UMMER FAROOK A.V v NANGIYARATH MOIDU, NANGIYARATH KUNHABDULLA, NAMBIDIKAYIL MUHAMMED

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` # **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 ``` # **`OP (RC) NO. 96 OF 2024`** ``` AGAINST THE ORDER DATED 05.02.2024 IN RCP NO.204 OF 2018 OF RENT CONTROL COURT (ADDITIONAL MUNSIFF), KOZHIKODE-I ``` ``` PETITIONER: ``` ``` UMMER FAROOK A.V AGED 52 YEARS, S/O. ASSANKOYA N.M, CHEVAYUR AMSOM, DESOM KOZHIKODE, PIN - 673017 ``` ``` BY ADVS.SHARAN SHAHIER RAKHY BABY TREESA SHAJI NISHAN AHAMMED MULLAVEETTIL ``` ## **`RESPONDENTS:`** ``` 1 NANGIYARATH MOIDU AGED 64 YEARS, S/O. AMMED, AAYANCHERY AMSOM, DESOM, P.O. AAYANCHERY, VADAKARA TALUK., PIN - 673101 2 NANGIYARATH KUNHABDULLA AGED 62 YEARS, S/O. AMMED, AAYANCHERY AMSOM, DESOM, P.O. AAYANCHERY, VADAKARA TALUK., PIN - 673101 3 NAMBIDIKAYIL MUHAMMED AGED 62 YEARS, S/O. KUNHABDULLA, AAYANCHERY AMSOM, DESOM, P.O. AAYANCHERY, VADAKARA TALUK., PIN - 673101 THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(RC) No.96 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent–tenant in RCP No.204 of 2018 on the file of the Rent Control Court (Additional Munsiff–I), Kozhikode, a petition filed by the respondents herein–landlords, seeking eviction of the tenant from the petition schedule shop rooms on the ground of arrears of rent and _bona fide_ need. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the landlords to start a hotel utilising the two shop rooms, one on the ground floor and the other on the first floor. The tenant entered appearance and filed counter affidavit, opposing the order of eviction sought for. The tenant raised a contention that the shop rooms are not suitable for the need projected in the Rent Control Petition. Ext.P1 is a copy of the Rent Control Petition and Ext.P2 is a copy of the counter statement filed by the tenant. 2. Before the Rent Control Court, the Advocate Commissioner, appointed in I.A.No.3091 of 2019, filed Ext.P3 report dated 21.12.2019, enclosing therewith a detailed sketch. The tenant filed I.A.No.1 of 2020 to remit the report of the Advocate Commissioner, in which the landlords filed their objections. A copy of that interlocutory application is marked as 3 O.P.(RC) No.96 of 2024 Ext.P4. The landlords filed Ext.P5 counter statement dated 03.06.2020 in that interlocutory application. Thereafter the Rent Control Court passed an ex parte order of eviction vide Ext.P6 order dated 15.11.2022, which was later set aside by the order dated 03.07.2023. Since the Advocate Commissioner, who submitted Ext.P3 report dated 21.12.2019 is not available for inspection, another Advocate Commissioner was appointed to conduct inspection of the petition schedule shop rooms, who submitted Ext.P7 report dated 10.08.2023, along with detailed sketch. 3. The tenant filed I.A.No.5 of 2023, seeking an order to remit Ext.P7 report of the Advocate Commissioner. In that interlocutory application, i.e., Ext.P8 application, the landlords filed Ext.P9 counter statement dated 17.10.2023. After considering the rival contentions, the Rent Control Court dismissed I.A.No.5 of 2023 in RCP No.204 of 2018 by Ext.P10 order dated 05.02.2024, which is under challenge in this original petition filed by the petitioner-tenant invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. Heard the learned counsel for the petitioner-tenant. 5. The issue that requires consideration in this original petition is as to whether any interference is warranted on Ext.P10 4 O.P.(RC) No.96 of 2024 order of the Rent Control Court in I.A.No.5 of 2023 in R.C.P. No. 204 of 2018. 6. The learned counsel for the petitioner-tenant would contend that the Rent Control Court committed a grave error in dismissing I.A.No.5 of 2023 filed by the tenant to remit Ext.P7 report dated 10.08.2023 of the Advocate Commissioner, since it is essential for the adjudication of a technical contention raised by the tenant with reference to the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act. Such an exercise is necessary in order to prove the contention of the tenant that the need projected in the Rent Control Petition is not bona fide. For such an exercise, the appointment of a qualified structural engineer for inspecting the petition schedule shop rooms is necessary. 7. 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. 8. 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 5 O.P.(RC) No.96 of 2024 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. 9. In the light of the law laid down in the decisions referred to supra, an order passed by the Rent Control Court in an interlocutory application can be interfered with, only in cases in which the reasoning of the Rent Control Court is perverse, patently illegal or any of the limited grounds for challenge is available in an original petition filed under Article 227 of the Constitution of India. The reasoning of the Rent Control Court in the impugned order cannot be said to be either perverse or patently illegal, warranting an interference in this original petition. 10. The reasoning of the Rent Control Court, as contained in paragraphs 4 to 6 of Ext.P10 order dated 05.02.2024 in I.A.No.5 of 2023 in RCP No.204 of 2018 reads thus; 6 O.P.(RC) No.96 of 2024 ‘4. **The point** : At the outset, I may state that the RCP was filed under Section 11(2)(b) and 11(3) of KBLR Act. The case put forth by the petitioners is that they intend to start a hotel business on the scheduled premise. The Advocate Commissioner after giving notice to both sides inspected the property on 03.08.2023 and filed a report. Para 9 and 10 of the said report are reproduced hereunder: “ഹർജി പ്ടികയിലെ രണ്ടാം ന്ᩘർ കടമുറിയുലട പടി്ഞടറ് ഭടഗ്ᩈ് ഒന്ടാം ന്ᩘർ കടമുറിയുമടയി നനരി്ട് ബ്യി്ᩔി്ᨪടൻ നേണ്ി കൃത്യമടയ ക്കമീകരണ്ങന ടടുകൂടി ഒരു ലെയർലക്ᩧ് ഘടി്ᩔി്ᨪുന്ത്ിന് ആേശ്യമടയ സൗകരയാം ഉ്ᩦത്ടയി് ണ് എന്ലറ പരിനശ്ടധന നേ യിൽ എനി്ᨪ് കടണടൻ സടധി്ചത്. ഈ രീത്ിയിൽ ലക്ടിട്ᩈിന് ഉ്ᩦിൽ കൂലട ത്ലന് ഒരു ലെയർലക്ᩧ് . സൗകരയാം ഉണ്ട്ᨪിലയടു്ᨪടേുന്ത്ടണ് 10. ഒന്ുാം രണ്ുാം പീടിക മുറിക ിൽ നേണ്ത്ടയ അേിലട ക്കമീകരണ്ങൾ നട്ᩈിയടൽ ഒരു നഹട്ടൽ ബിസിന് നട്ᩈുന്ത്ിന് ആേശ്യമടയ സൗകരയാം ഉണ്ടകുാം എന്ടണ് പരിനശ്ടധനയിൽ എനി്ᨪ് നത്ടന്ിയത്.” 5. The case of the petitioner/tenant is that it is not possible to construct a staircase through the interior of the scheduled premise for the reason that creating a hole on the top of the room for the purpose of the staircase will affect the strength of the entire building. It is also their case that if a staircase is constructed inside the premise shown in sketch I, submitted along with the report, it would cover a major portion of the said room. They have also raised a contention that the scheduled premises are not suitable to start a hotel business. Hence the petitioner would contend that the 7 O.P.(RC) No.96 of 2024 Commissioner has to inspect the property with the assistance of a qualified Engineer. 6. It is pertinent to note that the tenant cannot dictate as to how or in what manner the landlord should make use of the premise for his bona fide need. It is not the requirement of law that the landlord has to obtain a building permit and plan before getting an order of eviction under Section 11(3). What Section 11(3) mandates is that the landlord should have a need which is bona fide. How the landlord should use the premise to suit his bona fide need is entirely the discretion of the landlord and the tenant has no say in it. Ever if it is found that the proposed staircase in the scheduled premises would affect the strength of the building, that cannot be an indicator to prove that the respondents had no bona fides. It is for the appropriate authorities to decide whether a permit has to be granted for construction of the said staircase. Even if the permit is not granted, the respondents herein could go for other options for the construction of a staircase. Similar is the case with waste water management plants and construction of a kitchen. It is for the landlord to decide. Hence I find that appointing a structural Engineer is not required in the facts and circumstances of this case. Even otherwise, the respondents are at liberty to adduce evidence to show that the landlords will not get a building permit for hotel business in the scheduled premise. As far as the findings of the Advocate Commissioner regarding existence of vacant rooms in the locality, there is nothing in the report to show that the Advocate Commissioner had not inspected the inside of the vacant rooms mentioned in the report. It is pertinent to note that no steps were taken by the petitioner 8 O.P.(RC) No.96 of 2024 to examine the Advocate Commissioner to prove their contentions in the petition. 11. In Ext.P10 order, the Rent Control Court noticed that the Rent Control Petition is of the year 2018. When it was listed for trial on 02.08.2023, the tenant filed application for remitting Ext.P3 commission report dated 21.12.2019, which was allowed based on the orders passed in I.A.No.1 of 2020. Thereafter, Ext.P7 report was filed on 10.08.2023 and the Rent Control Petition was again listed for trial on 02.11.2023. At that time, the tenant filed Ext.P9 interlocutory application dated 17.10.2023, for remitting Ext.P7 report of the Advocate Commissioner. After considering the said fact and also the facts and circumstances of the case, as discernible from paragraphs 4 to 6 of Ext.P10 order, the Rent Control Court arrived at a conclusion in paragraph 8 of that order that the tenant has not made out a case for remitting Ext.P7 report dated 10.08.2023 of the Advocate Commissioner, for a fresh report with the assistance of a structural engineer. The Rent Control Court found that such a report is not essential for an effective adjudication of the dispute involved in the Rent Control Petition. 12. We also notice that though Ext.P10 order is one dated 05.02.2024, the petitioner-tenant has chosen to challenge the 9 O.P.(RC) No.96 of 2024 same before this Court only on 31.07.2024, by filing this original petition. 13. In the above circumstances, we find no reason to interfere with Ext.P10 order dated 05.02.2024 in I.A.No.5 of 2023 in RCP No.204 of 2018. The reasoning of the Rent Control Court cannot be said to be either perverse or patently illegal warranting interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, the original petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** anm 10 O.P.(RC) No.96 of 2024 ## **`APPENDIX OF OP (RC) 96/2024`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1`** - **`A TRUE COPY OF THE RCP 204/2018 DATED 04.12.2018 UNDER SECTION 11(2) (B) AND 11 (3) OF THE KERALA BUILDING (LEASE AND RENT) ACT BEFORE THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG WITH ENGLISH TRANSLATION`** - **`Exhibit P2 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER/ TENANT DATED 22.05.2019 BEFORE THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG WITH ENGLISH TRANSLATION`** - **`Exhibit P3`** - **`A TRUE COPY OF THE REPORT DATED 21.12.2019 IN IA NO. 3091/2019 IN RCP 204/2018 BY THE ADVOCATE COMMISSIONER BEFORE THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG WITH ENGLISH TRANSLATION`** - **`Exhibit P4 A TRUE COPY OF THE IA 1/2020 IN RCP 204/2018 FILED BY THE PETITIONER DATED 10.03.2020 BEFORE THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG WITH ENGLISH TRANSLATION`** - **`Exhibit P5 A TRUE COPY OF THE COUNTER IN IA 1/2020 IN RCP 204/2018 FILED BY THE RESPONDENTS BEFORE THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE DATED 03.06.2020 ALONG WITH ENGLISH TRANSLATION`** - **`Exhibit P6 A TRUE COPY OF THE ORDER DATED 15.11.2022 BEFORE THE RENT CONTROL COURT/ADDITIONAL MUNSIFF - I, KOZHIKODE IN RCP 204/2018`** - **`Exhibit P7 A TRUE COPY OF THE ADVOCATES COMMISSION REPORT DATED 10.08.2023 IN RCP 204/2018 ALONG WITH ENGLISH TRANSLATION`** - **`Exhibit P8`** - **`A TRUE COPY OF THE IA 5/2023 IN RCP 204/2018 FILED BY THE PETITIONER BEFORE`** 11 O.P.(RC) No.96 of 2024 ``` THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE DATED 07.09.2023 ALONG WITH ENGLISH TRANSLATION ``` ``` Exhibit P9A TRUE COPY OF THE COUNTER IN IA 5/2023 IN RCP 204/2018 FILED BY THE RESPONDENTS BEFORE THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE DATED 17.10.2023 ``` ``` Exhibit P10 ``` ``` A TRUE COPY OF THE ORDER DATED 05.02.2024 IN IA 5/2023 IN RCP 204/2018 PASSED BY THE RENT CONTROL COURT /ADDITIONAL MUNSIFF-I, KOZHIKODE ```