IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 26828 of 2009(W) -------------------------- RCP.123/2007 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER(S): --------------- V.S.RAMAKRISHNAN, AGED 61 YEARS, S/O. V.A.SANKUNNY, RAMARADHANILAYAM, CHALIKKAVATTOM, VENNALA P.O. ERNAKULAM DISTRICT. BY ADV. SRI.C.P.SAJI RESPONDENT(S): --------------- , DR. JENNY ELIZABETH MATHAEW AGED 68 YEARS, D/O. P.V. MATHEW, JENNY VILLA, BANERJI ROAD, ERNAKULAM NORTH, KOCHI – 18. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ W.P.(C)No.26828 OF 2009 ------------------------ Dated this the 24th day of September, 2009 JUDGMENT Pius C.Kuriakose, J. In this writ petition under Article 227, the petitioner/tenant challenges Exts.P9 and P10 orders of the local Rent Control Court. Under Ext.P9, the learned Rent Control Court has dismissed an application for issuance of commission for local inspection of the petition schedule building. Ext.P10, another application for setting aside the advocate commissioner's report already available in the case, also stands dismissed. 2. Sri.C.P.Saji, learned counsel for the petitioner addressed us extensively on the various grounds raised in the memorandum of writ petition. He submitted that if Exts.P9 and P10 are allowed to stand, considerable prejudice will be occasioned to the petitioner since in the RCP, cessation of occupation (Section 11 (4)(v)) is the only ground of eviction invoked. It is likely that the learned Rent Control Court will be unduly influenced by the commission report presently available, which is to the effect that the petition schedule building was found closed and that the WPC.No.26828/2009 2 same contains heaps of dust. The learned counsel submitted that the building is situated by the side of Banerji Road in between Kacheripady junction and North railway over bridge, where the traffic is heaviest, inevitably resulting in buildings by the side of the road getting dusty. The application for issuance of commission was filed for getting a report regarding the lie and location of the building and also regarding the furnishing available in the building, which according to the learned counsel, is furnished in such a way as to facilitate conduct of finance business in a good scale and style. The commission report presently available in the case is an ex parte report and the learned Rent Control Court could have set aside the same, so that a report based on an inspection conducted with notice to both sides is made available. 3. We have anxiously considered the submissions of Sri.Saji and we have carefully gone through Exts. P9 and P10 and also other documents placed on record by the writ petitioner. The supervisory jurisdiction of this court under Article 227 is invoked only very sparingly. The said jurisdiction is not to be invoked for correcting the infirmities in each and every order that WPC.No.26828/2009 3 is passed by courts subordinate to this court. Supervisory jurisdiction is invoked only when it can be said that the order passed is without jurisdiction, or is per se, illegal, in the sense that it offends law statutory or settled or when the order results in miscarriage of justice or patent unjustice. Supervisory jurisdiction can also be invoked in cases where it can be said that the order passed by the Subordinate Court is so wholly unreasonable in the sense that such an order can be branded as perverse and will not be passed by any person having reasonable learning and training in law. We have guaged Exts.P9 and P10 by those para meters. We do not find any warrant for invocation of the supervisory jurisdiction under Article 227 for correcting Exts.P9 and P10. The specific defence of the writ petitioner to the landlady's allegation, that the writ petitioner ceased to occupy the building for the statutory period of six months prior to the institution of the RCP, is that he has been carrying on finance business in the petition schedule building. Conduct of finance business in a given building is an aspect which can be proved by producing documentary evidence. If the petitioner produces convincing documentary evidence before the Rent WPC.No.26828/2009 4 Control Court proving that he had been carrying on finance business during the relevant period of six months, we are sure that the Rent Control Court is not going to prefer the commission report presently available to such documentary evidence for taking decision in the case as to whether the statutory eviction ground under Section 11 (4) (v) is made out. 4. As for the order dismissing the application to set aside the commission report, we informed that the petitioner is yet to cross examine the commissioner. It is open to the petitioner to cite the commissioner as a witness and to cross examine him. Once the commissioner is cross examined, the learned Rent Control Court will assess the probative value of the commission report in the light of the evidence adduced by the commissioner. If the impression gathered by the learned Rent Control Court on appreciating the evidence adduced by the commissioner is that much probative value cannot be attached to the commission report, our refusal to interfere with Ext.P10 will not stand in the way of the court declining to place reliance on the commission report for the purpose of adjudicating this case. According to us, it is not necessary for the petitioner to take out a commission WPC.No.26828/2009 5 to prove that there is heavy rush of traffic on the Banerji Road. That is an aspect, which can be proved by examining competent witness. In the above view of the matter, we are not inclined to grant any of the reliefs sought for by the writ petitioner. However, considering the request of Sri.Saji that copies of some documents have been applied for, for producing before the court, we direct the Rent Control Court to re list the RCP for trail after 15/10/2009. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk