High Court of KeralaDivision BenchPetition dismissed

O.P.(RC) No.120 of 2021

Case / Petition Number:O.P.(RC) No.120 of 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anil K. Narendran
  • P.G. Ajithkumar Friday
Judgment Date
2022-01-28
Court Decision / Holding
The petition is dismissed. The High Court declines to interfere with the Rent Control Court’s order, holding that the urgent ex parte commission approach and the resulting report remain an acceptable part of the evidentiary framework in this eviction petition, while limiting the application of the Mukreerakath Khadeeja rule on remitting/further reports in the ex parte context.
Final Disposition
Petition dismissed

Parties to the Case

Appellants / Petitioners

  • DEVI.V.K
  • ANITHA K.P
  • RANCY V.K
  • RAYIHA V.K
  • RAHIN

Respondents

  • Gireesh Aavikkal
  • PRADEEGH
  • LASITHA

Legal Representation & Advocates

Counsels for Petitioners

  • • K.RAKESH
  • • ROSHAN THUSHARA.V

Counsels for Respondents

  • • ZUBAIR PULIKKOOL
  • • K.SEENA

Case Synopsis & Summary

This is a Kerala High Court judgment under Article 227 of the Constitution of India involving five petitioners (tenants) challenging an order of the Rent Control Court, Vatakara, in I.A.1/2021 in R.C.P. No.43 of 2020, and seeking remittance of a commissioner’s report (Ext.P3) filed in the eviction petition under Sections 11(2)(b), 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court deputed an ex parte Commissioner to inspect the petition premises on grounds that the shop had been locked since 2009; the Commissioner filed his report on 10.12.2020. The petitioners moved Ext.P4 for remittance and a supplemental report, arguing misidentification of the scheduled shop and lack of notice, which they say would affect Ext.P2 in the eviction petition. The respondents defended the court’s approach, relying on urgent commissions where eviction under Section 11(4)(v) is involved. On 18.11.2021, Ext.P6 dismissed IA No.1/2021, with the Rent Control Court relying on Mukreerakath Khadeeja v. Krishna Janani. The High Court heard arguments but declined to interfere, noting that the best proof in such eviction petitions is a commissioner’s report obtained by surprise, while also distinguishing the exact rule on remitting or calling for a further report in the context of ex parte commissions. The petition is ultimately dismissed, upholding the Rent Control Court’s order.

Provisions of Law Cited

11(2)(b)11(3)11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965

Legal Doctrines & Maxims

  • Best mode of proof is to obtain a report from the Commissioner after inspection by surprise
  • Six months' continuous occupancy prior to filing eviction petition under Section 11(4)(v)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners urged Ext.P4 for remitting the ex parte commission report and for a supplemental report, contending misidentification of the scheduled shop and lack of notice. They argued that a fresh inspection with notice would reveal the true state of affairs and would aid the contentions in Ext.P2. They sought an opportunity to cross-examine the Commissioner and to challenge Ext.P3. They contended that the petition raises important questions about identity and occupancy and that remittal could facilitate a fair determination of the eviction dispute. They pressed for relief under Article 227 to quash Ext.P6 if improper procedure or misidentification is established.

Contentions of Respondents

The respondents defended the Rent Control Court’s order, arguing that the urgent commission was proper given the eviction grounds and that there was no illegality in deputing the Commissioner. They relied on the guiding principle from Mukreerakath Khadeeja v. Krishna Janani to justify the use of an ex parte commission and asserted that there is no utility in remitting the report or obtaining a further report after a long delay. They contended the identity of the shop as identified by the Commissioner was adequate and that Ext.P3 report is reliable evidence in support of eviction under Section 11(4)(v).

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Mukreerakath Khadeeja v. Krishna Janani2011 (3) KHC 753Partly Overruled / LimitedThe court relies on this case to justify the use of an urgent ex parte commission but distinguishes and limits its broader rule on remitting or obtaining another report, noting that the Mukreerakath Khadeeja rule does not apply to ex parte commission reports.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 OP (RC) NO. 120 OF 2021** **AGAINST THE ORDER DATED 18.11.2021 IN I.A.NO.1 OF 2021 IN R.C.P.NO.43 OF 2020 OF RENT CONTROL COURT (MUNSIFF),** ## **VATAKARA** ## **PETITIONERS:** - **1 DEVI.V.K AGED 75 YEARS VATTAKUNIYIL, IRINGAL AMSOM DESOM, POST IRINGAL, (VIA) MELADY, KOZHIKODE DISTRICT, PIN-673 521.** **2 ANITHA K.P, AGED 62 YEARS, W/O RAMACHANDRAN, VATTAKUNIYIL, IRINGAL AMSOM DESOM, POST IRINGAL, (VIA) MELADY,KOZHIKODE DISTRICT, PIN-673 521.** - **3 RANCY V.K, AGED 34 YEARS, D/O RAMACHANDRAN, VATTAKUNIYIL, IRINGAL AMSOM DESOM, POST IRINGAL, (VIA) MELADY,KOZHIKODE DISTRICT, PIN-673 521.** - **4 RAYIHA V.K, AGED 30 YEARS, D/O RAMACHANDRAN, VATTAKUNIYIL, IRINGAL AMSOM DESOM, POST IRINGAL. (VIA) MELADY, KOZHIKODE DISTRICT, PIN-673 521.** 2 O.P.(RC) No.120 of 2021 - **5 RAHIN,** **AGED 28 YEARS, S/O RAMACHANDRAN, ELECTRICAL AND ELECTRONICS REARING WORK, VATTAKUNIYIL, IRINGAL AMSOM DESOM, POST IRINGAL, (VIA) MELADY,KOZHIKODE DISTRICT, PIN-673 521.** **BY ADVS. K.RAKESH ROSHAN THUSHARA.V** ## **RESPONDENTS:** - **1 GIREESH AAVIKKAL,** **S/O BHASKARAN, AGED 65 YEARS, AAVIKKAL HOUSE, VATAKARA AMSOM DESOM, POST VATAKARA BEACH, KOZHIKODE DISTRICT, PIN – 673 103.** - **2 PRADEEGH,** **AGED 30 YEARS, S/O GIREESH, AAVIKKAL HOUSE, VATAKARA AMSOM DESOM, POST-VATAKARA BEACH, KOZHIKODE DISTRICT, PIN-673 103.** **3 LASITHA, D/O RAGHAVAN, PANGADU HOUSE, PUTHUPPANAM AMSOM DESOM, PUTHUPPANAM P.O., VATAKARA, KOZHIKODE DISTRICT, PIN-673 503.** **BY ADVS.** **ZUBAIR PULIKKOOL** - **K.SEENA** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION** **ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.120 of 2021 ## **J U D G M E N T** ## Ajithkumar, J This Original Petition was filed under Article 227 of the Constitution of India seeking to set aside Ext.P6, order of the Rent Control Court (Munsiff), Vatakara in I.A.No.1 of 2021 in R.C.P.No.43 of 2020 and further to allow Ext.P4, an application filed by the petitioner seeking to remit the commission report filed in the said R.C.P. 2. R.C.P.No. 43 of 2020 was filed by the respondentslandlords with a prayer for eviction of the petitioners from the petition schedule shop room under Sections 11(2)(b), 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondents filed an application for appointment of a commission along with the rent control petition and on allowing that application the Rent Control Court deputed an exparte commission. An urgent commission was taken out by the respondents in the wake of their allegations in the rent control petition that the petition schedule shop room has been kept under lock and key since 4 O.P.(RC) No.120 of 2021 January 2009. One of the grounds for eviction is that the petitioners ceased to occupy the petition schedule shop room for more than six months without reasonable cause as contained in Section 11(4)(v) of the Act. The Commissioner inspected the premises on 10.11.2020 and a report was filed on 10.12.2020. Ext.P3 is a copy of the report of the commissioner. 3. The petitioners filed Ext.P4 application for remitting the report of the commissioner and to obtain a supplemental report. The essential allegation was that the identity of the scheduled shop room was not correctly identified by the commissioner and that the inspection was done without giving notice to them. They would contend that if a further inspection is conducted with notice to them the actual state of affairs would come on record and that will help to substantiate their contentions in Ext.P2, the objection filed by them in the rent control petition. 4. On 03.12.2021, when this matter came up for consideration, urgent notice was ordered on admission to the 5 O.P.(RC) No.120 of 2021 respondents. Today, the respondents entered appearance through their learned counsel. 5. Heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondents. 6. Ext.P6 is the order of the Rent Control Court dismissing I.A.No.1 of 2021 which is an application for remitting the report of the commissioner. The Rent Control Court relying on the decision of this Court in **Mukreerakath Khadeeja v. Krishna Janani [2011 (3) KHC 753]** held that there was no impropriety in deputing an urgent commission, since one of the grounds for eviction was under Section 11(4) (v) of the Act. It was further held that there is no meaning in deputing the commission again after such a long period of filing the rent control petition. 7. The allegations in the eviction petition is that the petitioners as also their predecessor in interest, the original tenant Sri.Ramachandran, has not been occupying the petition schedule shop room since 2009. What is required to be 6 O.P.(RC) No.120 of 2021 proved to claim eviction under Section 11(4)(v) of the Act is that the tenant ceased to occupy the building continuously for six months, without reasonable cause. The said period of six months is the period next before the date of filing of the petition for eviction. Relevance of the report of a commissioner arises in such a situation. In **Mukreerakath Khadeeja** (supra), this Court observed that in such an eviction petition, the best mode of proof is to obtain a report from the commissioner after inspection of premises by surprise. It was further held by this Court that once such a report is obtained, the effect of it cannot be nullified by adopting a stultifying strategy of getting another report after several months. 8. In this case, the commissioner inspected the premises on 10.11.2020 and filed his report in the court on 10.12.2020. The evidence that may come on record on the basis of the said report will help to prove the state of affairs as on the date of filing of the petition. The learned counsel appearing for the petitioner would contend that the 7 O.P.(RC) No.120 of 2021 Commissioner identified the shop room as shown by a relative of the respondent and in fact some other building was inspected by the Commissioner. The learned counsel points out with the help of Ext.P7 photographs that the building in question has six windows in its first floor, whereas the Commissioner inspected a building having three windows. The correctness of other facts reported vide Ext.P3 report are also called in question in order to bring home his contention that the report required remission. 9. Ext.P3 is an exparte commission report. The Rule that the report of a Commissioner shall be evidenced in the suit or proceedings and shall form part of the record may not as such be applicable to an exparte commission report. Examination of the Commissioner as a witness before court is required to admit his report in evidence. It implies that the petitioners would certainly get an opportunity to cross examine the Commissioner before admitting his report in evidence. The law being that, a request for remitting a report or to call for a further report on the basis of the contention 8 O.P.(RC) No.120 of 2021 that certain facts stated in the report are incorrect cannot be entertained. The rule in **Mukreerakath Khadeeja** (supra) does not allow calling for such a report as well **.** In view of what are stated above, we find no reason to interfere with the impugned order of the Rent Control Court. It is neither illegal nor perverse requiring interference by this Court under Article 227 of the Constitution of India. Hence this petition is dismissed without any order as to costs. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** PV 9 O.P.(RC) No.120 of 2021 ## **APPENDIX OF O.P.(RC) 120/2021** **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE PETITION IN RCP NO 43/2020 OF RENT CONTROL COURT, VATAKARA** - **Exhibit P2 TRUE COPY OF THE COUNTER FILED BY THE PETITIONERS AS RESPONDENT IN RCP NO 43/2020 OF RENT CONTROL COURT, VATAKARA** - **Exhibit P3 TRUE COPY OF THE EXPARTE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN RCP NO 43/2020 OF RENT CONTROL COURT, VATAKARA** - **Exhibit P4 TRUE COPY OF THE OBJECTION BY THE PETITIONERS HEREIN AGAINST EXPARTE COMMISSION REPORT, WAY OF IA NO 1/2021 PRAYING TO REMIT THE COMMISSION REPORT** - **Exhibit P5 TRUE COPY OF THE OBJECTION FILED BY RESPONDENT HEREIN (LANDLORD) IN IA NO 2/2021** - **Exhibit P6 TRUE COPY OF THE ORDER DATED 18.11.2021 IN IA NO 1/2021 IN RCP NO 43/2020 OF RENT CONTROL COURT, VATAKARA** - **Exhibit P7 TRUE PHOTOGRAPHS OF THE OUTSIDE OF PETITION SCHEDULE BUILDING**