Abdulla Kunhi vs Poomadath Shaibana
2021 Latest Caselaw 21850 Ker

            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 3RD DAY OF NOVEMBER 2021/12TH KARTHIKA, 1943
                     O.P.(RC)NO.190 OF 2019
AGAINST THE ORDER DATED 19.10.2019 IN I.A.NO.2085 OF 2019
        IN R.C.P.NO.36 OF 2018 OF THE RENT CONTROL COURT
                  (MUNSIFF), HOSDRUG, KASARGOD
PETITIONERS:

    1       ABDULLA KUNHI
            AGED 38 YEARS
            S/O MOHAMMED, RESIDING AT KOPPADY HOUSE,
            KOTTACHERY, BALLA VILLAGE, HOSDURG TALUK.

    2       SAINABA
            AGED 36 YEARS
            D/O MOHAMMED, RESIDING AT KOPPADY HOUSE,
            KOTTACHERY, BALLA VILLAGE, HOSDURG TALUK.

           BY ADVS.
           SRI.P.R.VENKATESH
           SRI.G.KEERTHIVAS



RESPONDENTS:

    1       POOMADATH SHAIBANA, AGED 46 YEARS,
            D/O.LATE ABDUL RAZAK, RESIDING AT 'SOTHARA',
            NEAR KANHANGAD RAILWAY STATION, P.O. KANHAGAD IN
            HOSDURG VILLAGE OF HOSDURG TALUK, REPRESENTED BY
            HER POWER OF ATTORNEY HOLDER POOMADATH ASSYUMMA,
            AGED 62 YEARS PIN 671 315
                              -2-

O.P.(RC)NO.190 OF 2019

     2     POOMADATH JUANA
           AGED 42 YEARS
           D/O. LATE ABDUL RAZAK, RESIDING AT 'SOTHARA',
           NEAR KANHANGAD RAILWAY STATION, P.O. KANHAGAD
           IN HOSDURG VILLAGE OF HOSDURG TALUK,
           REPRESENTED BY HER POWER OF ATTORNEY HOLDER
           POOMADATH ASSYUMMA, AGED 62 YEARS PIN 671 315

     3     ABDUL RAZAK
           AGED 57 YEARS
           S/O SULAIMAN, RESIDING AT MUMTAZ MAHAL,
           PARAVANADUKKAM, CHEMMANAD VILLAGE, KASARAGOD
           TALUK, PIN 671 315

     4     MUMTAZ RAZAK
           AGED 40 YEARS
           W/O ABDUL RAZAK RESIDING AT MUMTAZ MAHAL,
           PARAVANADUKKAM, CHEMMANAD VILLAGE, KASARAGOD
           TALUK PIN-671 315

     5     NAZEER ALI
           AGED 42 YEARS
           S/O KUNHAMMED, RESIDING AT THOTI HOUSE,
           PALLIKKERE VILLAGE, HOSDURG TALUK PIN- 671 315

     6     UMAIBA
           AGED 37 YEARS
           S/O MUHAMMED SHEREEF, RESIDING AT 'FIELD VIEW',
           MANGAD, HOSDURG TALUK PIN 671 315

     7     SHAMSU
           AGED 45 YEARS
           BUSINESS 'CHAMAYAM' IN PVK BAZAR, OPPOSITE
           MUNICIPAL BUS STAND, P.O. KANHANGAD IN BALLA
           VILLAGE OF HOSDURG TALUK PIN 671 315

     8     RIYAZ,
           AGED 36 YEARS
           BUSINESS 'CHAMAYAM' IN P.V.K. BAZAR, OPPOSITE
           MUNICIPAL BUS STAND, P.O KANHANGAD IN BALLA
           VILLAGE OF HOSDURG TALUK PIN 671 315
                               -3-

O.P.(RC)NO.190 OF 2019

     9      BIJU
            AGED 36 YEARS
            BUSINESS 'CHAMAYAM' IN P.V.K. BAZAR, OPPOSITE
            MUNICIPAL BUS STAND, P.O KANHANGAD IN BALLA
            VILLAGE OF HOSDURG TALUK PIN 671 315

    10      KOPPATTY MUHAMMED
            'CHAMAYAM' IN P.V.K. BAZAR, OPPOSITE MUNICIPAL
            BUS STAND, P.O KANHANGAD IN BALLA VILLAGE OF
            HOSDURG TALUK PIN 671 315

            R1 & R2 BY ADVS.SRI.T.SETHUMADHAVAN (SR.)
            SMT.LIGEY ANTONY
            SMT.DEEPA NARAYANAN
            SMT.PREETHI. P.V.


         THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION
ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                               -4-

O.P.(RC)NO.190 OF 2019


                          JUDGMENT

Anil K. Narendran, J.

The petitioners are respondents 3 and 4-tenants in

R.C.P.No.36 of 2018 on the file of the Rent Control Court

(Munsiff), Hosdurg, a petition filed by respondents 1 and 2

herein-landlords seeking eviction of the tenants from the

petition schedule shop rooms, under Sections 11(3), 11(4)(i)

and 11(4)(v) of the Kerala Buildings (Lease and Rent Control)

Act, 1965. The tenants entered appearance and filed counter

statement. The tenants are before this Court in this original

petition filed under Article 227 of the Constitution of India,

seeking an order to set aside Ext.P11 order dated 19.10.2019

of the Rent Control Court in I.A.No.2085 of 2019 in

R.C.P.No.36 of 2018, whereby the application filed by the

landlords, under Order VI, Rule 17 of the Code of Civil

Procedure, 1908 read with Section 23(1)(j) of the Kerala

Buildings (Lease and Rent Control) Act, seeking amendment

of the pleadings in the Rent Control Petition stands allowed,

for the reasons stated therein.

2. On 07.11.2019, when this original petition came up

O.P.(RC)NO.190 OF 2019

for admission, this Court admitted the matter on file and

issued notice by speed post to the respondents. This Court

granted an interim order staying all further proceedings in

R.C.P.No.36 of 2018 on the file of the Rent Control Court,

Hosdurg, for a period of three weeks. The said interim order,

which was extended from time to time, is still in force.

3. Heard the learned counsel for the petitioners-

tenants and also the learned counsel for respondents 1 and 2-

landlords. Despite service of notice, none appears for

respondents 3 to 10, other tenants of the petition schedule

shop rooms.

4. The learned counsel for the petitioners-tenants

would contend that the amendment of the pleadings in the

Rent Control Petition, as sought for in I.A.No.2085 of 2019,

during the pendency of the application made by the landlords

under Section 12 of the Act for payment of admitted arrears,

will cause prejudice to the tenants. In such circumstances, the

Rent Control Court ought to have dismissed that interlocutory

application.

5. Per contra, the learned counsel for respondents 1

and 2-landlords would contend that the order of the Rent

O.P.(RC)NO.190 OF 2019

Control Court allowing I.A.No.2085 of 2019 filed by the

landlords for amendment of the pleadings in the Rent Control

Petition, as sought for in that interlocutory application, is

perfectly legal, which warrants no interference in exercise of

the supervisory jurisdiction of this Court under Article 227 of

the Constitution of India.

6. The issue that arises for consideration in this

original petition is as to whether any interference is warranted

on Ext.P11 order dated 19.10.2019 of the Rent Control Court

in I.A.No.2085 of 2019 in R.C.P.No.36 of 2018, invoking the

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

7. I.A.No.2085 of 2019 is one filed by the landlords

under Order VI, Rule 17 of the Code of Civil Procedure read

with Section 23(1)(j) of the Kerala Buildings (Lease and Rent

Control) Act, seeking amendment of the pleadings in the Rent

Control Petition. Such an amendment was sought for to

incorporate the pleadings with respect to illegal occupation of

additional space by the tenants and consequential

enhancement of the rent for that space, which was omitted to

be pleaded originally in the Rent Control Petition.

O.P.(RC)NO.190 OF 2019

8. The tenants filed counter statement, contending

that, the application for amendment is an attempt made by

the landlords to setup a new case and demand excessive rent

from them. Any amendment of the pleadings in the Rent

Control Petition, during the pendency of the application made

by the landlords under Section 12 of the Act for payment of

admitted arrears, will cause prejudice to them.

9. Order VI, Rule 17 of the Code of Civil Procedure

deals with the amendment of pleadings. Order VI, Rule 17 of

the Code, as substituted by the Code of Civil Procedure

(Amendment) Act, 2002, provides that the court may at any

stage of the proceedings allow either party to alter or amend

his pleadings in such manner and on such terms as may be

just, and all such amendments shall be made as may be

necessary for the purpose of determining the real questions in

controversy between the parties. However, going by the

proviso to the said Rule, no application for amendment shall

be allowed after the trial has commenced, unless the court

comes to the conclusion that in spite of due diligence, the

party could not have raised the matter before the

commencement of trial.

O.P.(RC)NO.190 OF 2019

10. The proviso to Order VI, Rule 17 of the Code of

Civil Procedure, 1908 introduced by the Code of Civil

Procedure (Amendment) Act, 2002 is intended to ensure

speedy trial of cases by curtailing protraction of cases at the

trial stage. In a case where the trial has commenced, the

court can allow an application made for amendment of

pleadings, if it comes to the conclusion that in spite of due

diligence, the applicant could not file such an application

before commencement of trial and that, the amendment

sought for is necessary for the purpose of determining the real

controversy between the parties.

11. In Rajkumar Gurawara (Dead) through Lrs. v.

S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364] the

Apex Court held that Order VI, Rule 17 of the Code of Civil

Procedure confers jurisdiction on the court to allow either

party to alter or amend his pleadings at any stage of the

proceedings on such terms as may be just. Such amendments

seeking determination of the real question of the controversy

between the parties shall be permitted to be made. Pre-trial

amendments are to be allowed liberally than those which are

sought to be made after the commencement of the trial. In

O.P.(RC)NO.190 OF 2019

the former case, the opposite party is not prejudiced because

he will have an opportunity of meeting the amendment sought

to be made. In the latter case, namely, after the

commencement of trial, particularly, after completion of the

evidence, the question of prejudice to the opposite party may

arise and in such event, it is incumbent on the part of the

court to satisfy the conditions prescribed in the proviso.

12. In the instant case, after considering the rival

contentions, the Rent Control Court rightly concluded that, the

contention of the tenants that allowing the application for

amendment, during the pendency of the application made by

the landlords under Section 12 of the Act for payment of

admitted arrears, will cause prejudice to them cannot be

sustained, since under Section 12 of the Act the tenants need

to pay only the admitted rent. The Rent Control Court found

that the proposed amendment will not change the nature and

character of the Rent Control Petition. Further, no prejudice

will be caused to the tenants by the amendment proposed, as

they will get an opportunity to contest the Rent Control

Petition on the basis of amended pleadings. Therefore, the

Rent Control Court allowed I.A.No.2085 of 2019 and the

O.P.(RC)NO.190 OF 2019

landlords are permitted to amend the Rent Control Petition, as

sought for in that application.

13. Article 227 of the Constitution of India deals with

power of superintendence over all courts by the High Court.

Under Article 227(1) 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.

14. 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

O.P.(RC)NO.190 OF 2019

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.

15. 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 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

O.P.(RC)NO.190 OF 2019

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.

16. 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 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.

17. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016

(1) KHC 1] a Division Bench of this Court held that, the law

O.P.(RC)NO.190 OF 2019

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

the decision of the lower court or tribunal is in direct conflict

with settled principles of law.

18. In the instant case, it cannot be said that, while

allowing the application for amendment, i.e., I.A.No.2085 of

2019 filed by the landlords, seeking amendment of the

pleadings in R.C.P.No.36 of 2018, as sought for in that

application, the Rent Control Court committed any manifest

error or that the reasoning of the Rent Control Court in

Ext.P11 order is palpably perverse or patently unreasonable,

warranting interference in exercise of the supervisory

jurisdiction of this Court under Article 227 of the Constitution

of India.

O.P.(RC)NO.190 OF 2019

19. In such circumstances, we find no reason to

interfere with Ext.P11 order of the Rent Control Court. In the

result, this original petition fails and the same is accordingly

dismissed. No order as to costs.

20. The learned counsel for respondents 1 and 2-

landlords would submit that the Rent Control Petition is of the

year 2018 and therefore, the Rent Control Court, Hosdurg

may be directed to dispose of R.C.P.No.36 of 2018, within a

time limit.

21. The Rent Control Court shall give a reasonable time

to the tenants to file additional counter statement to the

amended Rent Control Petition. The Rent Control Court shall

finally dispose of R.C.P.No.36 of 2018, as expeditiously as

possible, at any rate, within a period of five months from the

date of production of a certified copy of this judgment.

We make it clear that, observations, if any, contained in

this judgment touching the merits of the case pending before

the Rent Control Court, Hosdurg, are made only for the limited

purpose to decide the question as to whether any interference

is warranted on Ext.P11 order, in exercise of the supervisory

jurisdiction of this Court under Article 227 of the Constitution

O.P.(RC)NO.190 OF 2019

of India, and the Rent Control Court shall proceed with

R.C.P.No.36 of 2018, untrammelled by any such observations.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE

AV

O.P.(RC)NO.190 OF 2019

APPENDIX OF OP (RC) 190/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE RCP NO. 36/2018 ON THE FILES OF THE RENT CONTROL COURT (MUNSSIFF) OF HOSDURG.

EXHIBIT P2 TRUE COPY OF LAWYER NOTICE DATED 21.08.2018 ISSUED ON BEHALF OF RESPONDENTS 1 AND 2.

EXHIBIT P3 TRUE COPY OF REPLY NOTICE DATED 26.10.2018 ISSUED TO V.SATHEESHKUMAR, ADVOCATE.

EXHIBIT P4 TRUE COPY OF COUNTER STATEMENT FILED BY RESPONDENTS 3,9 AND 10 IN RCP NO.

36/2018.

EXHIBIT P5 TRUE COPY OF AGREEMENT DATED 7.2.2002 EXECUTED BY THE PETITIONERS AS WELL AS RESPONDENTS 3,4,5 AND 6 IN FAVOUR OF RESPONDENTS 1 AND 2.

EXHIBIT P6 TRUE COPY OF THE AGREEMENT BETWEEN TENANTS AND THE PREVIOUS TENANTS.

EXHIBIT P7 TRUE COPY OF THE I.A 1679/2019 FILED IN RCP.36/2018 FILED BY THE 2ND PETITIONER IN RCP.

EXHIBIT P8 TRUE COPY OF COUNTER STATEMENT FILED IN I.A NO .1679/2019 IN RCP .36/2018 BY RESPONDENTS 3,9 AND 10.

EXHIBIT P9 TRUE COPY OF THE AMENDMENT APPLICATION IA NO. 2085 /2019 IN RCP 36/2018.

EXHIBIT P10 TRUE COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENTS 3,9, AND 10 FILED IN IA 2085/19 IN RCP 36/2018.

O.P.(RC)NO.190 OF 2019

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 19.10.2019 OF THE LEARNED MUNSIFF IN IA 2085/19 IN RCP 36/2018.

EXHIBIT P12 TRUE COPY OF INTERROGATORY AS IA NO.1845/2019 SERVED BY PETITIONERS ALONG WITH RESPONDENTS 9 AND 10.

EXHIBIT P13 TRUE COPY OF COUNTER AFFIDAVIT ALONG WITH ANSWER DATED 23.9.2019 IN IA NO. 1845 /2019 IN RCP NO.36/2018

EXHIBIT P14 TRUE COPY OF THE ANSWER AFFIDAVIT DATED 4.10.2019 IN RCP 36/2018