Siraj v. C.S. Sathyamoorthy and Sherina

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 O.P.(RC) NO. 124 OF 2022** **AGAINST THE ORDER DATED 05.04.2022 IN I.A.NO.2 OF 2022 IN R.C.A.NO.27 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (I ADDITIONAL DISTRICT JUDGE), ERNAKULAM** **PETITIONER:** **SIRAJ AGED 42 YEARS, S/O MUHAMMAD ALI, FIDHA DESIGNER BOUTIQUE, DOOR NO. 41/208 A, Y.M.C.A JUNCTION, CHITOOR ROAD, KOCHI - 682 035, PRESENTLY RESIDING AT SURAJ MANZIL, DR. PALPU LANE, SRM ROAD, KOCHI, PIN – 682018. BY ADVS. RONY JOSE ENOCH DAVID SIMON JOEL S.SREEDEV LEO LUKOSE SUZANNE KURIAN CIMIL CHERIAN KOTTALIL** ## **RESPONDENTS:** **1 C.S.SATHYAMOORTHY AGED 69 YEARS, S/O LATE C. SREEDHARAN PILLAI, VRINDAVAN, 37/1099 - B, KUMARANASAN ROAD, KOCHI, PIN – 682017.** 2 O.P.(RC) No.124 of 2022 **2 SHERINA** **AGED 43 YEARS W/O LATE MUHAMMAD SIDDIQUE, PADIYATH HOUSE, EAST SIDE OF BLOCK JUNCTION, VELLANGALLUR P.O. THRISSUR DISTRICT, PIN – 680662. R1 BY ADV.A.BALAGOPALAN.** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 28.06.2022, THE COURT ON 13.07.2022 DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.124 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner is the appellant in R.C.A.No.27 of 2020 pending before the Rent Control Appellate Authority (I Additional District Judge), Ernakulam. I.A.No.2 of 2022 filed by the petitioner seeking appointment of an Advocate Commissioner as provided in Order XXVI, Rule 9 of the Code of Civil Procedure, 1908, was dismissed as per Ext.P7 order. The petitioner wants to set aside Ext.P7 order for which he has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the 1[st] respondent. 3. Ext.P1 is a copy of the petition in R.C.P.No.119 of 2017 filed by the 1[st] respondent-landlord before the Rent Control Court (Additional Munsiff), Ernakulam, seeking eviction under Sections 11(3) and 11(4)(i) of the Kerala 4 O.P.(RC) No.124 of 2022 Buildings (Lease and Rent Control) Act, 1965. Ext.P2 is the copy of the objection filed by the petitioner, who was the 2nd respondent, in the rent control petition. It was alleged that the petitioner is the sub-tenant. The Rent Control Court accepted that contention. It was also found that the need urged by the 1[st] respondent was bona fide, resulting in ordering eviction under Sections 11(3) and 11(4)(i) of the Act. The tenant is the 2nd respondent herein. He did not contest the matter. The petitioner now has filed R.C.A.No.27 of 2020 challenging Ext.P3, order of eviction. In the appeal, the petitioner has filed Ext.P5, commission application. The reason for appointing a commission is stated in paragraph No.3 of the affidavit, which reads,- “3. During the pendency of the above appeal, the 1[st] respondent/landlord obtained vacant possession of the room adjacent to the petition schedule room and which is more than sufficient to satisfy the requirement of starting a boutique for his son and daughter-in-law. However, this subsequent development has been suppressed by the 1[st] respondent from this Hon'ble Court. In order to bring this fact to the notice of this Hon'ble Court, it is just and necessary that this Hon'ble 5 O.P.(RC) No.124 of 2022 court may be pleased to appoint an Advocate Commissioner for local inspection and direct to file a report as to the availability of the vacant room adjacent to the petition schedule room in the absolute possession and enjoyment of the 1[st] respondent.” 4. The 1[st] respondent filed a counter-affidavit, a copy of which is Ext.P6, denying the said contentions and also maintaining that the petitioner, being a sub-tenant, is not entitled to apply for the appointment of a commission. 5. The Appellate Authority considered the rival contentions and dismissed the petition. The reasons thereof as stated in paragraph No.5 of the order reads thus,- “5. It is seen from the case records that the lower court ordered eviction of the present petitioner as well as the original tenant, who is the 2nd respondent in this appeal, on the ground of bonafide need for own occupation as well as unauthorised sub lease. The sub tenant who is said to be in unauthorised occupation of the petition schedule building is none other than the present petitioner who is the appellant in this R.C.Appeal. It is true that he had been arraigned as a formal party in the original RCP filed by the landlord. But that would no way confer any right or authority to challenge the bonafide need for own occupation claimed by the landlord as the 6 O.P.(RC) No.124 of 2022 ground for getting possession of the petition schedule building. The prayer in this petition for the appointment of an advocate commissioner for ascertaining the vacant rooms in possession of the landlord cannot be allowed since the petitioner who is unauthorisedly holding the petition schedule building as a sub tenant cannot resist the claim of the landlord to have possession of the petition schedule building for his bonafide need of own occupation. The proposition of law in this regard had been laid by the Hon'ble High Court of Kerala in Varghese Ittoop vs. M.Ibrahim and Others MANU/KE/ 0542/1991. It has been held by the Hon'ble High Court of Kerala in unequivocal terms in the aforesaid decision that a sub tenant, unless there is a privity of contract between him and the landlord, has no locus standi to challenge the decree of eviction passed against the original tenant. It is further held therein that merely because he is made a formal party to the proceedings for eviction, it does not clothe him with the right to challenge the order of eviction passed in favour of the landlord, and that this sub tenant cannot be considered as a person aggrieved against such an order.” 6. Ext.P5 application was thus dismissed essentially for the reason that the petitioner being a sub-tenant is not entitled to apply for the appointment of a commission. The definite contention of the petitioner from the very beginning is 7 O.P.(RC) No.124 of 2022 that he is not an unsolicited sub-tenant. He contended that he was acknowledged as the tenant by the 1[st] respondentlandlord. Raising such a ground he filed R.C.A.No.27 of 2020. Therefore, the finding of the Rent Control Court that the petitioner is a sub-tenant liable for ejectment from the tenanted premises is yet to become final. 7. The learned counsel appearing for the petitioner concedes that only if his plea against the allegation of sub-lease succeeds, a report by a commissioner as sought in Ext.P5 application would be relevant. The question of sub-tenancy is pending consideration of the Appellate Authority. It is accordingly contended that it would be premature to hold that the petitioner is a sub tenant who cannot be afforded with an opportunity to bring on record a common report as an item of evidence. We are of the view that there is substance in that contention. It is correct to say that such a report may become relevant once the petitioner succeeds in his plea that he is a tenant and not a sub-tenant. 8. But that alone would not help us to have a decision 8 O.P.(RC) No.124 of 2022 on the question. As pointed out above, the petitioner only alleges that a room adjacent to the petition schedule premises fell vacant and details of such a room are to be ascertained by the Commissioner. ## 9. In **Kakkottakath Puthiyapurayil Muhammed Ali and others v. Kakkottakath Puthiyarambth Mahamood and others [ILR 2022 (2) Ker.1158]** , this Court observed that,- “15. It is clear from the provisions under Order XXVI, Rule 9 of the Code that, the court can appoint a commission for local inspection only when it finds that a local inspection by the commission is required for the purpose of elucidating any matter in dispute or for any other purpose mentioned in the said Rule. Therefore, in a case in which the tenant has not discharged the initial burden of proof under the first proviso to Section 11(3) of the Act, by disclosing the identity of any vacant building in the possession of the landlord, he cannot be permitted to take out a commission for local inspection, since a local inspection by a commission is required only for the purpose of elucidating any matter in dispute.” 10. Here, in Ext.P2 objection, the petitioner had no contention that the landlord was in possession of any vacant room or building with him. The contention now raised is that 9 O.P.(RC) No.124 of 2022 recently a room fell vacant and in order to report the details of that vacant room, a Commissioner needs be appointed. It is however not stated in Ext.P5 the details of such a room. What is averred is that a room adjacent to the petition schedule shop room fell vacant. The word 'adjacent' can have several connotations. Where exactly the so-called vacant room is situated, what is its identity, to which building it forms part or any such features or data sufficient to identify the room have not been stated in the petition. In these circumstances, the principles laid down in **Kakkottakath Puthiyapurayil Muhammed Ali** (supra) is squarely applicable in this case also. Hence, we are of the view that Ext.P9 order of the Appellate Authority dismissing the application for appointment of a Commission is not liable to be interfered with. Hence, this original petition is dismissed. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(RC) No.124 of 2022 ## **APPENDIX OF OP (RC) 124/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1 THE TRUE COPY OF THE RENT CONTROL PETITION FILED BY THE 1ST RESPONDENT HEREIN AS RCP 119 OF 2017 ON THE FILES OF THE 3RD ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM.** - **Exhibit P2 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER(2ND RESPONDENT IN RCP) IN RCP 119 OF 2017 ON THE FILES OF THE 3RD ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM.** - **Exhibit P3 A TRUE COPY OF THE ORDER DATED 16.01.2020 IN RCP 119 OF 2017 ON THE FILES OF THE 3RD ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM.** - **Exhibit P4 THE TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER IN RCA 27 OF 2020 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM.** - **Exhibit P5 A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER AS I.A.NO.2 OF 2022 IN RCA 27 OF 2020 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM.** - **Exhibit P6 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN I.A 2 OF 2022 IN RCA 27 OF 2020 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM.** - **Exhibit P7 A TRUE COPY OF THE ORDER DATED 05.04.2022 IN I.A 2 OF 2022 IN RCA 27 OF 2020 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM.**