T.C. MUHAMMED THAHA v. K.P.KHOULATH and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 O.P.(RC)NO.96 OF 2021** **AGAINST THE ORDER DATED 03.09.2021 IN I.A No.1 OF 2021 IN RCA 31 OF 2021 OF RENT CONTROL APPELLATE COURT (ADDL. DISTRICT JUDGE - II), THALASSERY, AND THE ORDER DATED 09.04.2021 IN R.C.P.No.79 OF 2019 OF RENT CONTROL COURT (MUNSIFF), KANNUR PETITIONER/PETITIONER/APPELLANT/RESPONDENT:** **T.C. MUHAMMED THAHA, AGED 52 YEARS, S/O.HAJI P ABDULKHADER, BEHIND ENGLISH CHURCH, ANJUKANDY, NEAR DISTRICT HQ HOSPITAL, KANNUR - 670017. BY ADVS. V.R.KESAVA KAIMAL C.S.RAJANI** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 K.P.KHOULATH, AGED 56 YEARS, W/O.LATE MAMMU, HASEEBAS, P.O. PAPPINISSERI WEST, PAPPINISSERI AMSOM AND DESOM, KANNUR - 670561. 2 MUHAMMED HASHIR, AGED 35 YEARS, S/O.K.P. KHOULATH, P.O. PAPPINISSERI WEST, KANNUR - 670561. 3 HASEEBA MAMMU, AGED 34 YEARS, D/O.K.P. KHOULATH, P.O. PAPPINISSERI WEST, KANNUR - 670561. 4 ASSU K.P., AGED 67 YEARS, S/O.MOIDU HAJI, FATHIMA MANZIL, PANNIYANKANDI, NEAR KAMBIL SCHOOL, P.O. KOLACHERY, KANNUR - 670601. 5 ABDUL SAMAD K.P., AGED 66 YEARS, S/O. MOIDU HAJI, JAFNA'S KAMBIL, P.O, KOLACHERY - 670601.** 2 O.P (RC) NO. 96 OF 2021 **6 SAYEED K.P., AGED 56 YEARS, S/O. MOIDU HAJI, CHALIL VAYAL, CHUZHALI, (VIA) SREEKANDAPURAM, KANNUR - 670142. 7 NABEESA, AGED 62 YEARS, D/O. MOIDU HAJI, HAJI MANZIL, MANGADAVU P.O, AROLI, PAPPINISSERI, KANNUR - 670561. 8 ABDU RASHEED K.P., AGED 59 YEARS, S/O. MOIDU HAJI, HAJEE MANZIL, MANGADAVU, P.O, AROLI, PAPPNISSERI KANNUR - 670561, REPRESENTED THROUGH POWER OF ATTORNEY HOLDER, HASEEBA MAMMU, D/O, K.P. KHOULATH, AGED 34 YEARS, P.O, PAPPNISSERI WEST, KANNUR - 670561. 9 ABDUL NAZER, AGED 53 YEARS, S/O. MOIDU HAJI, HAJI K.P HOUSE, P.O AROLI, PAPPINISSERY, KANNUR - 670561, REPRESENTED THROUGH POWER OF ATTORNEY HOLDER HASEEBA MAMMU, D/O.K.P. KHOULATH, AGED 34 YEARS, P.O, PAPPINISSERY WEST, KANNUR - 670561. BY ADVS. V.PREMCHAND SURYA MOHAN P.** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P (RC) NO. 96 OF 2021 ## **JUDGMENT** ## Anil K. Narendran, J The petitioner is the respondent-tenant in R.C.P.No.79 of 2019 on the file of the Rent Control Court, Kannur, a petition filed by the respondents herein-landlords 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 shop room. In that Rent Control Petition, the Rent Control Court passed Ext.P1 order dated 09.04.2021, granting an order of eviction under Sections 11(2)(b) and 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule shop room to the landlords, within one month from the date of that order. On the ground of eviction sought for under Sections 11(2)(b) of the Act, the Rent Control Court, after considering the pleadings and evidence and also the provisions under Sections 9(2) and 11(2)(b) of the Act arrived at a conclusion that the tenant is liable to be evicted from the petition schedule shop room for non payment of rent demanded in Ext.A2 notice dated 07.03.2019. 4 O.P (RC) NO. 96 OF 2021 2. Challenging the order of eviction granted by the Rent Control Court in R.C.P.No.79 of 2019, the tenant filed R.C.A.No.31 of 2021 before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery, invoking the provisions under Section 18(1)(b) of the Act. In that appeal, the tenant filed I.A.No.1 of 2021, seeking stay of the execution of the order of eviction of the Rent Control Court dated 09.04.2021 in R.C.P.No.79 of 2019. In that interlocutory application, after hearing both sides, the Appellate Authority passed Ext.P5 order, whereby the tenant was directed to deposit a sum of Rs.3,23,449/- towards arrears of rent (in terms of Ext.A1 Rent Kachit dated 31.05.2012), within a period of two weeks and the Appellate Authority posted the appeal to 24.09.2021 for payment of arrears of rent. Challenging Ext.P5 order dated 03.09.2021 of the Appellate Authority in I.A.No.1 of 2021 in R.C.A.No.31 of 2021, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 5 ## O.P (RC) NO. 96 OF 2021 3. On 29.09.2021, when this original petition came up for admission, this Court issued urgent notice on admission to respondents 1 to 9 by special messenger, returnable by 04.10.2012. On 13.10.2021, the learned counsel for the respondents-landlords submitted that the landlords are yet to file an execution petition. 4. Heard the learned counsel for the petitionertenant and also the learned counsel for the respondentslandlords. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P5 conditional order of stay granted by the Appellate Authority in I.A.No.1 of 2021 in R.C.A.No.31 of 2021. 6. The learned counsel for the petitioner-tenant would contend that when the order of eviction passed by the Rent Control Court under Section 11(2)(b) of the Act is under challenge in R.C.A.No.31 of 2021 filed by the tenant under Section 18(1)(b) of the Act, the Appellate Authority, in exercise of its powers under Section 18(2) of the Act ought 6 ## O.P (RC) NO. 96 OF 2021 to have granted interim stay of execution of the order of eviction during the pendency of that appeal, without insisting the tenant to pay arrears of rent in terms of Ext.A1 rent Kachit executed by the tenant. 7. Per contra, the learned counsel for the respondents-landlords would contend that, while granting Ext.P5 conditional order of stay in I.A.No.1 of 2021 in R.C.A.No.31 of 2021 the Appellate Authority acted well within the limits of its jurisdiction and as such, no interference is warranted in that order in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 8. The landlord filed R.C.P.No.79 of 2019 under Sections 11(2)(b) and 11(3) of the Act, seeking eviction of the tenant from the petition schedule shop room, on the ground of arrears of rent and bonafide need. Insofar as the ground of eviction under Section 11(2)(b) is concerned, the landlords have produced Ext.A1 rent Kachit executed by the tenant, wherein the rate of monthly rent of the petition schedule shop room is fixed. The rate of monthly rent in 7 ## O.P (RC) NO. 96 OF 2021 Ext.A1 rent Kachit was not in dispute before the Rent Control Court. The only contention raised by the tenant, in order to oppose the order of eviction sought for in R.C.P.No.79 of 2019 under Section 11(2)(b) of the Act was that, there was no arrears of monthly rent, as the tenant was paying rent to Abdul Samad K.P, the 5th respondent herein. In the impugned order, the Rent Control Court held that the tenant cannot escape from the consequence of non-payment of rent by stating that he paid rent to the landlords without a receipt under Section 9(2) of the Act. 9. The order of eviction granted by the Rent Control Court under Section 11(2)(b) and also under Section 11(3) of the Act is under challenge in R.C.A.No.31 of 2021 filed under Section 18(1)(b), which is now pending consideration before the Appellate Authority. In that appeal, the tenant has raised various legal and factual contentions, against the order of eviction passed by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act. While passing Ext.P5 order dated 03.09.2021 in I.A.No.1 of 2021 in R.C.A.No.31 of 2021, the Appellate Authority has only considered the 8 ## O.P (RC) NO. 96 OF 2021 question of staying the execution of the order of eviction passed by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act. After considering the submissions made by the learned counsel on both sides, the Appellate Authority thought it fit to grant an order of stay on payment of a sum of Rs.3,23,449/- towards arrears of rent. 10. It is pertinent to note that, in paragraph 10 of the order of eviction dated 09.04.2021 in R.C.P.No.79 of 2019, the Rent Control Court found that, though the case of the tenant is that there was no arrears of rent and he paid rent without obtaining receipts, admittedly the tenant has not issued a reply notice to Ext.A2 notice dated 07.03.2019 issued on behalf of the landlords. In the said paragraph the Rent Control Court has also dealt with the case of the tenant that, even after the institution of the Rent Control Petition he paid rent to the 5th respondent herein, without obtaining receipt under Section 9(2) of the Act. It is for the Appellate Authority to consider the legality or otherwise of such findings of the Rent Control Court in R.C.A.No.31 of 2021 filed by the tenant, in exercise of the appellate jurisdiction 9 O.P (RC) NO. 96 OF 2021 under Section 18(1)(b) of the Act, untrammeled by any observations contained in this judgment, which are made only for the limited purpose to consider whether any interference is warranted on Ext.P5 order dated 03.09.2021 in I.A.No.1 of 2021 in R.C.A.No.31 of 2021, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 11. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the A ppellate A uthority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently 10 O.P (RC) NO. 96 OF 2021 become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per Section 12(2), the deposit under sub-section (1) shall be made within such time as the c ourt may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), when any deposit is made under sub-section (1), the Rent Control Court or the 11 O.P (RC) NO. 96 OF 2021 Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 12. In the instant case, the order of eviction of the Rent Control Court in R.C.P.No.79 of 2019 is one under Section 11(2)(b) and Section 11(3) of the Act. Section 12(1) of the Act casts an obligation on the tenant to pay the admitted arrears of rent in order to prosecute an appeal preferred under Section 18 against an order passed by the Rent Control Court on an application under Section 11, as held by a Division Bench of this Court in **Pochappan Narayanan v. Gopalan [1990 (2) KLT 1]** . 13. In **Rakesh Menon v. Homex Trade Links (P) Ltd. [2012 (4) KLT 18]** the question as to whether an application invoking the provisions under Section 12 of the Kerala Buildings (Lease and Rent Control) Act is mandatory for the Rent Control Court or the Appellate Authority to 12 O.P (RC) NO. 96 OF 2021 invoke its powers under Section 12 came up for consideration before a Division Bench of this Court. The Division Bench held that, Section 12 of the Act obliges a tenant, against whom a petition for eviction has been filed by a landlord under any one of the various eviction grounds provided under Section 11 to pay or deposit with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building and also to continue to pay or deposit any rent which may subsequently become due in respect of the same building until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. Hence the argument that the landlord has to file a petition under Section 12 of the Act cannot be accepted. If the Rent Control Court or the Appellate Authority notices that the arrears of rent admitted or the rent that fell due subsequently is not paid or deposited within the period specified in Section 12, it is the duty of the Rent Control Court or the Appellate Authority to follow the procedure envisaged by that Section. 13 ## O.P (RC) NO. 96 OF 2021 14. In **Gopala Panicker Baiju and another v. Mallika [2018 (5) KHC 95]** , a Division Bench of this Court held that the admitted arrears is an amount that can be quantified by the Rent Control Court from the rent deed produced by the landlord and the receipts or documents specified under Section 9 of the Kerala Buildings (Lease and Rent Control) Act, evidencing payment of rent, produced by the tenants, unless the rent deed contains anything to the contrary. To sum up, the tenant cannot be allowed to wriggle out from the statutory liability, under Section 12 of the Act, by a blank denial in his counter statement or objection to the application filed under Section 12 of the Act, where the rent deed and receipts would quantify an amount, as admitted arrears of rent, from the admissions therein; but otherwise, the determination empowered with the Rent Control Court contemplated under Section 12(1) of the Act would come to an end, on a bare denial of the tenant and thereby the purpose of Section 12 of the Act itself would be defeated. 14 ## O.P (RC) NO. 96 OF 2021 15. 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 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. 16. 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 15 ## O.P (RC) NO. 96 OF 2021 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. 17. 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 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 16 ## O.P (RC) NO. 96 OF 2021 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 flagrant abuse of fundamental principles of law or justice. 18. 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 17 ## O.P (RC) NO. 96 OF 2021 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. 19. 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 18 ## O.P (RC) NO. 96 OF 2021 the decision of the lower court or tribunal is in direct conflict with settled principles of law. 20. 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 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 19 O.P (RC) NO. 96 OF 2021 natural justice have been flouted. 21. In such circumstances, we find no reason to interfere, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, with the condition imposed by the Rent Control Appellate Authority in Ext.P5 order of stay dated 03.09.2021 in I.A.No.1 of 2021 in R.C.A.No.31 of 2021. In the result, this original petition fails and the same is accordingly dismissed. No order as to costs. The Appellate Authority shall dispose of R.C.A.No.31 of 2021, untrammeled by any observations contained in this judgment, which are made only for the limited purpose to consider whether any interference is warranted on Ext.P5 order dated 03.09.2021, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. ## Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** PV 20 ## O.P (RC) NO. 96 OF 2021 ## **APPENDIX OF OP (RC) 96/2021** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**TRUE COPY OF THE ORDER DATED**| |---|---| ||**09.04.2021 IN R.C.P NO.79/2019 PASSED**| ||**BY THE RENT CONTROL COURT, KANNUR.**| |**Exhibit P2**|**TRUE COPY OF THE MEMORANDUM OF APPEAL**| ||**IN R.C.A NO. 31/2021 ON THE FILES OF**| ||**RENT CONTROL APPELLATE AUTHORITY**| ||**(ADDL.DISTRICT JUDGE-II), THALASSERY.**| |**Exhibit P3**|**TRUE COPY OF THE AFFIDAVIT IN IA. NO.**| ||**1/2021 IN R.C.A NO.31/2021 ON THE**| ||**FILES OF RENT CONTROL APPELLATE**| ||**AUTHORITY, (ADDL.DISTRICT JUDGE - II)**| ||**THALASSERY.**| |**Exhibit P4**|**TRUE COPY OF THE COUNTER FILED BY THE**| ||**THIRD RESPONDENT TO EXT P3.**| |**Exhibit P5**|**TRUE COPY OF THE ORDER DATED**| ||**03.09.2021 IN IA NO.1/2021 IN R.C.A**| ||**NO.31/2021 PASSED BY THE RENT CONTROL**| ||**APPELLATE AUTHORITY (ADDL. DISTRICT**| ||**JUDGE II) THALASSERY.**|