OP (RC) Nos.92 & 93 of 2019 (Sathyaseelan v. Chengot Abdul Samad; Santosh v. Chengot Abdul Samad; Muraleedharan v. Chengot Abdul Samad; Haridasan v. Chengot Abdul Samad)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942** **OP (RC).No.92 OF 2019** **AGAINST THE ORDER DATED 28.05.2019 IN I.A.NO.615/2019 IN R.C.P.NO.79/2016 OF ADDITIONAL MUNSIFF COURT-I, KOZHIKODE** ## **PETITIONERS/ PETITIONERS/ RESPONDENTS:** **1 SATHYASEELAN, AGED 47 YEARS, S/O.RAGHAVAN NAIR, 36/3229, (HERO HONDA WORK SHOP), FRANCIS ROAD, NEAR SLRC, KOZHIKODE.** **2 SANTHOSH, (HERO HONDA WORK SHOP), FRANCIS ROAD, NEAR SLRC, KOZHIKODE. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SHRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL)** ## **RESPONDENTS/ RESPONDENTS/ PETITIONERS:** **1 CHENGOT ABDUL SAMAD, S/O.ALAVI HAJI, CHENGOT HOUSE, M.C.LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004. 2 CHENGOT MUHAMMED BASHEER, S/O.ALAVI HAJI, CHENGOT HOUSE, M.C.LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004.** **3 KOLUPARAMBIL NISHADA, D/O.MUHAMMED KUNHI, CHENGOT HOUSE, M.C.LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004.** **4 CHERIYAKATH SHARJILA, D/O.ABDURAHIMAN, CHENGOT HOUSE, M.C.LANE, PUTHIYARA, KASABA AMSOM,** **O.P.(RC)Nos.92 & 93/2019** ## **-:2:-** ## **DESOM, KOZHIKODE-673 004.** **R1-4 BY ADV. SRI.NIRMAL. S** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 28.01.2021, ALONG WITH OP (RC)NO.93/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(RC)Nos.92 & 93/2019** ## **-:3:-** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942** **OP (RC).No.93 OF 2019** **AGAINST THE ORDER DATED 28.05.2019 IN I.A.NO.616/2019 IN R.C.P.NO.80/2016 OF ADDITIONAL MUNSIFF COURT-I, KOZHIKODE** ## **PETITIONERS/ PETITIONERS/ RESPONDENTS:** **1 MURALEEDHARAN, AGED 45 YEARS, S/O. SANKARAN, 16/690, FRANCIS ROAD, NEAR SLRC, KOZHIKODE-673 003. 2 HARIDASAN, 16/690, FRANCIS ROAD, NEAR SLRC, KOZHIKODE-673 003 BY ADVS.SRI.P.S.SREEDHARAN PILLAI SHRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.ALEX ABRAHAM SRI.JOSEPH GEORGE(MULLAKKARIYIL)** ## **RESPONDENTS/ RESPONDENTS/ PETITIONERS:** **1 CHENGOT ABDUL SAMAD, S/O. ALAVI HAJI, CHENGOT HOUSE, M.C. LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004 2 CHENGOT MUHAMMED BASHEER, S/O. ALAVI HAJI, CHENGOT HOUSE, M.C. LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004** **O.P.(RC)Nos.92 & 93/2019** ## **-:4:-** **3 KOLUPARAMBIL NISHADA, D/O. MUHAMMEDKUNHI, CHENGOT HOUSE, M.C. LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004 4 CHERIYAKATH SHARJILA, D/O. ABDURAHIMAN, CHENGOT HOUSE, M.C. LANE, PUTHIYARA, KASABA AMSOM, DESOM, KOZHIKODE-673 004 R1-4 BY ADVS. SMT.VEENA HARI SRI.S.NIRMAL** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 28.01.2021, ALONG WITH OP (RC)NO.92/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(RC)Nos.92 & 93/2019** ## **-:5:-** ## “CR” ## A.HARIPRASAD & T.V.ANILKUMAR, JJ. = = = = = = = = = = = = = = = = = O.P.(RC)Nos.92 & 93 of 2019 - - - - - - - - - - - - - - - - - - - - - _Dated this the 28[th] day of January,2021_ **==> picture [237 x 10] intentionally omitted <==** ## A.HARIPRASAD,J. Similar questions are raised in these original petitions. We, therefore, heard the petitions together. Orders impugned in both these petitions are marked as Ext.P4. Ext.P4 orders were passed by the Rent Control Court, Kozhikode, on separate applications filed by the petitioners for remitting the report and sketch submitted by the Advocate Commissioner appointed for conducting local inspection. Request made by the petitioners for remittal of the Commissioner's report and sketch was declined and hence, they are before this Court. 2. Heard learned counsel for the petitioners and respondents. 3. Respondents in both these original petitions are the same landlords, who filed applications for eviction of the tenants/petitioners. They claimed eviction on the ground of bona fide need for own occupation referable to **O.P.(RC)Nos.92 & 93/2019** ## **-:6:-** Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965( for short, 'the BRC Act'). Ext.P2 in each case is the report and sketch submitted by the Commissioner. Ext.P3 is the application filed by the petitioners in each case for remitting the Commissioner's sketch and report. 4. After hearing the rival contentions, the impugned order was passed by the Rent Control Court finding that the petitioners failed to specifically aver as to which aspect in the report and sketch was unclear. Therefore, the court below, holding a view that the petitioners could lead evidence to substantiate their contentions, found that a remittal of the Commissioner's report was unwarranted. 5. Learned counsel for the petitioners submitted that the court below thoroughly went wrong in not appreciating the contentions of the tenants. According to them, the building is situated in a locality where there is no proper access to take vehicles in order to run a godown. It is also pointed out, referring to Ext.P2 sketch, that only a narrow passageway (alley) is available on the eastern side of the property where the building is situated. Similarly, on the north also, there is only an alley. Petitioners contended that on this score alone it can be seen that the respondents' claim for eviction on the ground of bona fide need to run a godown is a ruse to **O.P.(RC)Nos.92 & 93/2019** ## **-:7:-** evict the tenants. Petitioners would further contend that the alleys on the north and east are too narrow to allow vehicular access to the property. This is a valid reason to suspect the bona fides of the need urged by the landlords. In answer to this contention, learned counsel for the respondents/landlords submitted that the building has direct access from the main road running through the south. On a perusal of the Commissioner's report and sketch, it can be seen that the Commissioner has not mentioned anything about the width of the alley or the availability of direct access to the petition schedule building from the public road running through the south of the property. The availability of a direct vehicular access to the petition schedule building is an aspect having a bearing on the contentions raised by the landlords. The court below should have permitted remittal of the Commissioner's report only to note this point. 6. Pertinent legal question arising in this context is whether an original petition under Article 227 of the Constitution of India can be maintained before this Court in the light of Section 18 of the BRC Act. The provision reads thus: “ **18.Appeal._** (1)(a) The Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a subordinate Judge the power of appellate authorities for the purpose of this Act in such areas or in such classes of cases as may be specified in the order. (b) Any person aggrieved by an order passed by the Rent Control **O.P.(RC)Nos.92 & 93/2019** **-:8:-** Court may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. (2) On such appeal being preferred, the appellate authority may order stay of further proceeding in the matter pending decision on the appeal. (3) The appellate authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal. Explanation._ The appellate authority may, while confirming the order of eviction passed by the Rent Control Court, grant an extension of time to the tenant for putting the landlord in possession of the building. (4) The appellate authority shall have all the powers of the Rent Control Court including the fixing of arrears of rent. (5) The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court, shall be final and shall not be liable to be called in question in any Court of law, except as provided in section 20.” 7. In order to answer the above question, learned counsel, relying on the decision reported in Central Bank of India Ltd. v. Gokal Chand [AIR 1967 SC 799], contended that appealability of orders referred to in Section 18 cannot be in respect of orders passed on procedural matters or those which do not affect the rights and liabilities of the parties. To reinforce this contention, paragraphs Nos. 3 and 4 of the decision is relied on, which reads as follows: “3. The Delhi Rent control Act, 1958 empowers the Controller to pass orders for fixing the standard rent or lawful increase thereof, eviction of tenants and various other orders on the applications filed before him by the landlord or the tenant. Under S.36 and 37(2), the Controller may pass interlocutory orders in a pending proceeding. Under S.36, he may pass orders for the summoning of witnesses, the issue of **O.P.(RC)Nos.92 & 93/2019** **-:9:-** commissions for examination of witnesses discovery, production and inspection of documents and inspection of premises. By S.37(2), he is required to follow as far as may be the practice and procedure of a Court of small causes, and following such practice and procedure, he may pass other interlocutory orders. S.38 gives a right of appeal to the Rent Control Tribunal from every order of the Controller made under the Act. The Tribunal has all the powers vested in a Court under the Code of Civil Procedure, 1908 when hearing an appeal. Under S.39 an appeal lies to the High Court from an order of the Tribunal if the appeal involves some substantial question of law. By S.43, save as expressly provided in the Act, every order made by the Controller or an order passed on appeal under the Act is final and cannot be called in question in any original suit, application or execution proceeding. S.38(1) reads : “ _An appeal shall lie from every order of the Controller made under this Act to the Rent Controller Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette.”_ 4. The object of S.38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S.38(1), the words “every order of the Controller made under this Act”, though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under S.36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevance of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S.37(2) is an order passed under the Act and is subject to appeal under S.38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal.” **O.P.(RC)Nos.92 & 93/2019** **-:10:-** 8. We notice that the words used in Section 38(1) of the Delhi Rent Control Act, 1958 is wider in scope than those employed in Section 18 of the BRC Act. Of course, there are minor changes in paraphrasing too. We are of the view that the legal implications of the words employed in both the provisions are the same. By applying the legal logic in the above decision, we are of the opinion that the phraseology employed in Section 18 of the BRC Act “that any person aggrieved by an order passed by the Rent Control Court may file an appeal” will have to be understood as orders which substantially affect the rights of the parties. During the course of adjudication of an eviction petition, the Rent Control Court is authorised to exercise powers enumerated under Section 23 of BRC Act to correctly decide the dispute. It can pass orders for discovery and inspection, enforcing the attendance of witnesses, compelling the production of documents, issuing commission for examining a witness or local inspection so on and so forth. All such orders are steps taken towards the final adjudication of the case. Such orders are regulatory in nature. They cannot be regarded as orders pronouncing finally on the rights and liabilities of the parties. Whereas, if the Rent Control Court refuses to set aside an ex parte order of eviction or disallows an application for restoration of an eviction petition **O.P.(RC)Nos.92 & 93/2019** ## **-:11:-** dismissed for default certainly an appeal can be maintained as those are instances affecting the rights of parties. There can be other instances too. As observed by the Apex Court, we think that the legislature would not have intended to confer a right of appeal on the parties to an eviction proceedings on each and every order passed by the Rent Control Court unmindful of its legal consequence as it may cause harassment to the other party on account of delay and expenses. Moreover, the statute does not create any bar against an aggrieved party to set forth the error, defect or irregularity, if any, in such orders as a ground of objection in his appeal against the final order in the proceedings. Hence, we find that the orders impugned in these proceedings are not appealable under Section 18 of BRC Act. So, the petitioners are justified in approaching this Court under Article 227 of the Constitution of India. 9. After hearing the learned counsel on both sides, we are of the view that the Rent Control Court should have remitted the Commissioner's report for the specific purpose of ascertaining the width of the pathway leading to the petition schedule property. No other aspect shall be probed by the Commissioner. In the result, the petitions are allowed. The impugned orders [Ext.P4] are set aside. The court below shall remit the Commissioner's report and sketch only for **O.P.(RC)Nos.92 & 93/2019** ## **-:12:-** the aforementioned purpose. The Commissioner shall inspect the property within a period of one week from the date of receipt of a warrant for local inspection and thereafter, he shall submit the report within another week. The court below shall take all endeavour to dispose of the case before 9[th] April, 2021. ## **Sd/-** A.HARIPRASAD,JUDGE **Sd/-** T.V.ANILKUMAR,JUDGE DST **O.P.(RC)Nos.92 & 93/2019** **-:13:-** ## **APPENDIX OF OP (RC) 92/2019** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF RCP 79/2016 BEFORE MUNSIFF COURT-I (RENT CONTROL COURT), KOZHIKODE. EXHIBIT P2 A TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE ENSO VALENTINE JACKSON DATED 14.08.2018 ALONG WITH PLAN. EXHIBIT P3 A TRUE COPY OF I.A.615/2019 IN RCP 79/2016 FILED BY THE PETITIONERS. EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED BY LEARNED RENT CONTROL/ADDITIONAL MUNSIFF COURT-I, KOZHIKODE DATED 28.05.2019 IN IA NO.615/2019 IN RCP NO.79/2016.** **RESPONDENTS' EXHIBITS:NIL** **O.P.(RC)Nos.92 & 93/2019** **-:14:-** ## **APPENDIX OF OP (RC) 93/2019** **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF RCP 80/2016 BEFORE MUNSIFF COURT-I (RENT CONTROL COURT) KOZHIKODE.** **EXHIBIT P2** **A TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE ENSO VALENTINE JACKSON DATED 14.08.2018 ALONG WITH PLAN.** **EXHIBIT P3 A TRUE COPY OF I.A. NO. 616/2019 IN RCP 80/2016 FILED BY THE PETITIONERS. EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED BY LEARNED RENT CONTROL/ADDITIONAL MUNSIFF COURT-I, KOZHIKODE DATED 28.05.2019 IN I.A.NO.616/2019 IN R.C.P. NO. 80/2016** **RESPONDENTS' EXHIBITS:NIL**