IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 36294 of 2009(F) -------------------------- RCP.7/2008 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER(S): --------------- SUGUNAN, S/O.ALAYIL GANGADHARAN, EL-THRUTHU DESOM, MATHALA VILLAGE KODUNGALLUR. BY ADV. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S): --------------- PRADEEP, S/O.VALLOMPARAMBATH PANIKKASSERY SANKUNNI LOKAMALESWARAM VILLAGE AND DESOM, KODUNGALLUR THALUK, KODUNGALLUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ W.P.(C).No. 36294 OF 2009 ------------------------ Dated this the 16th day of December, 2009 JUDGMENT Pius C.Kuriakose, J. Under challenge in this writ petition under Article 227 filed by the tenant is Ext.P5 order passed by the Rent Control Court dismissing an application for issuance of commission for measurement and identification of an item of immovable property allegedly belonging to the tenant. The commission application was filed by the tenant for substantiating his defence to the ground for eviction under Section 11 (4) (iii). The allegation of the landlord was that the tenant is in possession of other buildings in the same town reasonably sufficient for the tenant's requirements. The commissioner deputed by the court at the instance of the landlord reported that the petitioner is residing in the building having door number 6/241 and that in front of that building a driving school in the name and style of “Driving School, Association Kodungallur” is functioning. WPC.No.36294/2009 2 2. The contention of the petitioner, it appears is that on the land owned by him no building exists or that he is not the owner of any building. This was why he applied unsuccessfully for issuance of a commission. The learned Rent Control Court has taken the view that, in the light of the commission report it is for the tenant to substantiate the objection filed by him to the report during the trial of the RCP which is yet to commence. The ground, which is mainly urged in this writ petition, is that the court below is not correct in observing that the tenant has admitted that the building reported by the commissioner belongs to him. According to the tenant, if measurement of the property is conducted on the basis of the title document, it will be revealed that the building is outside the property covered by the title document. 3. The supervisory jurisdiction of this court under Article 227 is a visitorial jurisdiction which will be invoked only very sparingly. Having guaged Ext.P5 by the standards applicable for exercise of the supervisory jurisdiction, we are of the view that Ext.P5 is not vitiated to the extent of justifying correction under the supervisory jurisdiction. It cannot be stated that Ext.P5 order is per se illegal in the sense that it violates clear provisions WPC.No.36294/2009 3 of law either statutory or settled. It cannot be stated that Ext.P5 results in injustice or failure of justice or causes prejudice to any of the parties. It also cannot be stated that Ext.P5 is an order which can be branded as a perverse order in the sense that such an order will be authored by any one with reasonable training and learning in law. 4. Coming to the merits also, we are of the view that for substantiating the defence to the eviction ground under Section 11 (4) (iii), it is not necessary that the petitioner proves before the Rent Control Court that he does not have ownership over the building reported by the advocate commissioner. The ground under Section 11 (4) (iii) is not concerned with ownership over the building. It is concerned only the possession. If it is the case of the petitioner that he does not have possession of the building reported by the commissioner, it is always open to him to prove the same by producing documents like copies of the Property Tax Assessment Registers pertaining to the building or other acceptable evidence for proving his case regarding possession. WPC.No.36294/2009 4 Challenge against Ext.P5 necessarily has to fail. Accordingly, the writ petition will stand dismissed. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk