O.P.(RC) No. 62 of 2019

## **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 1[ST] DAY OF NOVEMBER 2021/ 10TH KARTHIKA, 1943** **O.P.(RC) NO. 62 OF 2019** **AGAINST THE ORDER DATED 25.05.2018 IN E.P.NO.103 OF 2013 IN R.C.P.NO.24 OF 2012 OF THE RENT CONTROL COURT (MUNSIFF'S COURT-II), KOCHI** ## **PETITIONER/S:** - **1 JANAMMA** - **AGED 94 YEARS** **W/O LATE KUNJANPILLAI,RESIDING AT CC/265,KAILASAM, MOULANA AZAD ROAD, MATTANCHERY, MATTANCHERY P.O, KOCHI-2, ERNAKULAM DISTRICT.** - **2 PARVATHY KUTANPILLAI, AGED 94 YEARS** **W/O LATE KUTTANPILLAI, RESIDING AT CC/265,KAILASAM, MOULANA AZAD ROAD,MATTANCHERY,MATTANCHERY P.O,KOCHI-2, ERNAKUAM DISTRICT.** - **3 SAJEEVKUMAR K., AGED 42 YEARS** - **S/O.LATE KUTTANPILLAI, RESIDING AT CC/265,KAILASAM,MOULANA AZAAD ROAD, MATTANCHERY.P.O, MATTANCHERY,KOCHI-2, ERNAKULAM DIST.** - **4 SURESH KUMAR.K, AGED 38 YEARS** **S/O.LATE KUTTANPILLAI, RESIDING AT CC/265, KAILASAM,MOULANA AZAD ROAD, MATTANCHERY.P.O, MATTANCHERY,KOCHI-2,ERNAKULAM DIST.** 2 O.P.(RC) No. 62 of 2019 ## **5 SUMA, AGED 40 YEARS** **W/O.CAPTAIN V.VIMALKUMAR,CC/265,KAILASAM, MOUNA AZAD ROAD,MATTANCHERY, MATTANCHERY.P.O,KOCHI-2,NOW RESIDING AT 'REVATHY',NANTHYATTUKUNNAM, NORTH PARAVUR,ERNAKULAM- DIST.** **PETITIONERS 1, 3, 4 AND 5 ARE REPRESENTED BY THE 2ND PETITIONER, PARVATHI KUTTANPILLAI AS THEIR POWER OF ATTORNEY HOLDER.** **BY ADV N.G.SURENDRAN** ## **RESPONDENT/S:** **THE BRANCH MANAGER, M/S.UCO BANK LTD, COCHIN BRANCH, (FORMERLY MATTANCHERY BRANCH), NOW HAVING THE BRANCH ADDRESS OF 12/1539 D2, KUMAR BUILDINGS,STATUE ROAD,CHULLICKAL, MATTANCHERY.P.O,KOCHI-682005, REP.BY ITS BRANCH MANAGER.** **BY ADV.DEEPAK JOY K., STANDING COUNSEL** **THIS O.P. (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(RC) No. 62 of 2019 ## **JUDGMENT** ## Ajithkumar, J. Petitioners are the landlords-decree holders and the respondent is the tenant-judgment debtor in E.P.No.103 of 2013 in R.C.P.No.24 of 2012 on the file of the Principal Munsiff's Court, Kochi. Legality of Ext.P8 order is under challenge. 2. The petitioners filed R.C.P.No.24 of 2012 seeking eviction of the respondent under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The matter was later settled in the Lok Adalat as per Ext.P3 award. Ext.P2 is the compromise appended to the award. E.P.No.103 of 2013 was filed by the petitioners for execution of the said award. During pendency of the execution petition, entire rent due at the rate agreed to vide Ext.P3 was admittedly paid by the respondent. The petitioners, alleging that the respondent defaulted timely payment of the rent due to them on the respective dates as per Ext. P2, claimed that 4 O.P.(RC) No. 62 of 2019 the respondent was liable to pay interest on the delayed payment. The learned Principal Munsiff as per Ext.P8 order rejected the said claim. On verification of the e-court services, it is found that the execution petition was eventually dismissed on 27.06.2018. 3. The learned counsel for the petitioners did not turn up to argue the matter, not only today, but also on previous occasions. Heard the learned counsel for the respondent. 4. We shall first consider the extent of jurisdiction of this Court under Article 227 of the Constitution to interfere with Ext.P8 order. 5. 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 5 O.P.(RC) No. 62 of 2019 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 over any court or tribunal constituted by or under any law relating to the Armed Forces. 6. 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 6 O.P.(RC) No. 62 of 2019 subordinate to the High Court. 7. 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 quasijudicial 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 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, 7 ## O.P.(RC) No. 62 of 2019 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. 8. 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. 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 8 O.P.(RC) No. 62 of 2019 and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 9. 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 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. 10. 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 9 O.P.(RC) No. 62 of 2019 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 justice or the basic principles of natural justice have been flouted. 11. The relevant clauses in Ext.P2 compromise are extracted below:- “Clause 2.- The petitioners have agreed that they are 10 O.P.(RC) No. 62 of 2019 ready to extend the period of the lease of the building with the respondent till 31.12.2020 and the respondents will hold this building on the basis of further lease till 31.12.2020 by paying the rent amount herein below mentioned. Clause 4.- The respondent has agreed that they are ready and willing to enhance the monthly rent of this building in a retrospective effect, from the next day of the expiry of the said lease agreement onwards. According to it, the respondent hereby agreed that they will pay the enhance rent of this building from 01.01.2011, in the manner that from 01.01.2011 to 31.12.2012 they will pay at rupees 25 per square feet as an enhanced rent of it, including the rent amount with the petitioners already received per square feet from the respondent during the period of 01.01.2011 to 31.12.2012. Clause 5.- The respondents also agreed that from the period of 01.01.2013 to 31.12.2015 as an enhanced rent of this building, they will pay @ Rupees 35 per square feet and thereafter till 31.12.2020, they will pay at Rupees 42 per square feet to the petitioners. 11 O.P.(RC) No. 62 of 2019 Clause 6.- The respondent assured that they will pay this address(sic) amount of rent within one week from the date of execution of the lease deed to the petitioners. They also assured that they will pay the monthly rent of this building on or before every 5[th] day of each English calendar month. The respondent also undertakes that in case they fail to make payment of arrears or rent of monthly rent in time they are ready to pay interest at 12% per annum against such defaulted amount.” 12. After setting out the terms agreed to with respect to the rate of increase of rent and periodicity, the parties agreed in clause 6 that the respondent should pay rent applicable to the respective periods, within one week from the execution of the lease agreement. The further covenant was that rent for each month should be paid on or before 5[th] day of the calendar month. The stipulation followed is that, in case there occurs failure in making the monthly rent in time, the respondent would pay interest at the rate of 12% per annum on the defaulted sum. 12 O.P.(RC) No. 62 of 2019 13. The learned Munsiff held that the agreement contained reciprocal promises and so long as the act of execution of lease agreement was complete, the liability for making payment of the rent at enhanced rate by the respondent would not arise. In that view of the matter, the learned Munsiff, after finding that on account of delay on the part of the petitioners, the rent agreement could not be executed in time, concluded that the respondent did not have the obligation of payment any interest. 14. When clause 6 in Ext.P2 compromise followed the clauses governing increase in the rate of monthly rent, the execution of lease agreement became a condition precedent and the agreement of compromise stood only as an executory one. 15. The Apex Court in **Union of India v. M/s. Chaman Lal Loona and Co. [AIR 1957 SC 652]** held that if the contract is one in which the consideration is executed on one side, there will be a right on one side and an outstanding liability on the other. If the consideration is executory on both 13 O.P.(RC) No. 62 of 2019 sides, there will be outstanding rights and liabilities on both sides. 16. In this case the facts narrated in the memorandum of the original petition itself, evince that the original 4[th] petitioner did not cooperate with other petitioners for accomplishing the compromise in Ext.P2, and therefore, there occurred delay in execution of the rent agreement. There is no averment that the respondent ever had delayed execution of the rent agreement. When those are the proven circumstances, it is clear that non-performance on the part of the petitioners was the reason for the delay in payment of rent by the respondent. The petitioners failed to perform their part of the contract insofar as it relates to execution of the lease agreement and therefore, they have no right to insist on the respondent to make payment of interest on the ground of delay. There is no case for the petitioners that the respondent delayed payment of the monthly rent, after execution of the lease agreement. 14 ## O.P.(RC) No. 62 of 2019 17. From what are stated above, we are of the view that Ext.P8 order does not suffer from any illegality or impropriety warranting interference under Article 227 of the Constitution. Hence, this original petition is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 15 O.P.(RC) No. 62 of 2019 ## **APPENDIX OF OP (RC) 62/2019** PETITIONER EXHIBITS EXHIBIT P1 CERTIFIED COPY OF GENERAL POWER OF ATTORNEY DATED 23.03.2009 ISSUED IN FAVOUR OF THE 2ND PETITIONER NAMED PARVATHY KUTTAN PILLAI,BY OTHER PETITIONERS AS WELL AS ONE SHOBHA TO CONDUCT THE MATTER WHICH INVOLVED IN THIS CASE ALSO. EXHIBIT P2 TRUE COPY OF COMPROMISE DATED 06.O6.2013 FILED BY THE PETITIONERS, ONE SHOBHA, AND THE RESPONDENT IN CONNECTION WITH R.C.P.NO.24 OF 2012 OF RENT CONTROL COURT,KOCHI, I.E.MUNSIFF'S COURT-II, KOCHI,BY SETTLING IT. EXHIBIT P3 TRUE COPY OF THE AWARD PASSED BY THE RENT CONTROL COURT,KOCHI,i.e. MUNSIFF'S COURTII, KOCHI IN R.C.P.NO.24 OF 2012 DATED 08.06.2013 ON THE BASIS OF COMPROMISE REACHED BY THE PARTIES IN IT. EXHIBIT P4 TRUE COPY OF E.P.NO.103 OF 2013 IN R.C.P.NO.24 OF 2012 FILED IN THE PRINCIPAL MUNSIFF'S COURT,KOCHI. EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT BANK IN E.P.NO.103 OF 2013. EXHIBIT P6 TRUE COPY OF AMENDED E.P.NO.103 OF 2013 IN R.C.P.NO.24 OF 2012 FILED IN THE PRINCIPAL MUNSIFF'S COURT,KOCHI. EXHIBIT P7 TRUE COPY OF THE COUNTER FILED BY RESPONDENT BANK IN THE AMEND E.P.NO.103 OF 2013. 16 ## O.P.(RC) No. 62 of 2019 EXHIBIT P8 CERTIFIED COPY OF THE ORDER IN EP NO.103 OF 2013 OF PRINCIPAL MUNSIFF'S COURT,KOCHI IN RCP NO.24 OF 2012 OF RENT CONTROL COURT, i.e. MUNSIFF'S COURT-II,KOCHI DATED 25.05.2018.