IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 22458 of 2010 (F) -------------------------------- AGAINST THE ORDER IN IA.1208/2010 IN RCP.51/2005 of RENT CONTROL COURT/MUNSIFF COURT, THALASSERY .................... PETITIONER(S)/APPELLANT/PETITIONER: ---------------------------------------------- V.K.BADRULHUDA,S/O.LATE P.M.ABDUL RAHMAN AGED 64,HALEEMA MANZIL,KAYYATH HOUSE,KAYYATH ROAD, THALASSERY.P.O,KANNUR. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA SRI.P.K.RAKESH KUMAR RESPONDENT(S): RESPONDENTS/RESPONDENTS -------------------------------------------------------- 1. RADHA,W/O.LATE BALAN,AGED 70,BUSINESS, PARIYATTU HOUSE,P.O.NITTUR,THALASSERY TALUK, KANNUR. 2. USHA,D/O.LATA BALAN,AGE NOT KNOWN -DO- 3. PREMI,D/O.LATE BALAN -DO- 4. MANOHARAN,S/O.LATE BALAN, -DO- 5. PRADEEPAN,S/O.LATE BALAN, -D0- 6. PRAVEEN,S/O.LATE BALAN, -DO- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.22458 of 2010 ------------------------------------------------ Dated this the 19th day of July, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this Writ Petition filed under Article 227 of the Constitution of India instituted by the landlord is Ext.P5 order of the Rent Control Court, Thalassery. Under Ext.P5, the learned Rent Control Court dismissed I.A.1345/10 filed by the petitioner under Order 26 Rule 10(2) seeking remittance of a Commission Report in that case to the Commissioner so that there will be a report in compliance with the directions of the Appellate Authority in the remand order which was passed by that authority under Ext.P2. A W. P. C. No.22458 of 2010 -2- reading of Ext.P2 shows that the issue which was remanded to the Rent Control Court was the issue whether the Rent Control Petition was liable to fail by virtue of the first proviso to sub Section 3 of Section 11. The landlord's defence to the tenant's contention that the RCP was liable to fail by virtue of the first proviso was that the building pointed out by the tenant which even at the time of the original inspection by the Commissioner was in a highly dilapidated condition have now completely collapsed and it cannot be held that the landlord is in vacant possession of that building as contemplated by the first proviso. It was pursuant to Ext.P2, the petitioner/landlord filed an I.A. seeking issuance of a fresh commission. We are told that the above I.A. was dismissed by the Rent W. P. C. No.22458 of 2010 -3- Control Court. For the reasons best known to the petitioner, he did not feel like challenging that order before this Court under Article 227. But what he did was to file the present I.A. under Order 26 Rule 10(2). The learned Rent Control Court under Ext.P5 has dismissed the present I.A. saying that it is not clear from the present I.A. As to what all are the matters to be ascertained by the Commissioner and that the present I.A. is filed by the petitioner for overcoming the order of the Rent Control Court dismissing the I.A. for issuance of a fresh commission. It is also stated that the endeavour of the petitioner is to drag the proceedings. 2. We are unable to agree with the observation of the learned Rent control Court that W. P. C. No.22458 of 2010 -4- the petitioner/a landlord who was seeking eviction was dragging the proceedings and the very intention in filing the commission application which was dismissed and the instant application which is dismissed under Ext.P5 is to drag on the proceedings. We are sure that the Commission application and the instant application were filed by the petitioner for bringing on record evidence for showing that the first proviso to sub Section 3 of Section 11 does not apply to the RCP. The only reason in Ext.P5 order which has some appeal to us is the reason that the landlord has not challenged the previous order of the Rent control Court dismissing the commission application. But then, the question before us is whether we should invoke the visitorial jurisdiction of this Court under W. P. C. No.22458 of 2010 -5- Article 227 for interfering with Ext.P5. That question has to be answered in the negative as visitorial jurisdiction is not a jurisdiction to be invoked for correcting each and every wrong order passed by a subordinate court. According to us, it may still be possible for the petitioner to produce evidence before the Rent Control Court such as photographs and oral evidence for proving that the building in question (the building with reference to which the plea of first proviso to Section 11(3) is raised) has completely fallen to the ground. It will also be possible for the revision petitioner to challenge Ext.P5 and also the earlier order dismissing the fresh commission application filed by the petitioner by raising proper grounds in the Rent Control Appeal which to the revision W. P. C. No.22458 of 2010 -6- petitioner may have to file against the ultimate order passed by the Rent Control Court if the same happens to be against the revision petitioner. We are sure that the Rent Control Appellate Authority will be mindful of the statutory provisions which are to the effect that in the matter of holding enquiry and permitting adduction of evidence, the Rent Control Appellate Authority has got co-equal powers with the Rent Control Court. Hence, we decline jurisdiction and dismiss the Writ Petition. 3. We direct the Rent Control Court to adjourn the RCP presently listed for trial in the special list tomorrow by at least seven days. Rent Control Court will permit the petitioner to adduce evidence in the form of photographs and oral W. P. C. No.22458 of 2010 -7- evidence for substantiating his answer to the plea under the first proviso to Section 11(3). PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-