M. Bushara v. K. O. P Abdul Rauf

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ``` OP (RC) NO.64 OF 2023 ``` ``` AGAINST THE ORDER DATED 15.02.2023 IN E.P.NO.251 OF 2022 IN R.C.P.NO.244/2018 OF THE RENT CONTROL COURT (ADDITIONAL ``` ## **`MUNSIFF), KANNUR`** ## **`PETITIONER:`** ``` M. BUSHARA, AGED 49 YEARS W/O MANSOOR. BUILDING NO.: BPW VIII 120, CEMENT BUISNESS, HIGHWAY JUNCTION VALAPATTANAM P. O KANNUR, PIN - 670010 BY ADVS. K.REEHA KHADER ANJALY JIMMICHAN ``` ``` RESPONDENT: ``` ``` K. O. P ABDUL RAUF, AGED 64 YEARS S/O THAMVAIKUTTY, KOP HOUSE, NEAR ARABI COLLEGE, P.O PAPPINISSERY WEST, KANNUR DISTRICT-, PIN - 670561 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(RC)No.64 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.244 of 2018 on the file of the Rent Control Court (Additional Munsiff), Kannur, which was one filed by the respondent herein-landlord, seeking eviction of the petitioner-tenant from the petition schedule building under Section 11(2)(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965. During the pendency of R.C.P.No.244 of 2018, the matter was settled in mediation, on the basis of mediation settlement agreement. The Rent Control Court disposed of R.C.P.No.244 of 2018, by the order dated 07.12.2019, on the basis of that mediation settlement agreement, by directing the tenant to surrender the petition schedule building to the landlord on or before 05.12.2022, failing which the landlord shall be at liberty to execute the order through the process of court. The tenant was directed to pay rent at the rate of Rs.3,000/- per month with a condition to enhance the rent at the rate of 10% every year on then prevailing rent. Both parties were directed to bear their respective costs. The mediation report formed part of that order, i.e., Ext.P1 order dated 07.12.2019 3 O.P.(RC)No.64 of 2023 R.C.P.No.244 of 2018. The petitioner-tenant failed to vacate the petition schedule building in R.C.P.No.244 of 2018, by 05.12.2022. The landlord filed E.P.No.251 of 2022 in R.C.P.No.244 of 2018 before the Principal Munsiff Court, Kannur for executing Ext.P1 order of eviction. On receipt of notice in Ext.P2 execution petition, the petitioner-tenant-judgment debtor entered appearance and filed Ext.P3 counter. The Principal Munsiff Court by Ext.P4 order dated 15.02.2023 ordered delivery of the petition schedule building on 22.02.2023 and posted the matter on 23.02.2023 for report. The landlord filed E.A.No.123 of 2022 in E.P.No.251 of 2022 to break open the door of the petition schedule building, since the Ameen could not effect delivery of that building on 22.02.2023. The petitioner filed Ext.P5 counter in E.A.No.123 of 2022 and thereafter, filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P4 order dated 15.02.2023 of the Principal Munsiff Court, Kannur in E.P.No.251 of 2022 in R.C.P.No.244 of 2018 and to grant one year time to vacate the premises. 4 O.P.(RC)No.64 of 2023 2. Heard the learned counsel for the petitioner-tenant. 3. The order of eviction granted by the Rent Control Court in Ext.P1 order dated 07.12.2029 in R.C.P.No.244 of 2018 is based on a settlement in mediation, on the basis of a mediation settlement agreement, whereby the petitioner-tenant agreed to vacate the petition schedule building on or before 05.12.2022. Since the tenant failed to vacate the premises, the landlord filed E.P.No.251 of 2022 in R.C.P.No.244 of 2018, in which the Principal Munsiff Court passed Ext.P4 order. In this original petition filed under Article 227 of the Constitution of India, the petitionertenant is seeking an order to set aside Ext.P4 order and to grant one year time from today to vacate the premises. 4. 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. 5. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the 5 O.P.(RC)No.64 of 2023 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. 6. 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 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 exercise of jurisdiction must be within the 6 O.P.(RC)No.64 of 2023 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. 7. In **K.V.S. Ram v. Bangalore Metropolitan 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. 8. 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 7 O.P.(RC)No.64 of 2023 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. 9. 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 8 O.P.(RC)No.64 of 2023 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 justice or the basic principles of natural justice have been flouted. 10. In the instant case, Ext.P1 order of eviction granted by the Rent Control Court is on the basis of the mediation settlement agreement, whereby the tenant has to surrender petition schedule building to the landlord on or before 05.12.2022. Since the tenant failed to vacate the petition schedule building, the landlord filed execution petition before the Principal Munsiff Court, Kannur in which the said court issued Ext.P4 order for delivery of the petition schedule building. It is well settled that the execution court cannot go beyond the decree. When the tenant failed to surrender the petition schedule building in terms of Ext.P1 order, the execution court has no option other than to proceed with the execution petition and pass Ext.P4 order. It cannot be said that while issuing Ext.P4 order the execution court has exceeded its powers or acted with material irregularity. It cannot also be said that Ext.P4 order of the execution court is either arbitrary or illegal. Therefore, no interference on Ext.P4 order is legally 9 O.P.(RC)No.64 of 2023 permissible, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P4 order of the execution court warrants no interference in this original petition. Since the time limit stipulated in Ext.P1 order of eviction of the Rent Control Court for surrendering possession of the petition schedule shop room to the landlord expired on 05.12.2022, the petitioner cannot seek extension of time by one year, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. This original petition is nothing but an abuse of process of Court, which can only be dismissed. In the result, this original petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** **yd** 10 O.P.(RC)No.64 of 2023 ## **APPENDIX** ## **`PETITIONER EXHIBITS`** |**`Exhibit P1`**|**`THE TRUE PHOTOCOPY OF THE AFORESAID`**| |---|---| ||**`ORDER IN RCP NO. 244/2018 DATED`**| ||**`07.12.2019`**| |**`Exhibit P2`**|**`THE TRUE PHOTOCOPY OF THE EXECUTION`**| ||**`PETITION E.P. 251/2022 IN R.C.P.`**| ||**`244/2018 BEFORE THE HONOURABLE`**| ||**`ADDITIONAL MUNSIFF COURT KANNUR`**| |**`Exhibit P3`**|**`A TRUE COPY OF THE COUNTER`**| |**`Exhibit P4`**|**`A TRUE COPY OF THE ORDER IN EP 251/2022`**| ||**`IN RCP 244/2018 BEFORE HONOURABLE`**| ||**`ADDITIONAL MUNSIFF COURT KANNUR`**| |**`Exhibit P5`**|**`A TRUE COPY OF COUNTER IN E.A.123/2022`**| ||**`IN E.P. 251/2022 IN R.C.P. NO. 244/2018`**| ||**`BEFORE THE HONOURABLE ADDITIONAL`**| ||**`MUNSIFF COURT KANNUR`**|