Venugopal v. Ancy Anna Isaac

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ``` & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 30[TH]DAY OF JANUARY 2023 / 10TH MAGHA,1944 ``` ``` OP (RC) NO. 19 OF 2023 ``` ``` ORDER DATED 06.01.2023 IN IA NO.16 OF 2022 IN RCP 4/2017 OF MUNSIFF COURT, MAVELIKKARA ``` ## **`PETITIONER/PETITIONER/RESPONDENT:`** ``` VENUGOPAL, NOW AGED 65 YEARS, S/O.BHASKARAN PILLAI, ARIYANNOR PEEDIKAYIL HOUSE, RAMACHANDRA VILASAM, PERINGALPPURAM THEKKUM MURI, PERINGALIPPURAM P.O., ENNAKKAD VILLAGE, CHENGANNUR TALUK, ALAPPUZHA, PIN – 689624. ``` ``` BY ADVS. SRI.T.S.HARIKUMAR SRI.P.B.SAHASRANAMAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` ANCY ANNA ISSAC, NOW AGED 32 YEARS, D/O ISSAC JOHN, NADAYUDE THEKKATHI HOUSE, PUTHIYAKAVU MURI, MAVELIKARA VILLAGE, MAVELIKARA TALUK, MAVELIKARA P.O, ALAPPUZHA, PIN – 690101. ``` ``` BY ADV SRI. RAJESH R KORMATH ``` ``` THISOP(RENTCONTROL)HAVINGCOMEUPFORADMISSIONON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(RC)No.19 of 2023 2 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. ------------------------------------------OP(RC) No. 19 of 2023 -------------------------------------------** Dated this the 30[th] day of January, 2023 ## **J U D G M E N T** ## **Sophy Thomas, J.** The respondent/tenant in RCP No.4 of 2017 on the file of Rent Control Court, Mavelikara, is the petitioner herein, challenging Ext.P8 common order dated 06.01.2023 in I.A.Nos.14 of 2022 and 16 of 2022 in the RCP. 2. I.A.No.14 of 2022 was filed by the landlord and I.A.No.16 of 2022 was filed by the tenant, both under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, (hereinafter referred to as ‘CPC’), seeking appointment of a Commissioner for local inspection. As per common order dated 06.01.2023, the learned Rent Control Court allowed both the applications, except the facts to be reported by the Commissioner in I.A.No.16 of 2022, which required oral inquiries by the Commissioner. 3. Aggrieved by Ext.P8 common order, the petitioner/tenant approached this Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. When this original petition OP(RC)No.19 of 2023 3 came up for admission, notice before admission was ordered, simultaneously to serve notice through the counsel appearing for the landlord before the trial court, as well. 4. RCP No.4 of 2017 was filed by the landlord, seeking eviction under Section 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’). The tenant opposed that petition banking upon the Second Proviso to Section 11(3) contending that the business in the scheduled shop room is the main source of his livelihood and no other suitable rooms are available in that locality to carry on his business. After closing the evidence of the landlord, the tenant examined two independent witnesses to say that no suitable shop rooms are available in that locality. Then the landlord filed I.A.No.14 of 2022 for appointing an Advocate Commissioner to ascertain the availability of vacant shop rooms within the limits of Mavelikara Municipal area, where the schedule room is situated. The respondent/tenant also filed I.A.No.16 of 2022 for appointing an Advocate Commissioner to ascertain whether any vacant rooms are available in that locality to carry on his business, and also to report whether the owners of such buildings, if any, are willing to give their rooms to the respondent to conduct his business of pesticides. 5. Heard Adv.Sri.T.S.Harikumar, the learned counsel for the petitioner and Adv.Sri.Rajesh Kormath, the learned counsel for the OP(RC)No.19 of 2023 4 respondent. 6. Obviously from the facts available, the landlord as well as the tenant wanted to appoint an Advocate Commissioner to ascertain whether any vacant rooms are available in that locality suitable for the tenant to carry on his business. The learned Rent Control Court allowed the prayer of both, but refused the prayer of the tenant which required an inquiry to be conducted by the Commissioner. The Commissioner was asked to report the address of owners of the building, if vacant rooms are available within a radius of 50 metres from the petition scheduled room, and also to report whether those owners are willing to lease out their building to the tenant for conducting his business of pesticides etc. Further he was asked to report the fact that the mother of the petitioner/landlord is not permanently residing in the house of the petitioner/landlord, the extent of the residential plot of the petitioner/landlord, and the annual income derived from that property etc. etc. Those prayers were rejected by the learned Rent Control Court. 7. Order XXVI Rule 9 of CPC reads as follows: ## “ **9. Commissions to make local investigations** In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any _mesne_ profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit OP(RC)No.19 of 2023 5 directing him to make such investigation and to report thereon to the court: PROVIDED that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules.” 8. In a petition for eviction under Section 11 (3) of the Act, as per the Second Proviso, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building, and there is no other suitable building available in the locality for such person to carry on such trade or business. The onus to prove that there are no suitable buildings available in the locality is upon the tenant. The availability of a suitable building in the locality being a negative aspect, the nature and quantum of evidence that has to be proved by the tenant may, be confined to a positive affirmation by the tenant before the Court, that no suitable building is available in the locality, not successfully challenged in cross-examination. Then the burden shifts to the landlord since he can positively prove the fact that buildings/building are/is available. [reliance placed on **Sadanandan v. Kunheen** (1991 KHC 474)]. 9. As far as the landlord in an eviction petition is concerned, he needs only to point out availability of the building, and for that OP(RC)No.19 of 2023 6 purpose, he filed I.A.No.14 of 2022. Now the question posed before us is whether there is any patent error or illegality in Ext.P8 order so as to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 10. Since both the landlord and the tenant wanted to report whether any vacant rooms are available in the locality, where the petition schedule room is situated, there is nothing illegal in appointing a common Commissioner in the above RCP. Regarding rejection of the prayers which require the Commissioner to conduct an inquiry as to the ownership of the vacant rooms, if any available, as to the willingness of its owners to lease out those rooms for the pesticide business of the tenant etc. are beyond the scope of Order XXVI Rule 9 of CPC, as the local investigation was ordered exclusively for elucidating the matter in dispute, more particularly, to report whether any vacant rooms are available in that locality suitable for the tenant to carry on his business. The Commissioner is expected to report only regarding the availability of vacant shop rooms, if any, in that locality, and nothing more. Whether the owner of that building is ready to lease out that building to the tenant is not a matter to be inquired into by the Commissioner. 11. Regarding prayer Nos.5 and 6 in Ext. P5 Commission Application filed by the tenant, it has nothing to do with the issue in OP(RC)No.19 of 2023 7 question. Whether the mother of the landlord is staying permanently or not in the house of the landlord, the extent of the property of the landlord, the income derived therefrom etc. etc. are extraneous matters, which have nothing to do with the prayer in the RCP is concerned. The learned Rent Control Court rightly rejected the prayers in I.A.No.16 of 2022, which required an oral inquiry to be conducted by the Commissioner to answer the same as well as matters, which were extraneous to the dispute involved in the RCP. Hence, no illegality or patent perversity is noted, so as to interfere with Ext.P8 order. So the OP(RC) is not liable to be admitted. 12. The above RCP is of the year 2017. Major portion of the evidence is being recorded. What is remaining is to get the Commission Report as ordered in Ext.P8. This Court, as per the decision in RCRev. No.22 of 2010, issued general guidelines to all the Rent Control Courts in the State for speedy disposal of the pending Rent Control Petitions in a time bound manner. ( **Irvin John Jayarajan and Others v. Madhavi alias Narayani Amma and Others** [2022 (7) KHC 1]). In the light of the directions given in that case, we direct the learned Rent Control Court to get the Commission Report, as per Ext.P8, within a period of three weeks from today and to dispose the RCP itself within a period of three weeks therefrom, and at the most, on or before 15.03.2023. OP(RC)No.19 of 2023 8 With the above direction, the OP(RC) is dismissed _in limine_ . The Registry of this Court is directed to communicate this order to the learned Rent Control Court forthwith, for compliance. Sd/- ## **P.B.SURESH KUMAR JUDGE** Sd/- **SOPHY THOMAS JUDGE** DSV/01.02.2023 OP(RC)No.19 of 2023 9 ## **`APPENDIX OF OP (RC) 19/2023`** ## **`PETITIONER'S EXHIBITS :`** ``` Exhibit1 P.1 ``` ``` THE TRUE PHOTOSTAT COPY OF THE I.A.NO.13 OF 2022 IN R.C.P. NO.4 OF 2017 FILED BEFORE THE RENT CONTROL COURT, MAVELIKARA, DATED 21-11-2022. ``` - **`Exhibit P.2 THE TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.13 OF 2022 IN R.C.P. NO.4 OF 2017 FILED BEFORE THE RENT CONTROL COURT, MAVELIKARA DATED 25-11-2022.`** - **`Exhibit P.3 THE TRUE PHOTOSTAT COPY OF THE I.A.NO.14 OF 2022 IN R.C.P.NO.4 OF 2017 FILED BEFORE THE RENT CONTROL COURT, MAVELIKARA, DATED 21-11-2022.`** - **`Exhibit P.4 THE TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.14 OF 2022 IN R.C.P. NO.4 OF 2017 FILED BEFORE THE RENT CONTROL COURT, MAVELIKARA DATED 25-11-2022.`** - **`Exhibit P.5 THE TRUE PHOTOSTAT COPY OF THE I.A.NO.16 OF 2022 IN R.C.P.NO.4 OF 2017 FILED BEFORE THE RENT CONTROL COURT, MAVELIKARA, DATED 16-12-2022.`** - **`Exhibit P.6 THE TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.16 OF 2022 IN R.C.P. NO.4 OF 2017 FILED BEFORE THE RENT CONTROL COURT, MAVELIKARA DATED 19-12-2022.`** ``` Exhibit P.7THE TRUE PHOTOSTAT COPY OF THE ORDER IN I.A.NO.13 OF 2022 IN R.C.P.NO.4 OF 2017 OF THE RENT CONTROL COURT, MAVELIKARA, DATED 06-01-2023. ``` OP(RC)No.19 of 2023 10 ## **`Exhibit P.8`** ``` THE TRUE PHOTOSTAT COPY OF THE COMMON ORDER IN I.A.NO.14 OF 2022 AND I.A.NO.16 OF 2022 IN R.C.P.NO. 4 OF 2017 OF THE RENT CONTROL COURT, MAVELIKARA, DATED 06-01-2023. ``` ``` RESPONDENT'S EXHIBITS : NIL ```