Sibi S. Nair and Madhave (minor) v. N.S. Sajitha and Indira Sreedharan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 O.P.(RC) NO. 136 OF 2022** **AGAINST THE ORDER DATED 13.06.2022 IN UNNUMBERED RCA OF 2022 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THIRUVANANTHAPURAM AND THE ORDER DATED 30.03.2022 IN E.A.NO.187 OF 2019 IN E.P.NO.210 OF 2011 IN R.C.P.NO.54 OF 2009 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), THIRUVANANTHAPURAM** ## **PETITIONERS:** **1 SIBI S NAIR AGED 42 YEARS, S/O INDIRA SREEDHARAN NAIR, RESIDING AT PAZHAYA AMMA VEEDU, T.C.36/1373(3), VALLAKKADAVU P.O., PETTAH VILLAGE, PERUMTHANNI MURI, THIRUVANANTHAPURAM, PIN – 695008.** **2 MADHAVE (MINOR) AGED 11 YEARS, REPRESENTED BY HIS FATHER 1ST PETITIONER - SIBI S. NAIR, AGED 42 YEARS, S/O INDIRA SREEDHARAN NAIR, RESIDING AT PAZHAYA AMMA VEEDU, T.C. 36/1373(3), VALLAKKADAVU P.O., PETTAH VILLAGE, PERUMTHANNI MURI, THIRUVANANTHAPURAM, PIN – 695573.** **BY ADVS.** **S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R** 2 O.P.(RC) No.136 of 2022 ## **RESPONDENTS:** **1 N.S. SAJITHA, AGED 52 YEARS, D/O NALINAKSHY AND WIFE OF SANAL KUMAR, RESIDING AT KARIKOTHIL, V.P.1/1197, PALLIMUKKU, PEYADU, THIRUVANANTHAPURAM, PIN – 695573.** - **2 INDIRA SREEDHARAN NAIR,** **AGED 65 YEARS, W/O SREEDHARAN NAIR, RESIDING AT PAZHAYAMMA VEEDU, T.C.36/1737(1), VALLAKKADAVU, PETTAH VILLAGE, PERUMTHANNI, THIRUVANANTHAPURAM, PIN – 695008.** **BY ADVS.** **R.HARIKRISHNAN** **V.SURESH** - **G.SUDHEER** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.136 of 2022 ## **JUDGMENT** ## Ajithkumar, J. This Original Petition is filed under Article 227 of the Constitution of India challenging the correctness and legality of the order of the Rent Control Appellate Authority (District Judge), Thiruvananthapuram, dismissing an unnumbered R.C.A. 2. On 12.07.2022, when this matter came up for admission, notice was directed to be served on the respondents. The 1st respondent entered appearance through his learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] respondent. 4. R.C.P.No.54 of 2009 was filed by the 1[st] respondent seeking eviction of the tenant therein. That Rent Control Petition was allowed ordering eviction. E.P.No.210 of 2011 was therefore filed by the 1st respondent for getting vacant possession of the petition schedule building. The petitioners 4 O.P.(RC) No.136 of 2022 filed E.A.No.187 of 2019 in E.P.No.210 of 2011 claiming that they have a fractional share in the petition schedule building and the land appurtenant thereto, and also, that the petitioners are residing in a portion of the building having a separate number assigned by the local authority, which is TC No.36/1373(3). It is contended that the said portion of the building does not form part of the demised premises. The share of the petitioners in the building and the property has not been purchased by the 1[st] respondent. But ignoring the right, title and interest of the petitioners, the 1[st] respondent has been trying to get possession of the entire building. Setting forth such contentions, the petitioners have filed E.A.No.187 of 2019 invoking the provisions of Sections 47 and 151, and Order XXI, Rules 97, 99 and 101 of the Code of Civil Procedure, 1908. 5. The Execution Court, after hearing both sides, dismissed E.A.No.187 of 2019 as per order dated 30.03.2022. It was found that the petitioners failed to prove any independent right, title or interest in the petition schedule 5 O.P.(RC) No.136 of 2022 premises. Challenging the said order, the petitioners have preferred an appeal purportedly under Section 18(1)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 before the Rent Control Appellate Authority (District Judge), Thiruvananthapuram. The District Judge after hearing the counsel of the petitioners held that the appeal was not maintainable. It was ordered as follows: “Heard counsel for petitioner. Since the impugned order is not one passed by Rent Control Court, this RCA filed u/s.18 is not maintainable. Ordered accordingly.” 6. The Execution Court considered E.A.No.187 of 2009 as one filed essentially under Order XXI, Rule 97 of the Code. The right claimed by the petitioners is that they obtained a fractional right in the petition schedule building and the land where it is situated, and as the 1[st] respondent, the landlord, did not purchase their right in the building and the land, she is not entitled to dispossess the petitioners from the petition schedule building under the guise of the order of eviction. The petitioners contend that the double-storied building has three door numbers and without mentioning such door numbers, 6 O.P.(RC) No.136 of 2022 the Rent Control Petition, as well as the Execution Petition, were filed and the 1[st] respondent is trying to dispossess the petitioners. Such a claim can only be treated as one under Order XXI, Rule 97 of the Code. 7. In **Ravi Varma Raja v. Munsiffs Court (Rent Control Execution Court), Quilandy and others [2009 (4) KLT 870]** this Court held that if a petitioner who is not a party to the order of eviction, which is sought to be executed, but a third party files a claim petition/obstruction petition and it is dismissed, his remedy is an appeal under Rule 103 of Order XXI of the Code and not a revision under Section 14 of Act. 8. Therefore, the remedy of the petitioners against the order dated 30.03.2022 dismissing E.A.No.187 of 2019 is an appeal as provided in Section 96 of the Code in the light of the provisions of Order XXI, Rule 103 of the Code. It is seen from the order dated 13.06.2022 of the District Judge, Thiruvananthapuram, that the petitioners preferred the appeal invoking the provisions of Section 18(1)(b) of the Kerala 7 O.P.(RC) No.136 of 2022 Buildings (Lease and Rent Control) Act, 1965. No doubt, such an appeal is not maintainable. So much so, the said order of the District Judge in the capacity of the Appellate Authority is correct. But when the District Judge himself functions as the Rent Control Appellate Authority also, the remedy of the petitioners need not have been foreclosed at the threshold. 9. The District Judge could have treated the appeal as one filed under Section 96 read with Order XXI, Rule 103 of the Code, and if required, directed the petitioners to carry out necessary corrections in the appeal memorandum. Such a course was certainly desirable so as to avoid unnecessary complexity and multiplicity in the proceedings. 10. It is seen that the appeal was happened to be dismissed since it was filed invoking the provisions of Section 18(1)(b) of the Act. The District Judge otherwise has authority to deal with the matter. It is trite that omission or error in mentioning the correct provision of law by itself would not denude the power of the authority to take it so long as the source of power is traceable from an enabling provision. (See, 8 O.P.(RC) No.136 of 2022 **P.R.Naidu v. Govt. of A.P. [AIR 1977 SC 854] ; State of Karnataka v. Krishnaji Srinivas Kulkarni and others [(1994) 2 SCC 558]; B.S.E.Brokers Forum, Bombay and others v. Securities and Exchange Board of India and others [(2001) 3 SCC 482]** ; **High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others [(2003) 4 SCC 712]; Chandra Singh and others v. State of Rajasthan and another [(2003) 6 SCC 545]; Challamane Huchha Gowda v. M. R. Tirumala and another [(2004) 1 SCC 453]; Union of India and another v. S. C. Parasher [(2006) 3 SCC 167] and K.K. Parmar v. H.C. of Gujarat thr. Registrar and others [(2006) 5 SCC 789].** 11. This Court deliberated upon the nature and extent of the powers under Article 227 of the Constitution of India in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019 KLT SN 68)** (rendered by one among us, Anil K. Narendran J.) and held, “The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be 9 O.P.(RC) No.136 of 2022 exercised just for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration in the larger public interest, whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, 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.” 12. In the light of the above, we dispose of this Original Petition by directing the District Judge, Thiruvananthapuram, to receive the unnumbered appeal back on file and proceed with it in accordance with law. The District Judge may, if required, direct the petitioners to carry out necessary amendments in the appeal memorandum so as to make it one filed under Section 96 read with Order XXI, Rule 103 of the Code. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(RC) No.136 of 2022 ## **APPENDIX OF OP (RC) 136/2022** **PETITIONER EXHIBITS ExhibitP1 COPY OF THE ORDER DATED 30-03-2022 IN E.A.187/2019 IN E.P.210/2011 IN RCP 54/2009 OF PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM Exhibit P2 COPY OF THE ORDER DATED 13-06-2022 IN UNNUMBERED RCA OF 2022 OF RENT CONTROL APPELLATE AUTHORITY (PRINCIPAL DISTRICT COURT), THIRUVANANTHAPURAM**