Kerala High Court
K.V.Sasi Varma vs V.Parthasaradi on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
OP (RC) NO. 51 OF 2019
AGAINST THE ORDER IN I.A.NO.1636 OF 2018 IN RCA NO.99/2018
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT
JUDGE), KOZHIKODE
PETITIONERS:
1 K.V.SASI VARMA
AGED 61 YEARS
S/O. SUBHADRA KOVILAMMA, SREERAJ HOUSE, POST
MANKAVU, VALAYANAD AMSOM AND DESOM, KOZHIKODE
TALUK, PIN-673007.
2 K.V. RAJASREE VARMA
AGED 51 YEARS
D/O. SUBHADRA KOVILAMMA, PRANAVAM HOUSE, POST
MANKAVU, VALAYANAD AMSOM AND DESOM, KOZHIKODE
TALUK, PIN-673007.
BY ADVS.
V.T.MADHAVANUNNI
SRI.V.A.SATHEESH
M.VIVEK RABINDRANATH
RESPONDENT:
V.PARTHASARADI
AGED 59 YEARS
S/O. V.K. VISWANATHA PILLAI, AGED 59 YEARS, NO.8,
KEERTHI NAGAR COLONY, KASABA AMSOM AND DESOM,
PIN-73002, KOZHIKODE TALUK.
BY ADV SMT.PRABHA R.MENON
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(RC)No.51 OF 2019 2
JUDGMENT
Anil K. Narendran, J.
The petitioners are the landlords in R.C.P.No.217 of 2014, a
petition filed under Section 11(3) of the Kerala Buildings (Lease and
Rent Control) Act, 1965, seeking eviction of the respondent-tenant
from the petition schedule building. Challenging the order of
eviction granted by the Rent Control Court under Section 11(3) of
the Act, the tenant filed R.C.A.No.99 of 2018 before the Rent
Control Appellate Authority (District Judge), Kozhikode. In that
appeal, the landlords filed I.A.No.1636 of 2018, an application
under Section 12 of the Act, seeking an order directing the tenant
to pay admitted arrears of rent. In that interlocutory application,
the Appellate Authority passed Ext.P5 order dated 24.10.2018,
whereby the tenant was directed to pay a sum of Rs.140/- as
admitted arrears of rent from January, 2017 onwards and continue
to pay rent for the subsequent months, within two weeks after it
has become due. Feeling aggrieved by the order of the Rent Control
Appellate Authority, to the extent of not ordering payment of
admitted rent, at the rate Rs.10/- per sq.ft. for the extent of 636
sq.ft., the petitioners are before this Court in this original petition.
2. On 13.03.2019, when this original petition came up for
admission, this Court admitted that matter on file. This Court issued
notice to the respondents and called for LCR. This Court passed an
interim order staying execution proceedings in R.C.A.No.99 of 2018,
for a period of two weeks. The said interim order, which was
extended from time to time, is still in force.
3. On 24.08.2021, when this original petition came up for
consideration, Registry was directed to call for a report from the
Rent Control Appellate Authority, Kozhikode, as to the present
status of R.C.A.No.50 of 2018 and also the time limit required for its
final disposal.
4. Pursuant to the order of this Court dated 24.08.2021, a
report dated 06.09.2021 of the Rent Control Appellate Authority is
placed on record, wherein it is stated that R.C.A.No.50 of 2018 is
being adjourned awaiting records in R.C.A.No.99 of 2018. Both the
appeals can be disposed of within one month from the date of
receipt of the records from this Court.
5. Heard the learned counsel for the petitioners-landlords
and also the learned counsel for the respondent-tenant.
6. The issue that arises for consideration in this original
petition is as to whether any interference is warranted on the order
of the Rent Control Appellate Authority dated 24.10.2018 in
I.A.No.1636 in R.C.A.No.99 of 2018, whereby the Rent Control
Appellate Authority, while allowing the interlocutory application filed
under Section 12 of the Act directed the tenant to pay the monthly
rent, only at the rate of Rs.140/- per month, instead of the fair rent
fixed in the proceedings initiated under Section 5 of the Act in
respect of which R.C.A.No.50 of 2018 is pending before the Rent
Control Appellate Authority.
7. Section 12 of the Kerala Buildings (Lease and Rent
Control) Act deals with payment or deposit of rent during the
pendency of proceedings for eviction. As per sub-section (1) of
Section 12, no tenant against whom an application for eviction has
been made by a landlord under Section 11, shall be entitled to
contest the application before the Rent Control Court under that
Section, or to prefer an appeal under Section 18 against any order
made by the Rent Control Court on the application, unless he has
paid or pays to the landlord, or deposits with the Rent Control Court
or the Appellate Authority, as the case may be, all arrears of rent
admitted by the tenant to be due in respect of the building up to
the date of payment or deposit, and continues to pay or to deposit
any rent which may subsequently become due in respect of the
building, until the termination of the proceedings before the Rent
Control Court or the Appellate Authority, as the case may be. As per
sub-section (2) of Section 12, the deposit under sub-section (1)
shall be made within such time as the court may fix and in such
manner as may be prescribed and shall be accompanied by the fee
prescribed for the service of notice referred to in sub-section (4). As
per the proviso to sub-section (2), the time fixed by the court for
the deposit of the arrears of rent shall not be less than four weeks
from the date of the order and the time fixed for the deposit of rent
which subsequently accrues due shall not be less than two weeks
from the date on which the rent becomes due.
8. As per sub-section (3) of Section 12 of the Act, if any
tenant fails to pay or to deposit the rent as aforesaid, the Rent
Control Court or the Appellate Authority, as the case may be, shall,
unless the tenant shows sufficient cause to the contrary, stop all
further proceedings and make an order directing the tenant to put
the landlord in possession of the building. As per sub-section (4) of
Section 12, when any deposit is made under sub-section (1), the
Rent Control Court or the Appellate Authority, as the case may be,
shall cause notice of the deposit to be served on the landlord in the
prescribed manner, and the amount deposited may, subject to such
conditions as may be prescribed, be withdrawn by the landlord on
application made by him to the Rent Control Court or the Appellate
Authority in that behalf.
9. In Williams Daniel v. Jose [2019 (5) KHC 205]
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 an enquiry
and decide whether the denial is true or not.
10. 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 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.
11. Viewed in the light of the provisions under Section 12
of the Act and also the law laid down in the decision referred to
supra, it cannot be said that, while directing the tenant to remit
rent at the rate of Rs.140/- per month, during the pendency of
R.C.A.No.50 of 2018, the Rent Control Appellate Authority has
committed any manifest error, warranting interference invoking
the supervisory jurisdiction of this Court under Article 227 of the
Constitution of India.
12. 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.
13. 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.
14. 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 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.
15. 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. 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.
16. 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 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.
17. 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 natural justice have been flouted.
18. In such circumstaces, we find no reason to interfere with
Ext.P5 order dated 24.10.2018 of the Rent Control Appellate
Authority in I.A.No.1636 of 2018 in R.C.A.No.99 of 2018.
19. The learned counsel for the respondent-tenant would
submit that the tenant had already paid arrears of monthly rent at
the rate of Rs.140/- per month and that, the tenant shall continue
to pay monthly rent, during the pendency of R.C.A.No.99 of 2018.
20. The above submission made on behalf of the
respondent-tenant is recorded.
21. As per the report of the Rent Control Appellate Authority,
the time limit required for the final disposal of R.C.A.No.99 of 2018
is one month from the date of receipt of the records.
22. Though interference is declined on Ext.P5 order, this
original petition is disposed of by directing the Rent Control
Appellate Authority to finally dispose of R.C.A.No.99 of 2018 along
with R.C.A.No.50 of 2018, as expeditiously as possible, at any rate,
within a period of one month from the date of receipt of a certified
copy of this judgment.
Registry shall return the lower court records in R.C.A.No.99 of
2018, forthwith by messenger. Registry shall also verify whether
the lower court records called for in R.C.R.Nos.159 and 177 of 2014
has already been retunred to the court below.
Sd/-
ANIL K. NARENDRAN
JUDGE
Sd/-
K. BABU
JUDGE
yd
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUECOPY OF THE AFFIDAVIT IN SUPPORT OF
THE I.A NO.1636 OF 2018 IN R.C.A NO.99
OF 2018 U/S. 12 OF THE ACT 2 OF 1965 IN
RENT CONTROL APPELLATE
AUTHORITY(DISTRICT JUDGE) KOZHIKODE-I.A.
EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED
BY THE RESPONDENT IN I.A.NO.1636 OF 2018
IN R.C.A.NO.99 OF 2018 OF THE RENT
CONTROL APPELLATE AUTHORITY AND I
ADDITIONAL DISTRICT JUDGE, KOZHIKODE.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN
R.C.R.NO.159/2014 ON 06.06.2017 OF THE
HIGH COURT OF KERALA,
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN R.C.P. NO.9
OF 2011 DATED 22.01.2018 OF THE RENT
CONTROL COURT(MUNSIFF), KOZHIKODE IIP.
EXHIBIT P5 CERTIFIED COPY OF THE JUDGMENT IN I.A
NO.1636 OF 2018 IN R.C.A.NO.99 OF 2018
OF THE RENT CONTROL APPELLATE AUTHORITY
& I ADDITIONAL DISTRICT JUDGE,
KOZHIKODE.
RESPONDENT'S EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
