IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 23610 of 2010(A) --------------------------------- RCA.99/2007 of VI ADDL. DISTRICT COURT & RCAA, ERNAKULAM .................... PETITIONER(S): ----------------- T.K.SURESH KUMAR, AGED 42 YEARS, S/O.KUMARAN, THAZHATHEVEETTIL, ELAMPRA KARA, ERAMALLOOR VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S): ------------------- K.T.JOHN, AGED 69 YEARS, S/O.YOHANNAN, KATTACKAL HOUSE, RAMAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK-686 673. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.23610 of 2010 ------------------------------------------------ Dated this the 28th day of July, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this Writ Petition filed under Article 227 of the Constitution of India is Ext.P7 common order passed by the Rent Control Appellate Authority, Ernakulam on two cheque applications, one filed by the landlord and one filed by the Writ Petitioner who was found to be a sub tenant of the premises concurrently by all the courts including the Supreme Court of India. The amount under deposit was a sum of Rs.54,000/-. It was the petitioner, the sub tenant who deposited the amount. The amount admittedly W. P. C. No.23610 of 2010 -2- covers the rent which was payable in respect of the building in question for a particular period. Nobody has a case that the tenant who has sublet the building to the Writ Petitioner had paid that amount to the landlord. When the civil appeal preferred by the petitioner assailing the judgment of this Court and Rent Control Appellate Authority became unsuccessful, the Supreme Court granted six months' time from the date of Supreme Court's order to the Writ Petitioner for surrendering the premises “subject to filing of the usual undertaking by the petitioner within a period of four weeks”. The usual undertaking which the Supreme Court had in mind was an undertaking to the effect that the peaceful surrender of the W. P. C. No.23610 of 2010 -3- building will be given to the landlord on expiry of the period and that rent in arrears will be discharged and further that rent which falls due shall also be paid as and when the same falls due. 2. The submissions of Sri.G.Rajagopal, the learned counsel for the Writ Petitioner was that the building was vacated by the Writ Petitioner as soon as the Supreme Court passed its order and the petitioner did not file any undertaking before the Supreme Court that the rent in arrears will be paid. According to the learned counsel, since the petitioner did not avail the benefit of time granted by the Supreme Court there is no question of the petitioner depositing amount ordered to be deposited by the Supreme Court. As for the W. P. C. No.23610 of 2010 -4- amount deposited Sri.Rajagopal submitted that the same was for obtaining stay against execution of the order which was impugned before this Court and before the Appellate Authority earlier. As regards the amounts under deposit, Sri.Rajagopal submits that it was never the landlord's case that the Writ Petitioner is a tenant under the landlord. The landlord's case all along was that the Writ Petitioner was not liable to pay any amount to the landlord but it was the first respondent in the RCP who alone was liable to pay. That being the situation, the landlord's present claim for the amount which is deposited by the Writ Petitioner who has been concurrently found to be a sub tenant only was unsustainable. W. P. C. No.23610 of 2010 -5- 3. When we enquired of Sri.Rajagopal as to whether it was not the petitioner who was in possession and enjoyment of the building all through the Rent Control Proceedings and also if was not liable for the loss sustained by the landlord, Sri.Rajagopal's answer was that the landlord never raised the question of damages for use and occupation against the Writ Petitioner. 4. We have very anxiously considered the grounds raised in the Writ Petition as well as the submissions addressed at the Bar. We have scanned Ext.P7 order passed by the learned Appellate Authority. We do not find any warrant for invoking the visitorial jurisdiction of this Court under Article 227 of the Constitution for W. P. C. No.23610 of 2010 -6- interfering with Ext.P7. Visitorial jurisdiction is invoked only very sparingly and only in exceptional circumstances. Having gauged Ext.P7 by the yardsticks which are applicable to the exercise of visitorial jurisdiction under Article 227, we have to say that we do not find any warrant at all for interference. Ext.P7 order cannot be said to be per se illegal in the sense that it offends any provision of law either statutory or settled. It cannot be said that the same has been passed without any jurisdiction nor can it be said that it results in injustice. It can never be said that the order is one which can be branded as perverse in the sense that no such order will be written by anybody who is having reasonable training and W. P. C. No.23610 of 2010 -7- knowledge in law. Admittedly, the petitioner was in possession and enjoyment of the building in question during the period pertaining to the amount. He was conducting furniture business. He does not have a case that he has paid what is due from him to the first respondent in the RCP. In fact he was all along contending that he was a tenant in his own right. Even on his own contentions he was liable to pay rent. Of course his contentions were repelled. The resulting situation is that he was in possession and enjoyment of the building doing business in furniture without paying any amount to anybody either to the landlord of the building or to its tenant. According to us by whatever name we call W. P. C. No.23610 of 2010 -8- it, he is liable to make good the loss sustained by the landlord on account of the rent payable for the period pertaining to the amount under deposit. Ext.P7 is confirmed. The Writ Petition is dismissed. No costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-