IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 OP (RC).No. 187 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.4946/2010 IN RCP.39/2010 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER/RESPONDENT/TENANT: ------------------------------------------ M/S.OLIVE CAPITAL AND SERVICES PVT.LTD., REP.BY ITS DIRECTOR, THOMAS JOSEPH S/O.LATE E.P.JOSEPH, AGED 51 YEARS, 35/1765 A, ALAPPATT SOUTH, JANATHA ROAD, PALARIVATTOM, COHCIN-25. BY ADV. SRI.K.R.MOHANAN RESPONDENT(S): PETITIONERS/LANDLORDS: --------------------------- 1. MRS.ODETTE FRANCES PLINTO @ ODETTE, AGED 56 YEARS, D/O.FRANCIS ROZARIO ILLIKKAPARAMBIL HOUSE, KOVILVATTOM DESOM ERNAKULAM VILLAGE PRESETNLY RESIDING AT `ODRON' S.R.M. ROAD, EXTENSION CERANALLOOR VILLAGE KOCHI-23. 2. MRS.FATIMA ROAZARIO @ NORAMA, AGED 58, W/O.JOHN THOMAS, D/O.FRANCIS ROZARIO, ILLIKKAPARAMBIL HOUSE, KOVILVATTOM DESOM, ERNAKUALM VILLAGE, PRESENTLY RESIDING AT `ODRON' S.R.M.ROAD EXTENSION CERANALLOOR VILLAGE, KOCHI-23. 3. MRS.DURY MARGARET D'CRUZE, AGED 52 W/O.GERARD D'CRUZE, D/O.FRANCIS ROZARIO, ILLIKKAPARAMBIL HOUSE, KOVILVATTOM DESOM, ERNAKULAM VILLAGE PRESENTLY RESIDING AT `ODRON' S.R.M.ROAD EXTENION, CERANALLOOR VILLAGE, KOCHI-23. 4. MRS.NOVELLA DENETTO @ LOVEY, AGED 51 YEARS, W/O.DARRYL DENETTO, D/O.FRANICS ROZARIO, ILLIKKAPARAMBIL HOUSE, KOVILVATOOM DESOM, ERNAKULAM VILLAGE PRESENTLY RESIDING AT `ODRON' S.R.M. ROAD EXTENION, CERANALLOOR VILLAGE, KOCHI-23, RES.2 TO 4 REP.BY RES.NO.1. ADV. SRI.M.S.NARAYANAN THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ O.P.(R.C).No. 187 OF 2010 ------------------------ Dated this the 6th day of October, 2010 JUDGMENT Pius C.Kuriakose, J. Under challenge in this original petition under Article 227 is Ext.P5 order passed by the Rent Control Court, Ernakulam on Ext.P3 application. The main petition before the Rent Control Court is a petition for fixation of fair rent filed by the respondents/landlords. The petition schedule building is the second floor of a commercial building situated on the western side of M.G.Road opposite to Seemati Textiles. The contract rent is Rs.6,000/- per month. The prayer of the landlords in the application is that the fair rent be fixed at the rate of Rs.20 per sq. feet for the building which has an extent of 1750 sq.feet. Ext.P3 is the copy of the commission application filed by the landlords. Point Nos. 1 to 4 sought for to be noted by the commissioner, in our view, are relevant points and the petitioner tenant cannot have any legitimate grievance in the learned Rent Control Court issuing a commission for submitting report on O.P.(R.C).No.187/2010 2 those points. Point Nos. 5 to 7 are the following; 5. What is the expected rate of rent from similar building of petition schedule let out ? 6. What is the present rent of the ground floor of the building where the petition schedule premises situated ? What was the same in 2008 ? 7. What is the present rent of the nearly buildings let out for rent ? 2. Sri.K.R.Mohanan, learned counsel for the petitioner, submitted that the above quoted three points are beyond the scope of inspection and report by a local inspection commissioner appointed under Order 26 Rule 9. According to him, the question as to what is the rent that can be expected from a similar building is a question to be answered by the Rent Control Court on the basis of evidence that is adduced by the parties. As regards the point No.6, Mr.Mohanan submitted that, the said question is capable of being proved by production of documentary evidence or oral evidence to be adduced by either the owner or the tenants of that building. As regards the point No.7, the learned counsel submitted that the advocate commissioner is not expected to go around the city and collect oral evidence from the occupants of nearby buildings. If the O.P.(R.C).No.187/2010 3 landlord has a case that nearby buildings are let out for higher rent, it is for the landlord to adduce oral and documentary evidence to prove the same. Mr.Mohanan submitted that Ext.P5, to the extent it allows the commissioner to report on points 5, 6 & 7, is vitiated and warrants correction under the supervisory jurisdiction of this Court. 3. Sri.M.S.Narayanan, who has taken notice on behalf of the respondents/landlords, would resist the submissions of Sri.Mohanan. According to Mr.Narayanan, Ext.P5 is an innocuous order under which the Rent Control Court has issued a commission for the purpose of collecting relevant evidence. Report on all the points mentioned in Ext.P3 will enable the Court to take a correct decision in the matter. There is no warrant for invocation of the supervisory jurisdiction of this Court under Article 227 of the Constitution. 4. Having anxiously considered the rival submissions addressed at the Bar, we notice merit in the submissions of Mr.Mohanan to the extent they pertain to point Nos.5,6 & 7 in Ext.P3. According to us, the learned Rent Control Court, by issuing commission under Ext.P5 to report on points 5,6 & 7 in O.P.(R.C).No.187/2010 4 Ext.P3, has delegated its judicial function to the Advocate commissioner. To that extent, Ext.P5 is vitiated. Hence, allowing the original petition in part, we set aside Ext.P5 to the limited extent of deleting the directions given to the advocate commissioner already appointed to inspect and report on point Nos.5, 6 & 7 mentioned in Ext.P3. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk Issue copy today itself.