Kerala High Court
Lawrence vs The Managing Partner M/S ... on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
OP (RC) NO. 10 OF 2017
AGAINST THE ORDERS IN R.C.A. 154/2011 OF IV ADDITIONAL RENT
CONTROL APPELLATE AUTHORITY, THRISSUR
PETITIONERS:
*1 LAWRENCE *[DIED]
AGED 57 YEARS, S/O.EDAKALATHUR OUSEPH,
EDAKALTHUR VILLAGE DESOM,THRISSUR TALUK.
*ADDITIONAL PETITIONERS (LEGAL HEIRS) IMPLEADED.
**ADDL.P2 THANKAMMA LAWRENCE, AGED 54 YEARS,
W/O. LATE LAWRENCE, EDAKKALATHUR HOUSE,
MUNDOOR P.O., THRISSUR.
**ADDL.P3 LEMIN LAWRENCE, AGED 29 YEARS,
S/O.LATE LAWRENCE, EDAKKALATHUR HOUSE,
MUNDOOR P.O., THRISSUR.
**ADDL.P4 LENIL LAWRENCE, AGED 26 YEARS,
S/O. LATE LAWRENCE, EDAKKALATHUR HOUSE,
MUNDOOR P.O., THRISSUR.
**ADDL.P5 LERIN LAWRENCE, AGED 24 YEARS,
D/O.LATE LAWRENCE, EDAKKALATHUR HOUSE, MUNDOOR
P.O., THRISSUR.
**ADDITIONAL PETITIONERS 2 TO 5 ARE IMPLEADED VIDE
ORDER DATED 23/11/2018 IN IA.NO.01/2018.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS:
1 MANAGING PARTNER, M/S.EDAKULATHUR TRADING COMPANY,
GENERAL MERCHANTS AND COMMISSION AGENTS,
NEHRU BAZAR, THRISSUR-680 001.
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2 JESSY PAVU, AGED 45 YEARS, W/O.LATE PAVU,
ANCHERY HOUSE, MISSION QUARTERS,
CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001.
3 SWETHA PAVU, AGED 23 YEARS, D/O.LATE PAVU,
ANCHERY HOUSE, MISSION QUARTERS,
CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001.
4 RIYA PAVU, (MINOR) AGED 17 YEARS, D/O.LATE
PAVU, ANCHERY HOUSE, MISSION QUARTERS,
CHEMBUKAVU VILLAGE, THRISSUR DISTRICT-680 001,
REPRESENTED BY HER MOTHER AND NEXT FRIEND
JESSY PAVU, W/O.LATE PAVU, ANCHERY HOUSE,
MISSION QUARTERS, CHEMBUKAVU VILLAGE,
THRISSUR DISTRICT-680 001.
BY ADVS.
SRI.G.KEERTHIVAS
SRI.K.ARJUN VENUGOPAL
SMT.V.A.HARITHA
SRI.JEEVAN RAJEEV
SMT.MARY RESHMA GEORGE
SMT.P.M.MAZNA MANSOOR
SRI.C.R.SYAMKUMAR
SRI.SOORAJ T.ELENJICKAL
SMT.SANDHYA R.NAIR
SRI.P.R.VENKATESH
THIS OP (RENT CONTROL) HAVING COME UP FOR
ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The petitioner is the 1st respondent-tenant in R.C.P.
No.100 of 2007 on the file of Rent Control Court (Munsiff),
Thrissur filed by the husband of the 2 nd respondent herein-
landlord, a petition under Sections 11(2)(b), 11(3), 11(4)(i)
and 11(8) of the Kerala Buildings (Lease and Rent Control)
Act, 1965, seeking eviction of the tenant from the petition
schedule building.
2. On receipt of notice, the tenant entered
appearance and filed counter in R.C.P. No.100 of 2007.
Exts.A1 to A7 were marked and the landlord was examined
as PW1. On the side of the tenant, Exts.B1 to B8 were
marked and RWs 1 and 2 were examined. The Advocate
Commissioner, who submitted Ext.C1 report was examined
as CW1. Exts.X1 and X1(a) series were marked as witness
exhibits. After considering the pleadings and evidence on
record, the Rent Control Court granted an order of eviction
under Sections 11(2)(b) and 11(8) of the Act, after holding
O.P(R.C) No.10 of 2017
that the need projected under Section 11(3) is bona fide,
and the tenant was directed to put the landlord in vacant
possession of the petition schedule building. The order of
eviction sought for under Section 11(4)(i) of the Act was
rejected.
3. Challenging the order of eviction granted by the
Rent Control Court, the tenant filed R.C.A.No.154 of 2011
before the Rent Control Appellate Authority (District Judge),
Thrissur invoking the provisions under Section 18(1)(b) of
the Act. During the pendency of the above appeal, the
landlord died on 03.07.2013. The learned counsel for the
landlord filed a statement before the Appellate Authority on
07.08.2013, reporting the death of the landlord. Thereafter
the tenant filed I.A.No.4253 of 2013 on 1.10.2013, an
application under Rule 10 of the Kerala Buildings (Lease and
Rent Control) Rules, 1979, seeking an order to implead the
legal representatives of the landlord. That application ended
in dismissal by Ext.P3 order dated 11.06.2014 in
I.A.No.4253 of 2013. Consequently by Ext.P4 order dated
11.06.2014, the Appellate Authority dismissed R.C.A.No.154
of 2011 as abated.
O.P(R.C) No.10 of 2017
4. After the dismissal of R.C.A.No.154 of 2011, the
tenant filed I.A.No.2440 of 2014, an application under Order
XLVII of Rule 1 of Code of Civil Procedure, 1908, seeking an
order to review Ext.P4 order in R.C.A.No.154 of 2011;
I.A.No.2441 of 2014 seeking review of Ext.P3 order in
I.A.No.4253 of 2013; I.A.No.2443 of 2014, an application to
condone the delay of 59 days in filing I.A.No.4253 of 2013 in
R.C.A.No.154 of 2011; I.A.No.4489 of 2014 an application to
set aside abatement; and I.A.No.4125 of 2014, an
application to condone the delay of 390 days in filing
I.A.No.4489 of 2014. Those applications were dismissed by
Ext.P5 order dated 05.07.2016 of the Appellate Authority.
Challenging the aforesaid order of the Appellate Authority,
the tenant has filed this original petition under Article 227 of
the Constitution of India, seeking an order to quash Exts.P3
to P5 orders.
5. On 17.01.2017, when this original petition came
up for admission, this Court issued notice on admission to
respondents by speed post, returnable within two weeks.
6. Heard the learned counsel for the petitioner and
also the learned counsel for the respondents.
O.P(R.C) No.10 of 2017
7. The issue that arises for consideration in this
original petition is as to whether any interference is
warranted on Exts.P3 to P5 orders of the Rent Control
Appellate Authority, invoking the supervisory jurisdiction of
this Court under Article 227 of the Constitution of India.
8. 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.
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9. 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.
10. 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
O.P(R.C) No.10 of 2017
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 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.
11. 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
O.P(R.C) No.10 of 2017
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. 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.
12. 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
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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.
13. 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
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natural justice have been flouted.
14. In the instant case, the landlord died on
03.07.2013 and the said fact was brought to the notice of
the tenant by filing a statement before the Appellate
Authority on 07.08.2013, a copy of which was served on the
learned counsel for the tenant on 12.08.2013. The tenant
filed I.A.No.4253 of 2013 before the Appellate Autority on
01.10.2013, which is an application filed under Rule 10 of
the Kerala Buildings (Lease and Rent Control) Rules, seeking
an order to implead the legal representatives of the
deceased landlord.
15. As per Rule 10, every application for impleading
the legal representative of deceased party to proceedings
under the Act shall be preferred within 30 days from the
date of death of the person concerned. As per the proviso to
Rule 10, where the application for impleadment is filed by
legal representatives, who are not in the party array, the
Appellate Authority in appropriate cases condone the delay
in filing application.
16. In the instant case, admittedly, I.A.No.4253 of
2013 is filed by the tenant beyond the time limit prescribed
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in Rule 10. That belated application was not supported by
an application for condonation of delay. Therefore, that
application was rejected by the Appellate Authority by Ext.P3
order dated 11.06.2014. Consequently, by Ext.P4 order
11.06.2014, the Appellate Authority dismissed R.C.A.
No.154 of 2011 as abated. The tenant has filed I.A.No.2440
of 2014 and connected interlocutory applications mainly
seeking review of Exts.P3 and P4 orders, invoking the
provisions under Order XLVII Rule 1 of the Code of Civil
Procedure.
17. In Parsion Devi v. Sumitri Devi [(1997) 8
SCC 715] the Apex Court, in the context of the power of
review under Order XLVII, Rule 1 of the Code of Civil
Procedure, 1908 held that, a judgment may be open to
review inter alia if there is a mistake or an error apparent on
the face of the record. An error which is not self evident and
has to be detected by a process of reasoning, can hardly be
said to be an error apparent on the face of the record
justifying the Court to exercise its power of review under
Order XLVII, Rule 1 of the Code. In exercise of the
jurisdiction under Order XLVII, Rule 1 of the Code, it is not
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permissible for an erroneous decision to be 'reheard and
corrected'. A review petition has a limited purpose and
cannot be allowed to be 'an appeal in disguise'.
18. Later, in Lily Thomas v. Union of India
[(2006) 3 SCC 224] the Apex Court reiterated that, the
power of review can be exercised for correction of a mistake
but not to substitute a view. The review cannot be treated
like an appeal in disguise. The mere possibility of two views
on the subject is not a ground for review.
19. In Anantha Reddy N. v. Anshu Kathuria
[(2013) 15 SCC 534] the Apex Court held that, the review
jurisdiction is extremely limited and unless there is mistake
apparent on the face of the record, the order/judgment does
not call for review. The mistake apparent on record means
that the mistake is self - evident, needs no search and
stares at its face. Surely, review jurisdiction is not an appeal
in disguise. The review does not permit rehearing of the
matter on merits.
20. In view of the law laid down by the Apex Court in
the decisions referred to supra, the review jurisdiction under
Order XLVII, Rule 1 of the Code is very limited and unless
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there is mistake or error apparent on the face of the record,
the judgment does not call for review. Further, whilst
exercising such power of review, the Court cannot be
oblivious of the provisions contained in Order XLVII, Rule 1
of the Code and that the limits within which the Courts can
exercise the power of review have been well settled in a
catena of decisions.
21. Viewed in the light of the law laid down in the
decisions referred to supra, conclusion is irresistible that the
reasoning of the Appellate Authority in Ext.P5 order, for not
invoking review jurisdiction under Order XLVII Rule 1 of the
Code of Civil Procedure, insofar as the Ext.P3 order dated
11.06.2014 in I.A.No.4253 of 2013 in R.C.A.No.154 of 2011
and Ext.P4 judgment dated 11.06.2014 in R.C.A.No.154 of
2011 are concerned, warrants no interference in exercise of
the supervisory jurisdiction of this Court under Article 227 of
the Constitution of India.
22. On account of the dismissal of I.A.No.2443 of
2014, filed seeking review of order dated 11.06.2014 in
I.A.No.4253 of 2013, the Appellate Authority rightly rejected
I.A.Nos.4489 of 2014 and 4125 of 2015, which were filed to
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set aside abatement on account of the death of the landlord
and also to condone the delay of 390 days in filing the
former application.
In such circumstances, we find no reason to interfere
with the aforesaid orders.
This original petition fails and the same is accordingly
dismissed.
Sd/-
ANIL K. NARENDRAN,
JUDGE
Sd/-
A. BADHARUDEEN,
JUDGE
ww
O.P(R.C) No.10 of 2017
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APPENDIX OF OP (RC) 10/2017
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE FINAL JUDGMENT IN
R.C.P.No.100 OF 07 DATED 6.4.2011 ON
THE FILE OF THE RENT CONTROL COURT,
THRISSUR.
EXHIBIT P2 A TRUE COPY OF THE APPEAL MEMORANDUM
IN R.C.A.No.154 OF 2011 ON THE FILE
OF THE RENT CONTROL APPELLATE
AUTHORITY, THRISSUR DATED 11.7.2011.
EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN
I.A No.4253 OF 2013 IN R.C.A. NO.154
OF 2011 DATED 11.6.2014 ON THE FILE
OF THE 4TH ADDL. RENT CONTROL
APPELLATE AUTHORITY, THRISSUR.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN R.C.A
NO.154 OF 2011 DATED 11.6.2014 ON THE
FILE OF THE 4TH ADDL. APPELLATE
AUTHORITY, THRISSUR.
EXHIBIT P5 A TRUE COPY OF THE COMMON ORDER
PASSED IN I.A.No.2440 OF 2014 AND
CONNECTED APPLICATION IN R.C.A No.154
OF 2011 ON THE FILE OF THE 4TH ADDL.
APPELLATE AUTHORITY, THRISSUR DATED
5.7.2016.
