Kerala High Court
M.O.Varghese vs Dr.Issac P. Mathew on 26 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
OP (RC) NO. 67 OF 2021
AGAINST THE ORDER IN I.A.NO.2/2021 IN R.C.P.NO.197/2018
DATED 15.03.2021 OF III ADDITIONAL MUNSIFF AND RENT
CONTROL COURT, ERNAKULAM
PETITIONER:
M.O.VARGHESE, AGED 90 YEARS,
PARTNER, WESTEND TYRES, SHOP ROOM NOS. 248 &
249, BENISTA BUILDING, SAHODARAN AYYAPPAN ROAD,
PANAMPILLY NAGAR, KOCHI - 682 036.
BY ADV BABU CHERUKARA
RESPONDENT:
DR.ISSAC P. MATHEW
AGED 84 YEARS
S/O. MATHEW, MUNDUVELIL PUTHEN VEETIL,
MAVELIKKARA, ALAPPUZHA DISTRICT, REPRESENTED BY
HIS POWER OF ATTORNEY HOLDER KOSHY MATHEW, S/O.
T. V. MATHEW, RESIDING AT 33/1201 E, MSN ROAD,
VENNALA P. O., CHALIKKAVATTOM, ERNAKULAM,
PIN - 682 028.
BY ADV C.SREEKUMARAN NAIR (CSN)
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(RC)No.67 of 2021
2
JUDGMENT
Anil K. Narendran, J.
The petitioner is the tenant in R.C.P.No.197 of 2018 on
the file of the Rent Control Court (III - Additional Munsiff),
Ernakulam, a petition filed by the respondent-landlord under
Section 11(2)(b) of the Kerala Buildings (Lease and Rent
Control) Act, 1965, seeking eviction of the tenant from the
petition schedule shop rooms on the ground of arrears of rent
amounting to Rs.12,43,520/-, as on 04.10.2018, in respect of
the said shop rooms. In R.C.P.No.197 of 2018 (Ext.P1), the
tenant filed an objection dated 23.03.2019 (Ext.P2). On
27.01.2021, the tenant filed I.A.No.2 of 2021 (Ext.P3), seeking
an order to appoint an Advocate Commission for local
inspection of the petition schedule shop rooms and to file a
report, with the assistance of an expert engineer, on the lie and
nature of the said shop rooms and its floor area.
2. In the affidavit filed in support of I.A.No.2 of 2021,
it is stated that, the landlord has calculated arrears of rent
based on the averment that each room is having a floor area of
60 square meters. The tenant has already contended that the
O.P.(RC)No.67 of 2021
floor area calculated by the landlord is not correct. However,
the landlord has not taken steps to bring evidence to show that
the floor area of each room is 60 square meters. In the proof
affidavit the landlord has taken the stand that the floor area of
each room is 60 square meters. In the above circumstances, it
is necessary that the actual area of the petition schedule shop
rooms is measured out and the report is filed before the court.
3. The landlord filed an objection dated 06.02.2021
(Ext.P5) in I.A.No.2 of 2021, opposing the reliefs sought for in
that application. The landlord contended that the question
regarding the area of petition schedule shop rooms was an
issue directly and substantially raised in R.C.P.No.153 of 2010,
which was decided against the tenant by the Rent Control
Court. The tenant filed appeal, i.e., R.C.A.No.6 of 2013, which
also ended in dismissal by the order of the Rent Control
Appellate Authority, upholding the order of the Rent Control
Court. Therefore, the tenant cannot raise that issue in the
present proceedings. The tenant filed I.A.No.2 of 2021, on
27.01.2021, when R.C.P.No.197 of 2018 was listed for
evidence, with the sole intention to prolong the litigation to the
O.P.(RC)No.67 of 2021
disadvantage of the landlord. The plea raised by the tenant to
ascertain the area of the tenanted premises cannot stand legal
scrutiny, as the same is hit by res judicata.
4. The Rent Control Court, by the impugned order
dated 15.03.2021 (Ext.P6) rejected I.A.No.2 of 2021, on the
ground that the question that falls for adjudication in
R.C.P.No.197 of 2018 is as to whether the tenant had kept the
rent in arrears. The question as to the area of the tenanted
premises is not at all necessary for a proper consideration of
that issue and the present interlocutory application is filed only
to prolong the proceedings. In Ext.P6 order, the Rent Control
Court noticed that in the earlier proceedings between the
parties for fixation of fair rent, i.e., R.C.P.No.153 of 2010, fair
rent has already been fixed after considering the area of
petition schedule shop rooms. The appeal filed by the tenant
against that order ended in dismissal by the Rent Control
Appellate Authority. The fair rent was fixed taking note of the
area of the petition schedule building and therefore, the said
question does not arise for consideration in the present
proceedings, i.e., R.C.P.No.197 of 2018.
O.P.(RC)No.67 of 2021
5. Feeling aggrieved by Ext.P6 order dated 15.03.2021
of the Rent Control Court in I.A.No.2 of 2021 in R.C.P.No.197
of 2018, the petitioner-tenant is before this Court in this
original petition, invoking the supervisory jurisdiction under
Article 227 of the Constitution of India.
6. On 09.07.2021, when this original petition came up
for admission, this Court issued notice on admission by special
messenger to the respondent, returnable by 15.07.2021.
7. Heard the learned counsel for the petitioner-tenant
and also the learned counsel for the respondent-landlord.
8. The issue that arises for consideration in this original
petition is as to whether any interference is warranted on
Ext.P6 order of the Rent Control Court, whereby the said court
rejected I.A.No.2 of 2021 in R.C.P.No.197 of 2018 filed by the
petitioner-tenant to appoint an Advocate Commission for local
inspection of the petition schedule shop rooms and to file a
report, with the assistance of an expert engineer, on the lie and
nature of the said shop rooms and its floor area.
9. R.C.P.No.197 of 2018 is one filed by the landlord,
seeking eviction under Section 11(2)(b) of the Act, on an
O.P.(RC)No.67 of 2021
allegation that the tenant had defaulted payment of monthly
rent in respect of petition schedule shop rooms, at the rate
fixed by the Rent Control Court in an earlier proceedings under
Section 5 of the Act for fixation of fair rent, i.e., R.C.P.No.153
of 2010.
10. The order of the Rent Control Court in R.C.P.No.153
of 2010 is a common order dated 27.11.2012 in R.C.P.Nos.152
of 2010, 153 of 2010 and 154 of 2010. Insofar as the petition
schedule shop rooms in R.C.P.No.197 of 2018 are concerned,
the Rent Control Court in R.C.P.No.153 of 2010 fixed the fair
rent as Rs.18,060/-, at the rate of Rs.14/- per square feet for a
plinth area of 60 square meters each. The order of the Rent
Control Court in R.C.P.No.153 of 2010 was under challenge
before the Rent Control Appellate Authority (V - Additional
District Judge), Ernakulam, in R.C.A.No.6 of 2013. The
Appellate Authority by a common judgment dated 15.11.2017,
dismissed R.C.A.No.6 of 2013 and the connected appeals, i.e.,
R.C.A.Nos.4 of 2013 and 7 of 2013, thereby confirming the
order of the Rent Control Court in fixing the fair rent in respect
of the shop rooms in question.
O.P.(RC)No.67 of 2021
11. Challenging the judgment of the Appellate Authority
in R.C.A.No.6 of 2013, the petitioner-tenant filed R.C.R.No.150
of 2018 before this Court, on 02.04.2018. On 23.05.2018,
when that revision came up for admission, there was no
representation for the petitioner and it was ordered to be
posted 'when moved again'. On 08.07.2021, while arguments
were heard in this original petition, the petitioner-tenant filed
I.A.No.1 of 2021 in R.C.R.No.150 of 2018, seeking an order to
amend the memorandum of revision, in order to raise a
contention that the total area of the petition schedule shop
rooms is only 82.95 square meters, as 60 square meters each,
i.e., a total area of 120 square meters (60 each) as found in
the order of the Rent Control Court in R.C.P.No.153 of 2010,
while fixing the fair rent under Section 5 of the Act. When that
revision petition came up for consideration on 20.07.2021, the
matter was ordered to be listed along with this original petition.
12. The judgment of the Appellate Authority in
R.C.A.Nos.4 of 2013 and 7 of 2013 arising out of R.C.P.Nos.152
of 2010 and 154 of 2010 are under challenge in R.C.R.Nos.35
of 2018 and 119 of 2018 pending before this Court. In
O.P.(RC)No.67 of 2021
R.C.R.No.35 of 2018, this Court has granted an interim order in
I.A.No.198 of 2018, on 06.02.2018, staying the operation of
the impugned order/judgment in R.C.P.No.154 of 2010 and
R.C.A.No.4 of 2013, on condition that the tenant shall pay the
rent at the rate of Rs.7,300/- per month from February, 2018
onwards, subject to the final decision in that revision petition.
In R.C.R.No.119 of 2018, there is no such interim order. For
reasons best known to the petitioner-tenant, he has not chosen
to bring up R.C.R.No.150 of 2018, a revision filed before this
Court on 02.04.2018, challenging the judgment of the Appellate
Authority in R.C.A.No.6 of 2013 confirming the order of the
Rent Control Court fixing fair rent in respect of the petition
schedule shop rooms in the present Rent Control Petition filed
under Section 11(2)(b) of the Act, i.e., R.C.P.No.197 of 2018.
As if there is an order of stay in R.C.R.No.150 of 2018, the
petitioner-tenant had chosen to default payment of fair rent,
which had resulted in another round of litigation by the
landlord, who is a senior citizen aged 84 years, seeking eviction
of the tenant from the petition schedule shop rooms on the
ground of arrears of rent. In that Rent Control Petition, the
O.P.(RC)No.67 of 2021
tenant has chosen to file I.A.No.2 of 2021, seeking an order for
appointing an Advocate Commission for local inspection of the
petition schedule shop rooms and file a report, on the lie and
nature of the said shop rooms and its floor area.
13. Relying on the judgment of the Apex Court in
Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787]
the learned counsel for the petitioner-tenant would contend
that, in R.C.P.No.197 of 2018, which is one filed by the landlord
seeking eviction under Section 11(2)(b) of the Act, on the
ground of arrears of rent, the tenant can raise a dispute as to
the rate of rent payable, despite the fixation of fair rent by the
Rent Control Court in R.C.P.No.153 of 2010, a previous
proceedings under Section 5 of the Act. The default on the part
of the tenant in paying fair rent, after the said order of the Rent
Control Court, gives raise to a fresh cause of action or even a
continuing cause of action to the landlord, for initiating
proceedings seeking an order of eviction under Section 11(2)
(b) of the Act, and as such the principles of res judicata or
estoppel has no application.
14. In Bhanu Kumar Jain the Apex Court followed the
O.P.(RC)No.67 of 2021
law laid down in Hope Plantations Ltd. v. Taluk Land
Board, Peermade and another [(1999) 5) SCC 590] that
one important consideration of public policy is that the
decisions pronounced by courts of competent jurisdiction should
be final, unless they are modified or reversed by Appellate
Authorities; and the other principle is that no one should be
made to face the same kind of litigation twice over, because
such a process would be contrary to considerations of fair play
and justice. Law on res judicata and estoppel is well understood
in India and there are ample authoritative pronouncements by
various courts on these subjects. The plea of res judicata,
though technical, is based on public policy in order to put an
end to litigation. It is, however, different, if an issue which had
been decided in an earlier litigation again arises for
determination between the same parties in a suit based on a
fresh cause of action or where there is continuous cause of
action. The parties then may not be bound by the
determination made earlier if in the meanwhile, law has
changed or has been interpreted differently by a higher forum.
15. In Williams Daniel v. Jose [2019 (5) KHC 205]
O.P.(RC)No.67 of 2021
the question that came up for consideration before the Division
Bench of this Court is as to whether the expression "arrears of
rent admitted" in Section 12 of the Kerala Buildings (Lease and
Rent Control) Act could be interpreted to include the 'fair rent'
fixed in a rent control proceeding under Section 5(1) of the Act
also, apart from the contractual rent agreed to between the
parties. The Division Bench held that, Section 12 of the Act
enjoins a tenant to pay or deposit arrears of rent admitted by
him in the proceeding, in order to entitle him to contest a
petition for eviction or prosecute an appeal, whether the ground
of eviction be under Section 11(2)(b) of the Act or any other
grounds statutorily recognised under Section 11. Section 12
makes it very clear that liability of a tenant to pay or deposit
rent is only to the extent he admits the rate of rent or period of
default. The object of the Section appears to deny the
defaulting tenant's right to resist eviction proceeding without
his making payment or deposit of arrears of rent to the extent
he has acknowledged his liability. When the tenant denies the
rate of rent or else disowns liability to pay or deposit arrears,
the court has no power under Section 12 of the Act to conduct
O.P.(RC)No.67 of 2021
an enquiry and decide whether the denial is true or not.
16. In Williams Daniel the Division Bench held further
that, once fair rent is fixed by the court, the rent agreed or
stipulated by the parties to lease transaction comes to a total
cessation and becomes unenforcible under law. The contractual
rent is fully replaced by fair rent adjudged by the court in
exercise of power vested in it under Section 5(1) of the Act.
When the court adjudicates and quantifies the fair rent, the
contract between the parties agreeing to any rate of rent or
terms of payment vanishes for ever. The right or liability of
parties to receive or pay the rent is thereafter governed by the
terms of the order of court adjudicating the fair rent. Parties
can no longer fall back upon the contractual rent and build his
or her claim thereon, since the contract rent is non-existent
under law. A tenant, in order to qualify to contest an eviction
petition or prosecute an appeal, is bound to pay or deposit the
arrears of fair rent already fixed by the court, as if the fair rent
also means rent admitted by the tenant and payable by him
under Section 12 of the Act. The expression 'arrears of rent
admitted' in Section 12 of the Act, when read in the light of the
O.P.(RC)No.67 of 2021
scheme of the Act and provisions for fixing fair rent, could only
be construed as rent incapable of being disputed or denied by
the tenant. When a party is legally dis-entitled or disabled
under law from denying or disputing a fact which was decided
by the court after adjudicatory process, it is as good as a fact
admitted by him, since under no circumstance he can wriggle
out of the binding decision, unless it could be shown to be
inconclusive. A tenant bound by an order fixing fair rent under
Section 5(1) of the Act, cannot contend that he is not liable
under Section 12 to deposit fair rent greater than contract rent
agreed to between parties, adjudged by the court nor can a
landlord similarly contend that he is entitled to contract rent
larger than the fair rent adjudged by the court. The fair rent
adjudged by the Court is at par with the expression 'admitted
rent' used in Section 12 inasmuch as parties are estopped or
precluded from disowning or renouncing their liability to pay or
receive fair rent as long as it has attained finality under law.
17. Once fair rent of the petition schedule shop rooms in
R.C.P.No.197 of 2018 is fixed by the Rent Control Court by its
order in R.C.P.No.153 of 2010, in a proceedings under Section
O.P.(RC)No.67 of 2021
5(1) of the Act, the tenant cannot contend in a subsequent
proceedings initiated under Section 11(2)(b) of the Act that he
is not liable to pay the fair rent fixed under Section 5(1) of the
Act and that, the dispute raised by the tenant as to the rate of
rent with reference to the floor area of the tenanted premises
or any other aspects requires consideration in the subsequent
proceedings initiated under Section 11(2)(b) of the Act before
ordering eviction on the ground of arrears of rent. As long as
the order of the Rent Control Court fixing fair rent is not stayed
or modified by the Appellate or Revisional Court, the tenant is
bound to pay rent, at the rate fixed in the proceedings under
Section 5(1) of the Act. Further, the legality or otherwise of
fixation of fair rent in a proceedings under Section 5(1) of the
Act cannot be a subject matter in a subsequent proceedings for
eviction under Section 11(2)(b) of the Act. Therefore, the Rent
Control Court cannot be found fault with in rejecting I.A.No.2 of
2021 in R.C.P.No.197 of 2018 filed by the petitioner-tenant for
appointing an Advocate Commission for local inspection of the
petition schedule shop rooms and file a report, on the lie and
nature of the said shop rooms and its floor area.
O.P.(RC)No.67 of 2021
18. 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
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.
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.
O.P.(RC)No.67 of 2021
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 the decision of
the lower court or tribunal is in direct conflict with settled
principles of law.
20. In the above circumstances, we find no reason to
interfere with Ext.P6 order of the Rent Control Court dated
15.03.2021 in R.C.P.No.197 of 2018, which is impugned in this
original petition.
21. In the result, the original petition fails and the same
is accordingly dismissed.
No order as to costs.
Sd/-
ANIL K. NARENDRAN
JUDGE
Sd/-
K. BABU
JUDGE
yd
O.P.(RC)No.67 of 2021
APPENDIX
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE RENT CONTROL PETITION
NO.197/2018 OF THE RENT CONTROL COURT,
ERNAKULAM DATED 01.11.2018.
Exhibit P2 TRUE COPY OF THE OBJECTIONS FILED BY
THE PETITIONER/ TENANT IN THE RCP
NO.197/2018 DATED 23.03.2019.
Exhibit P3 TRUE COPY OF COMMISSION APPLICATION AS
PER I.A.NO.2/2021 IN RCP NO.197/2018 OF
THE RENT CONTROL COURT, ERNAKULAM DATED
27.01.2021.
Exhibit P4 TRUE COPY OF THE PANEL OF EXPERT
ENGINEER IN I.A.NO.2/2021 IN RCP
NO.197/2018 OF THE RENT CONTROL COURT,
ERNAKULAM DATED 30.01.2021.
Exhibit P5 TRUE COPY OF AFFIDAVIT IN OPPOSITION
FILED BY THE RESPONDENT IN
I.A.NO.2/2021 IN RCP NO.197/2018 OF THE
RENT CONTROL COURT, ERNAKULAM DATED
06.02.2021.
Exhibit P6 TRUE COPY OF THE ORDER IN I.A.NO.2/2021
IN RCP NO.197/2018 OF THE RENT CONTROL
COURT, ERNAKULAM DATED 15.03.2021.
Exhibit P7 TRUE COPY OF THE CERTIFICATE ISSUED BY
HARILAL V. S. CHARTERED ENGINEER DATED
23.03.2021.
Exhibit P8 TRUE COPY OF THE WITNESS LIST SUBMITTED
BEFORE THE RENT CONTROL COURT,
ERNAKULAM IN RCP NO.197/2018 OF DATED
23.03.2021.
Exhibit P9 TRUE COPY OF THE PETITION I.A.NO.3/2021
IN RCP NO.197/2018 TO RECEIVE WITNESS
LIST DATED 23.03.2021 FILED BY THE
PETITIONER.
Exhibit P10 TRUE COPY OF THE PROOF AFFIDAVIT BY THE
PETITIONER'S WITNESS ER.V.S.HARILAL
DATED 23.03.2021 IN RCP NO.197/2018.
Exhibit P11 TRUE COPY OF THE OBJECTION TO THE
EXT.P9 I.A. FILED BY THE RESPONDENT
DATED 24.03.2021.
O.P.(RC)No.67 of 2021
Exhibit P12 TRUE COPY OF PROOF AFFIDAVIT OF THE
POWER OF ATTORNEY HOLDER OF THE
PETITIONER IN RCP NO.197/2018 DATED
18.01.2021 AND THE HANDWRITTEN COPY OF
THE CROSS EXAMINATION.
Exhibit P13 TRUE COPY OF COMMON ORDER IN
R.C.P.NOS.152, 153 & 154/2010 OF THE
RENT CONTROL COURT, ERNAKULAM DATED
27.11.2012.
Exhibit P14 TRUE COPY OF COMMON JUDGMENT IN
R.C.A.NO.6/2013 OF THE RENT CONTROL
APPELLATE AUTHORITY /ADD. DISTRICT
COURT -V, ERNAKULAM DATED 15.11.2017.
Exhibit P15 TRUE COPY OF THE REVISION PETITION RCR
NO.150/2018 FILED BY THE PETITIONER
BEFORE THIS HON'BLE COURT DATED
26.03.2018 WITHOUT LOWER COURT ORDERS
AND PETITIONS.
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
