IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No.9894 of 2010(J) ------------------------------ AGAINST THE ORDER IN I.A.3961/09 IN RCP.38/2008 of ADDL.M.C.,KOZHIKODE-II .................... PETITIONER(S): ------------------ 1. K.SREEMATHI, W/O.VENU, AGED 72 YEARS, KAKKADATH HOUSE, CHERUVANNUR, KOZHIKODE. 2. K.SANALKUMAR, S/O.LATE DAKSHAYANI, KASABA AMSOM, DESOM, KOZHIKODE. 3. K.SACHIN BABY, S/O.LATE DAKSHAYANI, KASABA AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENT(S): ------------------- AMBALAMPALLI ASYA UMMA, W/O.MUHAMMED, VALAYANAD AMSOM DESOM, KOZHIKODE. ADV. SRI.K.M.FIROZ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.9894 of 2010 ------------------------------------------------ Dated this the 25th day of March, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this writ petition filed under Article 227 is Ext.P7 order by which the Rent Control Court, Kozhikode dismissed an application filed by the petitioners/tenants for getting a report filed by the Commissioner set aside. Ext.P6 is yet another application filed by them for permission to examine the Advocate Commissioner in connection with the application to set aside the commission report. The grievance of the petitioners is not only against Ext.P7, but is also against Ext.P6. The Rent Control Court has not passed any order on Ext.P6. 2. We heard Sri.P.V.Kunhikrishnan, the learned counsel for the petitioners and Sri.K.M.Firoz, the learned counsel for the respondent. We have gone through Ext.P7 order. Learned Rent Control Court noticed that no useful purpose will be served by W. P. C. No.9894 of 2010 -2- allowing remission of the commission's report or by setting aside the report. Eviction was sought on the ground of sub-letting and the report was submitted by the commissioner on the basis of an emergent surprise inspection which was conducted at the time when the RCP was instituted. It appears that the report is to the effect that somebody other than the tenants are in occupation of the building. 3. The submission of Mr.Kunhikrishnan is that so long as the above report stands, the mind of the court is likely to be prejudiced against the tenant while considering the ground of sub lease. We do not think so. As noticed by the Rent Control Court, it is open to the tenant to cite the Advocate Commissioner as a witness during the course of enquiry in the RCP and cross examine him effectively. Moreover, the Rent Control Court is not going to order eviction on the ground of sub lease just because at the time of inspection by the Commissioner somebody else was found inside the building. The Rent Control Court will certainly look for evidence as to whether there is unauthorised sublease or W. P. C. No.9894 of 2010 -3- transfer of the tenants' interest over the entire building or at least a part of the building. Only on the basis of evidence will the court enter findings regarding the existence or otherwise of the eviction ground. A reading of the impugned order Ext.P7 will show that the court below has virtually permitted the tenant to substantiate his objections to the C.R. during the course of the enquiry in the RCP. The acceptability and probative value of the Commissioner's Report will be decided by the court after the trial in the RCP is over. 4. It appears to us that Ext.P6 application is kept pending by the Rent Control Court to be considered after the Commissioner is cross examined. We do not find anything wrong about that. 5. Jurisdiction of this Court under Article 227 of the Constitution is a visitorial jurisdiction which is invoked only very sparingly. Having gone through Ext.P7, we are unable to say that the same is vitiated to the extent of warranting interference by invoking the above jurisdiction. W. P. C. No.9894 of 2010 -4- 6. The result is that the Writ Petition will stand dismissed. It is ordered that the Rent Control Court will enquire into the RCP and decide the same without being influenced by any of the observations contained in the impugned order against the tenant/petitioner. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE pmn & kns/-