M.O. Varghese v. Dr. Isaac P. Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943 OP (RC) NO. 67 OF 2021** **AGAINST THE ORDER IN I.A.NO.2/2021 IN R.C.P.NO.197/2018 DATED 15.03.2021 OF III ADDITIONAL MUNSIFF AND RENT** ## **CONTROL COURT, ERNAKULAM** ## **PETITIONER:** **M.O.VARGHESE, AGED 90 YEARS, PARTNER, WESTEND TYRES, SHOP ROOM NOS. 248 & 249, BENISTA BUILDING, SAHODARAN AYYAPPAN ROAD, PANAMPILLY NAGAR, KOCHI - 682 036. BY ADV BABU CHERUKARA** ## **RESPONDENT:** **DR.ISSAC P. MATHEW AGED 84 YEARS S/O. MATHEW, MUNDUVELIL PUTHEN VEETIL, MAVELIKKARA, ALAPPUZHA DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER KOSHY MATHEW, S/O. T. V. MATHEW, RESIDING AT 33/1201 E, MSN ROAD, VENNALA P. O., CHALIKKAVATTOM, ERNAKULAM, PIN - 682 028.** **BY ADV C.SREEKUMARAN NAIR (CSN)** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC)No.67 of 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the tenant in R.C.P.No.197 of 2018 on the file of the Rent Control Court (III - Additional Munsiff), Ernakulam, a petition filed by the respondent-landlord under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop rooms on the ground of arrears of rent amounting to Rs.12,43,520/-, as on 04.10.2018, in respect of the said shop rooms. In R.C.P.No.197 of 2018 (Ext.P1), the tenant filed an objection dated 23.03.2019 (Ext.P2). On 27.01.2021, the tenant filed I.A.No.2 of 2021 (Ext.P3), seeking an order to appoint an Advocate Commission for local inspection of the petition schedule shop rooms and to file a report, with the assistance of an expert engineer, on the lie and nature of the said shop rooms and its floor area. 2. In the affidavit filed in support of I.A.No.2 of 2021, it is stated that, the landlord has calculated arrears of rent based on the averment that each room is having a floor area of 60 square meters. The tenant has already contended that the O.P.(RC)No.67 of 2021 3 floor area calculated by the landlord is not correct. However, the landlord has not taken steps to bring evidence to show that the floor area of each room is 60 square meters. In the proof affidavit the landlord has taken the stand that the floor area of each room is 60 square meters. In the above circumstances, it is necessary that the actual area of the petition schedule shop rooms is measured out and the report is filed before the court. 3. The landlord filed an objection dated 06.02.2021 (Ext.P5) in I.A.No.2 of 2021, opposing the reliefs sought for in that application. The landlord contended that the question regarding the area of petition schedule shop rooms was an issue directly and substantially raised in R.C.P.No.153 of 2010, which was decided against the tenant by the Rent Control Court. The tenant filed appeal, i.e., R.C.A.No.6 of 2013, which also ended in dismissal by the order of the Rent Control Appellate Authority, upholding the order of the Rent Control Court. Therefore, the tenant cannot raise that issue in the present proceedings. The tenant filed I.A.No.2 of 2021, on 27.01.2021, when R.C.P.No.197 of 2018 was listed for evidence, with the sole intention to prolong the litigation to the O.P.(RC)No.67 of 2021 4 disadvantage of the landlord. The plea raised by the tenant to ascertain the area of the tenanted premises cannot stand legal scrutiny, as the same is hit by _res judicata_ . 4. The Rent Control Court, by the impugned order dated 15.03.2021 (Ext.P6) rejected I.A.No.2 of 2021, on the ground that the question that falls for adjudication in R.C.P.No.197 of 2018 is as to whether the tenant had kept the rent in arrears. The question as to the area of the tenanted premises is not at all necessary for a proper consideration of that issue and the present interlocutory application is filed only to prolong the proceedings. In Ext.P6 order, the Rent Control Court noticed that in the earlier proceedings between the parties for fixation of fair rent, i.e., R.C.P.No.153 of 2010, fair rent has already been fixed after considering the area of petition schedule shop rooms. The appeal filed by the tenant against that order ended in dismissal by the Rent Control Appellate Authority. The fair rent was fixed taking note of the area of the petition schedule building and therefore, the said question does not arise for consideration in the present proceedings, i.e., R.C.P.No.197 of 2018. O.P.(RC)No.67 of 2021 5 5. Feeling aggrieved by Ext.P6 order dated 15.03.2021 of the Rent Control Court in I.A.No.2 of 2021 in R.C.P.No.197 of 2018, the petitioner-tenant is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 6. On 09.07.2021, when this original petition came up for admission, this Court issued notice on admission by special messenger to the respondent, returnable by 15.07.2021. 7. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 8. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P6 order of the Rent Control Court, whereby the said court rejected I.A.No.2 of 2021 in R.C.P.No.197 of 2018 filed by the petitioner-tenant to appoint an Advocate Commission for local inspection of the petition schedule shop rooms and to file a report, with the assistance of an expert engineer, on the lie and nature of the said shop rooms and its floor area. 9. R.C.P.No.197 of 2018 is one filed by the landlord, seeking eviction under Section 11(2)(b) of the Act, on an O.P.(RC)No.67 of 2021 6 allegation that the tenant had defaulted payment of monthly rent in respect of petition schedule shop rooms, at the rate fixed by the Rent Control Court in an earlier proceedings under Section 5 of the Act for fixation of fair rent, i.e., R.C.P.No.153 of 2010. 10. The order of the Rent Control Court in R.C.P.No.153 of 2010 is a common order dated 27.11.2012 in R.C.P.Nos.152 of 2010, 153 of 2010 and 154 of 2010. Insofar as the petition schedule shop rooms in R.C.P.No.197 of 2018 are concerned, the Rent Control Court in R.C.P.No.153 of 2010 fixed the fair rent as Rs.18,060/-, at the rate of Rs.14/- per square feet for a plinth area of 60 square meters each. The order of the Rent Control Court in R.C.P.No.153 of 2010 was under challenge before the Rent Control Appellate Authority (V - Additional District Judge), Ernakulam, in R.C.A.No.6 of 2013. The Appellate Authority by a common judgment dated 15.11.2017, dismissed R.C.A.No.6 of 2013 and the connected appeals, i.e., R.C.A.Nos.4 of 2013 and 7 of 2013, thereby confirming the order of the Rent Control Court in fixing the fair rent in respect of the shop rooms in question. O.P.(RC)No.67 of 2021 7 11. Challenging the judgment of the Appellate Authority in R.C.A.No.6 of 2013, the petitioner-tenant filed R.C.R.No.150 of 2018 before this Court, on 02.04.2018. On 23.05.2018, when that revision came up for admission, there was no representation for the petitioner and it was ordered to be posted 'when moved again'. On 08.07.2021, while arguments were heard in this original petition, the petitioner-tenant filed I.A.No.1 of 2021 in R.C.R.No.150 of 2018, seeking an order to amend the memorandum of revision, in order to raise a contention that the total area of the petition schedule shop rooms is only 82.95 square meters, as 60 square meters each, i.e., a total area of 120 square meters (60 each) as found in the order of the Rent Control Court in R.C.P.No.153 of 2010, while fixing the fair rent under Section 5 of the Act. When that revision petition came up for consideration on 20.07.2021, the matter was ordered to be listed along with this original petition. 12. The judgment of the Appellate Authority in R.C.A.Nos.4 of 2013 and 7 of 2013 arising out of R.C.P.Nos.152 of 2010 and 154 of 2010 are under challenge in R.C.R.Nos.35 of 2018 and 119 of 2018 pending before this Court. In O.P.(RC)No.67 of 2021 8 R.C.R.No.35 of 2018, this Court has granted an interim order in I.A.No.198 of 2018, on 06.02.2018, staying the operation of the impugned order/judgment in R.C.P.No.154 of 2010 and R.C.A.No.4 of 2013, on condition that the tenant shall pay the rent at the rate of Rs.7,300/- per month from February, 2018 onwards, subject to the final decision in that revision petition. In R.C.R.No.119 of 2018, there is no such interim order. For reasons best known to the petitioner-tenant, he has not chosen to bring up R.C.R.No.150 of 2018, a revision filed before this Court on 02.04.2018, challenging the judgment of the Appellate Authority in R.C.A.No.6 of 2013 confirming the order of the Rent Control Court fixing fair rent in respect of the petition schedule shop rooms in the present Rent Control Petition filed under Section 11(2)(b) of the Act, i.e., R.C.P.No.197 of 2018. As if there is an order of stay in R.C.R.No.150 of 2018, the petitioner-tenant had chosen to default payment of fair rent, which had resulted in another round of litigation by the landlord, who is a senior citizen aged 84 years, seeking eviction of the tenant from the petition schedule shop rooms on the ground of arrears of rent. In that Rent Control Petition, the O.P.(RC)No.67 of 2021 9 tenant has chosen to file I.A.No.2 of 2021, seeking an order for appointing an Advocate Commission for local inspection of the petition schedule shop rooms and file a report, on the lie and nature of the said shop rooms and its floor area. 13. Relying on the judgment of the Apex Court in **Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787]** the learned counsel for the petitioner-tenant would contend that, in R.C.P.No.197 of 2018, which is one filed by the landlord seeking eviction under Section 11(2)(b) of the Act, on the ground of arrears of rent, the tenant can raise a dispute as to the rate of rent payable, despite the fixation of fair rent by the Rent Control Court in R.C.P.No.153 of 2010, a previous proceedings under Section 5 of the Act. The default on the part of the tenant in paying fair rent, after the said order of the Rent Control Court, gives raise to a fresh cause of action or even a continuing cause of action to the landlord, for initiating proceedings seeking an order of eviction under Section 11(2) (b) of the Act, and as such the principles of res judicata or estoppel has no application. 14. In **Bhanu Kumar Jain** the Apex Court followed the O.P.(RC)No.67 of 2021 10 law laid down in **Hope Plantations Ltd. v. Taluk Land Board, Peermade and another [(1999) 5) SCC 590]** that one important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by Appellate Authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. The plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different, if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. 15. In **Williams Daniel v. Jose [2019 (5) KHC 205]** O.P.(RC)No.67 of 2021 11 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 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 O.P.(RC)No.67 of 2021 12 an enquiry and decide whether the denial is true or not. 16. 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 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 O.P.(RC)No.67 of 2021 13 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. 17. Once fair rent of the petition schedule shop rooms in R.C.P.No.197 of 2018 is fixed by the Rent Control Court by its order in R.C.P.No.153 of 2010, in a proceedings under Section O.P.(RC)No.67 of 2021 14 5(1) of the Act, the tenant cannot contend in a subsequent proceedings initiated under Section 11(2)(b) of the Act that he is not liable to pay the fair rent fixed under Section 5(1) of the Act and that, the dispute raised by the tenant as to the rate of rent with reference to the floor area of the tenanted premises or any other aspects requires consideration in the subsequent proceedings initiated under Section 11(2)(b) of the Act before ordering eviction on the ground of arrears of rent. As long as the order of the Rent Control Court fixing fair rent is not stayed or modified by the Appellate or Revisional Court, the tenant is bound to pay rent, at the rate fixed in the proceedings under Section 5(1) of the Act. Further, the legality or otherwise of fixation of fair rent in a proceedings under Section 5(1) of the Act cannot be a subject matter in a subsequent proceedings for eviction under Section 11(2)(b) of the Act. Therefore, the Rent Control Court cannot be found fault with in rejecting I.A.No.2 of 2021 in R.C.P.No.197 of 2018 filed by the petitioner-tenant for appointing an Advocate Commission for local inspection of the petition schedule shop rooms and file a report, on the lie and nature of the said shop rooms and its floor area. O.P.(RC)No.67 of 2021 15 ## 18. 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. 19. 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. O.P.(RC)No.67 of 2021 16 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. 20. In the above circumstances, we find no reason to interfere with Ext.P6 order of the Rent Control Court dated 15.03.2021 in R.C.P.No.197 of 2018, which is impugned in this original petition. 21. In the result, the original petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **K. BABU** **JUDGE** yd O.P.(RC)No.67 of 2021 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **Exhibit P1 TRUE COPY OF THE RENT CONTROL PETITION NO.197/2018 OF THE RENT CONTROL COURT, ERNAKULAM DATED 01.11.2018. Exhibit P2 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER/ TENANT IN THE RCP NO.197/2018 DATED 23.03.2019. Exhibit P3 TRUE COPY OF COMMISSION APPLICATION AS PER I.A.NO.2/2021 IN RCP NO.197/2018 OF THE RENT CONTROL COURT, ERNAKULAM DATED 27.01.2021. Exhibit P4 TRUE COPY OF THE PANEL OF EXPERT ENGINEER IN I.A.NO.2/2021 IN RCP NO.197/2018 OF THE RENT CONTROL COURT, ERNAKULAM DATED 30.01.2021. Exhibit P5 TRUE COPY OF AFFIDAVIT IN OPPOSITION FILED BY THE RESPONDENT IN I.A.NO.2/2021 IN RCP NO.197/2018 OF THE RENT CONTROL COURT, ERNAKULAM DATED 06.02.2021. Exhibit P6 TRUE COPY OF THE ORDER IN I.A.NO.2/2021 IN RCP NO.197/2018 OF THE RENT CONTROL COURT, ERNAKULAM DATED 15.03.2021. Exhibit P7 TRUE COPY OF THE CERTIFICATE ISSUED BY HARILAL V. S. CHARTERED ENGINEER DATED 23.03.2021. Exhibit P8 TRUE COPY OF THE WITNESS LIST SUBMITTED BEFORE THE RENT CONTROL COURT, ERNAKULAM IN RCP NO.197/2018 OF DATED 23.03.2021. Exhibit P9 TRUE COPY OF THE PETITION I.A.NO.3/2021 IN RCP NO.197/2018 TO RECEIVE WITNESS LIST DATED 23.03.2021 FILED BY THE PETITIONER. Exhibit P10 TRUE COPY OF THE PROOF AFFIDAVIT BY THE PETITIONER'S WITNESS ER.V.S.HARILAL DATED 23.03.2021 IN RCP NO.197/2018. Exhibit P11 TRUE COPY OF THE OBJECTION TO THE EXT.P9 I.A. FILED BY THE RESPONDENT DATED 24.03.2021.** O.P.(RC)No.67 of 2021 18 **Exhibit P12 TRUE COPY OF PROOF AFFIDAVIT OF THE POWER OF ATTORNEY HOLDER OF THE PETITIONER IN RCP NO.197/2018 DATED 18.01.2021 AND THE HANDWRITTEN COPY OF THE CROSS EXAMINATION. Exhibit P13 TRUE COPY OF COMMON ORDER IN R.C.P.NOS.152, 153 & 154/2010 OF THE RENT CONTROL COURT, ERNAKULAM DATED 27.11.2012. Exhibit P14 TRUE COPY OF COMMON JUDGMENT IN R.C.A.NO.6/2013 OF THE RENT CONTROL APPELLATE AUTHORITY /ADD. DISTRICT COURT -V, ERNAKULAM DATED 15.11.2017. Exhibit P15 TRUE COPY OF THE REVISION PETITION RCR NO.150/2018 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT DATED 26.03.2018 WITHOUT LOWER COURT ORDERS AND PETITIONS.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** **P.A. TO JUDGE**