Seena Ramesh v. N.K. Balasundaram

# **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 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943 OP (RC) NO. 20 OF 2022** **AGAINST THE PROCEEDINGS IN E.P.NO.39 OF 2020 IN** **R.CP.NO.19 OF 2019 OF THE PRINCIPAL RENT CONTROL COURT,** ## **KOTTAYAM** ## **PETITIONER:** **SEENA RAMESH, AGED 47 YEARS, W/O.RAMESH, MAMBALATH HOUSE, KODIMATHA KARA, KOTTAYAM VILLAGE.** **BY ADVS. S.SANAL KUMAR BHAVANA VELAYUDHAN T.J.SEEMA** ## **RESPONDENT:** **N.K.BALASUNDARAM, AGED 67 YEARS, S/O.ITTIRA, PULLANCHERIL HOUSE, MOOLAVATTOM, NATTAKOM VILLAGE, KOTTAYAM – 686 012.** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC)NO.20 OF 2022 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.19 of 2019 on the file of the Principal Rent Control Court (Principal Munciff), Kottayam, a petition the filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. During the pendency of that Rent Control Petition, the landlord filed an interlocutory application under Section 12 of the Act, seeking an order directing the tenant to make payment of the admitted arrears of rent. It appears that the Rent Control Court passed an order directing the tenant to make payment of the admitted arrears. The tenant failed to comply with that order. Therefore, the Rent Control Court passed an order dated 19.12.2019, invoking its powers under Section 12(3) of the Act, whereby the tenant is directed to give vacant possession of the petition schedule building. By that order, further proceedings in that Rent O.P.(RC)NO.20 OF 2022 3 Control Petition is stopped. 2. Since the tenant failed to give vacant possession of the petition schedule building, the landlord filed E.P.No.39 of 2020 in R.C.P.No.19 of 2019 before the Principal Munsiff Court, Kottayam. In that execution petition, the said court passed an order dated 19.01.2022, whereby the landlord is found entitled for delivery of vacant possession of the petition schedule building from the judgment debtor-tenant, with the assistance of Ameen. The execution court ordered that the decree holder shall take steps for delivery and effect delivery on 24.01.2022 (today). The execution petition now stands posted to 25.01.2022 (tomorrow) for reporting delivery. 3. The tenant filed this original petition, under Article 227 of the Constitution of India, seeking an order directing the Principal Munsiff Court, Kottayam to keep in abeyance the execution proceedings in E.P.No.39 of 2020 in R.C.P.No.19 of 2019, for a period of five months, to enable her to remove the stock of furniture or to go for a clearance sale of furniture, on such terms as this Court may deem fit, in the O.P.(RC)NO.20 OF 2022 4 nature and circumstances of the case. 4. Today, the petitioner has filed I.A.No.1 of 2022, an application under Section 155 of the Rules of the High Court of Kerala, 1971, seeking an order to amend the writ petition by incorporating an additional prayer to set aside the order dated 19.01.2022 in E.P.No.39 of 2020 in R.C.P.No.19 of 2019, as unsustainable. The petitioner has also filed I.A.No.2 of 2022, seeking an order to accept a copy of the order dated 19.01.2022 in E.P.No.39 of 2020 in R.C.P.No.19 of 2019 as Ext.P7. 5. Heard the learned counsel for the petitionertenant. 6. On a query made by this Court, the learned counsel for the petitioner-tenant would submit that, after the order dated 19.12.2019 of the Rent Control Court directing the tenant to give vacant possession of the petition schedule building, under Section 12(3) of the Act, due to none payment of admitted arrears of rent, the tenant has not made any payment towards arrears of rent, at the rate of 30,000/- O.P.(RC)NO.20 OF 2022 5 per month. The submission made by the learned counsel is that, the petitioner-tenant may be permitted to occupy the petition schedule building for a period of five months to enable to her to remove the stock of furniture or to go for a clearance sale of the furniture. The petitioner is not in a position to pay the arrears of rent from the year 2019 or during the period of five months sought for in this original petition to give vacant possession of the petition schedule building. 7. In **Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Kerala 876]** this Court held that the consequences provided under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 follow when there occurred a default by the tenant in complying with the direction in an order passed under Section 12(1) and (2), for deposit or payment of the admitted arrears of rent. On the date stipulated for effecting such payment, by virtue of that order, the tenant becomes fully aware that, unless sufficient cause has not been shown for the default committed, the consequence of stoppage of O.P.(RC)NO.20 OF 2022 6 the proceedings and direction to put the landlord in possession of the building, under Section 12(3) would follow automatically. As held by a Division Bench of this Court in **Venugopalan v. Raphael [1974 KLT 640]** and reiterated in **Davy v. Indu [(1999) 3 KLT 434]** even assuming that for purpose of execution an order under Section 12(3) of the Act can be equated with and treated as the same, as one under Section 11 of the Act, the consequence enjoined by an order under Section 12(3) for failure to deposit the admitted arrears in time can not be vacated or obliterated by payment at any subsequent stages or periods. The law laid down by a Three-Judge Bench of the Apex Court in **Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577]** is to the effect that, where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so. 8. S.L.P(C)No.18301 of 2021 filed by the tenant challenging the judgment in **J.Ramkumar v. Ashok Jacob** O.P.(RC)NO.20 OF 2022 7 **[ILR 2021 (4) Kerala 876]** ended in dismissal, by the order dated 18.11.2021, declining interference. 9. In the instant case, the petitioner-tenant has not chosen to challenge the order of the Rent Control Court dated 19.12.2019 in R.C.P.No.19 of 2019, which is one issued under Section 12(3) of the Act, which is appealable before the Rent Control Appellate Authority, in view of the provisions under Section 18(1)(b) of the Act. Even after the said order of the Rent Control Court, the tenant is in occupation of the petition schedule building, without paying any amount towards monthly rent, for the last more than three years. 10. When the order of the Rent Control Court dated 19.12.2019 in R.C.P.No.19 of 2019 has attained finality, the execution court cannot be found fault with in ordering delivery of the petition schedule building, with the assistance of Ameen. The petitioner who has defaulted payment of rent from the year 2019, now wants to continue to occupy the petition schedule building for a further period of five months, without making any payment whatsoever. O.P.(RC)NO.20 OF 2022 8 ## 11. 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. 12. 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 O.P.(RC)NO.20 OF 2022 9 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 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, 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 O.P.(RC)NO.20 OF 2022 10 flagrant abuse of fundamental principles of law or justice. 13. 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 and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 14. 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, O.P.(RC)NO.20 OF 2022 11 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. 15. 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 O.P.(RC)NO.20 OF 2022 12 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. 16. View in the light of the law laid down in the decisions referred to supra, no interference is warranted on the order dated 19.12.2019 in E.P.No.39 of 2020 in R.C.P.No.19 of 2019 of the Principal Munsiff Court, Kottayam, which is neither perverse nor patently illegal. It cannot be said that, while passing the aforesaid order, the execution court committed manifest error or its decision is in direct conflict with settled principles of law. This original petition is nothing but an abuse of process of court, which is liable to be dismissed by imposing exemplary cost. However, we refrain O.P.(RC)NO.20 OF 2022 13 from doing so, considering the situation prevailing in the State on account of Covid-19 pandemic. In the result, this original petition fails and the same is accordingly dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** MIN 14 ## O.P.(RC)NO.20 OF 2022 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **EXHIBIT P1 A TRUE COPY OF THE PETITION IN R.C.P.NO.19 OF 2019 FILED BY THE RESPONDENT BEFORE THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM DATED 14.03.2019. EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM IN R.C.P.NO.19 OF 2019 DATED 19.12.2019.** - **EXHIBIT P3 A TRUE COPY OF THE RECEIPT ISSUED BY THE KOTTAYM MUNICIPALITY DATED 30.03.2019 ON REMITTANCE OF SERVICE TAX FOR DOING FURNITRUE BUSINESS.** - **EXHIBIT P4 A TRUE COPY OF THE NOTICE ISSUED BY THE AUTHORIZED OFFICER OF THE KOTTAYAM CO-OPERATIVE URBAN BANK LTD. NO.421 DATED 09.08.2021.** **EXHIBIT P5** - **A TRUE COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT AS E.P.NO.39 OF 2020 BEFORE THE MUNSIFF COURT, KOTTAYAM DATED 26.01.2020.** **EXHIBIT P6** - **A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P.NO.39 OF 2020 IN R.C.P.NO.19 OF 2019 OF THE RENT CONTROL COURT, KOTTAYAM DATED** 15 ## O.P.(RC)NO.20 OF 2022 ## **17.12.2021.** ## **EXHIBIT P7** **A TRUE COPY OF THE E-MAIL COPY OF THE ORDER DATED 19.01.2022 IN E.P.NO.39 OF 2020 IN R.C.P.NO.19 OF 2019 OF THE RENT CONTROL COURT, KOTTAYAM.** **RESPONDENT'S EXHIBITS: NIL.**