in the plaint schedule could be corrected under Section 152 of the Code of Civil Procedure and that a suit for a rectification of the instrument and decree need not be resorted to. ## 5. In **Pradeep Kumar v. State Bank of Travancore (1998** **(2) KLT 927)** , it was held that the power of the Court to make corrections necessary for the ends of justice is not O.P.(R.C.)No.114/2014 7 confined only to powers exercisable under Section 152 C.P.C. Extensive powers may be exercised also under Sections 151 and 153 of C.P.C. 6. The court below rightly held on facts and on law that the application is maintainable and it was allowed on the merits. We do not find any illegality or jurisdictional error warranting interference in the well considered order of the court below. The O.P.(R.C.) fails and it is accordingly dismissed. **K.T.SANKARAN JUDGE** **ANIL K.NARENDRAN JUDGE** csl