IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 OP (RC).No. 719 of 2010(O) -------------------------------- RCP.13/2010 of MUNSIFF & RENT CONTROL COURT,KOCHI .................... PETITIONER: --------------- MRS.URMILA.M.SHAH, AGED 69, W/O.MANIKANT D.SHAH, RESIDING AT CC.12/1553, SANDO GOPALAN ROAD, CHULLIKKAL, KOCHI-682 005. BY ADV. SRI.P.K.RAVINDRAN PUZHANKARA RESPONDENT(S): ------------------- 1. MRS.RAMESWARI DEVI, WIFE OF LATE SHEOKUMAR GAUR, RESIDING AT CC.8/2287, LALAN ROAD, MATTANCHERRY, KOCHI-682 002. 2. MRS.SAROJ GAUR, WIFE OF LATE RAVINDRA GAUR, RESIDING AT CC.8/2298 A, `AVANTIKA', LALAN ROAD, MATTANCHERRY, KOCHI-2. 3. MRS.ANURAM GAUR, SON OF RAVINDRA GAUR, RESIDING AT CC.8/2298 A, `AVANTIKA', LALAN ROAD, MATTANCHERRY, KOCHI-2. 4. MS.AVANTIKA GAUR, DAUGHTER OF RAVINDRA GAUR, RESIDING AT CC.8/2298 A, `AVANTIKA', LALAN ROAD, MATTANCHERRY, KOCHI-2. O.P.(RC) No.719/10 -2- 5. MR.RAJENDRAKUMAR SHARMA, SON OF LATE SHEOKUMAR GAUR, RESIDING AT CC.8/2287, LALAN ROAD, MATTANCHERRY, KOCHI-682 002. 6. MR.OM PRAKASH SHARMA, SON OF LATE SHEOKUMAR GAUR, RESIDING AT C.C.8/2287, LALAN ROAD, MATTANCHERRY, KOCHI-682 002. ADV. SRI.ASHIK K.MOHAMMED ALI FOR R1,5,6 THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ O. P. (RC) No.719 of 2010 ------------------------------------------------ Dated this the 26th day of November, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this O. P. filed under Article 227 of the Constitution of India by the landlady is an order passed by the learned Rent Control Court, Kochi in I.A.1702/10 in R.C.P.13/10. Even though, it is the supervisory jurisdiction under Article 227 which is invoked, the petitioner has not produced full text of the above order in this Court. However, in Page No.4 of the O.P. Memo, the order has been extracted and there is no dispute before us that what has been extracted is not a correct copy of the order. In the O. P. (RC) No.719 of 2010 -2- impugned order the learned Rent Control Court has allowed a Commission application filed by the tenant with the following prayers and directed the Commissioner to inspect and report on the following points:- “1) To ascertain whether any vacant shop rooms are available for rent in the vicinity of the petition schedule shop room. 2) If any vacant rooms are found available, ascertain about the rent as well as the security for the same and whether the same is suitable for the conduct of a provision store as is now carried on in the petition schedule shop room and ascertain whether the landlord is willing to rent out the same for conducting a provisions store. 3) Any other matters that are requested by the petitioner or his counsel at the time of inspection.” 2. The submission of Sri.P.K.Ravindran, the learned counsel for the petitioner before us was that the learned Rent Control Court should not have allowed the Commission application which O. P. (RC) No.719 of 2010 -3- contained vague and confusing prayers. According to the learned counsel, the expression 'vicinity' used in point No.1 is likely to give room for considerable ambiguity and confusion. Learned counsel submitted that expression is not used in the statute at all. The statute uses the expression 'locality' which is a fairly larger area than the immediate vicinity of the building. The learned counsel was more emphatic in his challenge of point No.2. According to the learned counsel, it is to substantiate the tenant's claim for protection under the second proviso to sub Section 3 of Section 11 and the proviso to sub Section 8 of Section 11 that the tenant is taking out Commission. The tenants endeavour is to bring to O. P. (RC) No.719 of 2010 -4- the notice of the court to the fact that other suitable buildings are not available in the locality. Whether the buildings are suitable for the tenant and whether the buildings are actually available for the tenant on lease, are all matters which cannot be reported by a Commissioner by mere inspection. Those are all matters on which the tenant will have to adduce better evidence including the depositions of the owners of the concerned building. We find force in the submission of Sri.Ravindran. The submission of Sri.Ashik K. Mohammed Ali, the learned counsel for the respondent was that there is no warrant for invocation of the supervisory jurisdiction of this Court for correcting the order passed by the O. P. (RC) No.719 of 2010 -5- Rent Control Court in I.A.1702/10. The commission has been issued for the purpose of collecting evidence which will enable the Rent Control Court to decide the issue whether the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11 correctly. Commissions are always being issued for elucidating the matters in this dispute. 3. Having considered the rival submissions, we are of the view that it will suffice that we dispose of the O.P by issuing the following clarifications. a) The word 'vicinity' used in Point No.1 will be understood by all concerned as the area of the Division of Cochin Corporation wherein the O. P. (RC) No.719 of 2010 -6- petition schedule building is situated and also the adjoining division Nos.3, 4, 5, 6 and 7. b) The report by the Commissioner on the basis of the inspection will be only an item of evidence in the case. c) The probative value and admissibility of matters reported by the Commissioner will be assessed by the learned Rent Control Court on the basis of further evidence that comes on record. 4. We also permit both sides to submit work memos before the Commissioner and the Commissioner should file report on the basis of the work memos also. But as we have already stated, the admissibility of matters reported by the Commissioner is a matter for the Rent Control O. P. (RC) No.719 of 2010 -7- Court to decide ultimately. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-