Abdul Jabber vs Chalil Chalakkandi Moosa
2023 Latest Caselaw 10153 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                   &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                      OP (RC) NO. 149 OF 2023
  AGAINST THE ORDER DATED 01.08.2023 IN I.A No.03/2023 IN
    R.C.P No.66/2022 OF THE RENT CONTROL COURT, MANJERI
PETITIONER/RESPONDENT:


         ABDUL JABBAR
         AGED 58 YEARS
         S/O.PUZHANKARA ILLATH MUHAMMED KUNHI,
         KAIPPAMANGALAM.P.O, KODUNGALLOOR,
         THISSUR DISTRICT, PIN - 680681
         BY ADVS.
         M.A.ABDUL HAKHIM
         JOSEPH GEORGE

RESPONDENT/PETITIONER:


         CHALIL CHALAKKANDI MOOSA
         AGED 71 YEARS
         S/O.CHALIL CHALAKKANDI MUHAMMED,IRUMPUZHI. P.O
         MALAPPURAM DISTRICT, PIN - 676509
         BY ADV.
         K.M SATHYANATHA MENON

     THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
21.09.2023,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                      2
O.P(RC) NO.149 of 2023


                           JUDGMENT

P.G.Ajithkumar, J.

The petitioner is the tenant. The respondent is the

landlord. He filed R.C.P No.66 of 2022 before the Rent Control

Court (Munsiff), Manjeri seeking eviction under Section 11(2)

(b) and 11(3) of the Kerala Buildings (Lease and Rent Control)

Act, 1965. An Advocate Commissioner was appointed in I.A

No.2 of 2023, which was filed by the respondent, and the

commissioner filed her report. The petitioner filed I.A No.3 of

2023 for setting aside that report, but it was dismissed by the

Rent Control Court as per the order dated 01.08.2023. The

petitioner challenges that order in this original petition.

2. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

3. Ext.P2 is a copy of the objection filed by the

petitioner in R.C.P No.66 of 2022. In the objection, the

petitioner claimed the benefit of the second proviso to Section

11(3) of the Act and contended that no building suitable to

shift his business from the petition schedule premises is

O.P(RC) NO.149 of 2023

available in the locality. In the wake of that contention, the

respondent filed I.A No.2 of 2023. The grievance of the

petitioner is that in pursuance to the notice issued by the

Commissioner, a copy of which is Ext.P5, he waited in the

petition schedule building, but the Commissioner without

visiting the said building, filed a report inferably after

inspecting buildings elsewhere. It is alleged that the

inspection by the Commissioner was therefore without giving

notice to the petitioner, and hence the report of the

Commissioner is liable to be set aside.

4. The respondent filed objection to I.A No.3 of 2023,

a copy of which is Ext.P6. From the contentions of the

petitioner in I.A No.3 of 2023 and that of the respondents in

his objection it can be seen that the Commissioner did not go

to the petition schedule premises. The stand of the

respondent is that the petitioner was aware of the purpose of

inspection and hence it was his obligation to reach the office

of the Commissioner and accompany her to the place of the

inspection.

5. The learned counsel appearing for the respondent

O.P(RC) NO.149 of 2023

would submit that there was no indication in Ext.P3 that the

Commissioner would reach the petition schedule building and

hence the contention of the petitioner cannot be

countenanced. From the wording in Ext.P3 we are unable to

agree with the said contention. The Commissioner stated in

Ext.P3 that 'I will inspect the property in the above petition on

14.06.2023 at about 2.30 p.m'. From that what could be

inferred is that the commissioner would reach the petition

schedule building. The learned counsel appearing for the

respondent fairly conceded that the report filed by the

Commissioner does not reveal that she went to the petition

schedule building on that day. If so, it cannot be said that the

Commissioner acted in terms of Ext.P3 and the result is that

the inspection was without an effective notice to the

petitioner.

6. The reason given by the Rent Control Court in the

impugned order to disallow I.A No.3 of 2023, therefore, is not

sound. Fairness requires an inspection of the Commissioner

with notice to both sides, lest there will be denial of

opportunity and violation of the principles of natural justice.

O.P(RC) NO.149 of 2023

Insistence of Order 26 Rule 18 of the Code of Civil Procedure,

which is applicable to the rent control proceedings by virtue of

Section 23 of the Act, is also the same that notice regarding

the inspection of the commissioner shall be given to both

parties. In such circumstances, the impugned order is liable to

be set aside. We do so.

This original petition is allowed. I.A No.3 of 2023 in

R.C.P No.66 of 2022 stands allowed. The Rent Control Court

shall direct the Advocate Commissioner to conduct inspection

anew after giving notice to both sides specifying the date,

time and place where the Commissioner will reach for the

purpose of inspection and to file a fresh report, as

expeditiously as possible.

Sd/-

P.B.SURESH KUMAR, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE PV

O.P(RC) NO.149 of 2023

APPENDIX OF OP (RC) 149/2023

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PETITION DATED 08/08/2022 IN R.C.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI Exhibit P2 A TRUE COPY OF THE OBJECTION DATED 26/02/2023 FILED BY THE PETITIONER IN R.C.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI Exhibit P3 A TRUE COPY OF THE NOTICE OF INSPECTION DATED 08/06/2023 ISSUED BY THE ADVOCATE COMMISSIONER IN I.A.NO.2/2023 IN R.C.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI Exhibit P4 A TRUE COPY OF THE COMMISSION REPORT DATED 22/06/2023 IN I.A.NO.2/2023 IN R.C.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI Exhibit P5 A TRUE COPY OF THE I.A.NO.3/2023 IN R.C.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI DATED 19/07/2023 Exhibit P6 A TRUE COPY OF THE OBJECTION FLED BY THE RESPONDENT IN I.A.NO.3/2023 IN RC.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI DATED 20-07-2023 Exhibit P7 A TRUE COPY OF THE ORDER OF THE RENT CONTROL COURT, MANJERI DATED 01/08/2023 IN I.A.NO.3/2023 IN R.C.P.NO.66/2022 OF THE RENT CONTROL COURT, MANJERI