IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 6296 of 2010(J) ------------------------- AGAINST THE ORDER DATED 02/02/2010 IN IA.2960/09 IN RCA.70/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.41/2006 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): --------------- M/S.MEDICAL AND COMMUNITY PHARMACY GUIDANCE SERVICE SOCIETY, REGISTERED (MEDICOPS) MUTTARAH HOUSE, MARKET ROAD,KOCHI,REPRESENTED BY ITS EXECUTIVE DIRECTOR,MR.T.K.M.ABDUL SATHAR, AGED 45, S/O.KUNJUMUHAMMED VYDIAR, KANJIRAMATTOM, AMBALLOOR VILLAGE. BY ADVS. SHRI. T.M. MOHAMMED YOUSEFF (SR.), SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K. SRI.JOBI.A.THAMPI SMT.M.KABANI DINESH SMT.BOBY M.SEKHAR SMT.T.V.HEMALATHA RESPONDENT(S): --------------- M.C.VAREED, AGED 51, S/O.CHERU ,H.NO. 32/1099, CHAKKARAPARAMBU,VENNALA PO,ERNAKULAM. ADV. SRI.BABU CHERUKARA FOR R1 SRI.R.THULASEEDHARAN PILLAI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF RENT CONTROL PETITION AS RCP 41/06 FILED BY THE RESPONDENT. EXT.P2 TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN R.C.P. 41/06. EXT.P3 TRUE COPY OF ORDER IN RCP 41/06 OF RENT CONTROL COURT, ERNAKULAM. EXT.P4 TRUE COPY OF APPEAL MEMORANDUM IN RCA 70/07 OF THE RENT CONTROL APPELLATE AUTHORITY. EXT.P5 TRUE COPY OF APPLICATION FOR AMENDMENT I.A.2960/09 IN RCA 70/07. EXT.P6 TRUE COPY OF COUNTER FILED BY THE RESPONDENT IN I.A.2960/09. EXT.P7 TRUE COPY OF ORDER DT.2.2.2010 IN IA 2960/09 IN RCA 70/07. /TRUE COPY/ K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 6296 of 2010 J - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010 JUDGMENT Joseph Francis, J. This Writ Petition under Article 227 of the Constitution of India is filed by the petitioner in I.A. No. 2960 of 1999 in R.C.A. No. 70 of 2007 on the file of the Rent Control Appellate Authority, Ernakulam with the following prayers. “(a) to call for the records leading to Ext.P7 order passed by the 1st Additional District Court Ernakulam and to quash the same by the issuance of a writ of certiorari. (b) to issue any other appropriate writ order or direction as deem fit and proper in the facts and circumstances of the case.” W.P.(C).No. 6296 of 2010 2 2. The case of the petitioner briefly is as follows. The petitioner is the appellant in R.C.A. No. 70 of 2007 on the file of the Rent Control Appellate Authority, Ernakulam. The respondent herein is the respondent in that case. The respondent landlord preferred a Rent Control Petition as R.C.P. No. 41 of 2006 under Section 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court allowed eviction only on the ground of Section 11 (8). Aggrieved by the eviction order, the petitioner preferred an appeal as R.C.A. No. 70 of 2007 before the Rent Control Appellate Authority, Ernakulam. 3. Since the Rent control Court allowed eviction only under Section 11(8) of the Act, the petitioner has filed Ext.P5 amendment application in R.C.A. No. 70 of 2007 to incorporate additional grounds regarding the question of comparative hardship in the event of eviction. But the court below, in a mechanical manner, dismissed the amendment application vide order dated 2.2.2010 on the reason that the W.P.(C).No. 6296 of 2010 3 petitioner has not pleaded the said contention in the trial stage, despite the fact that the objection filed by the petitioner herein in R.C. P. No. 41 of 2006 reveals that the petitioner has a consistent case that the hardship which may be caused to the petitioner by granting eviction will outweigh the advantage to the respondent landlord. Ext.P7 is the copy of the order in Ext.P5, I.A.No. 2960 of 1999 in R.C.A.No. 70 of 2007. Challenging that order the petitioner in that I.A. filed this Writ Petition. 4. Heard learned senior counsel for the petitioner and the learned counsel for the respondent. 5. Learned counsel for the petitioner submitted that Ext.P7 order is patently illegal against the facts, circumstances and probabilities of the case. The learned counsel for the petitioner further submitted that the Appellate Court failed to consider the judicial principles governing an amendment of proceedings as envisaged by Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act and Order 6 Rule 17 W.P.(C).No. 6296 of 2010 4 C.P.C. and as such the Court has committed a jurisdictional error, which warrants interference of this Court. The learned counsel further submitted that the Appellate Court went wrong in holding that the petitioner has not taken the contention regarding comparative hardship during the trial stage. Learned counsel for the petitioner further contended that the Appellate Court committed very serious mistake in dismissing Ext.P5 amendment petition, which has been filed to incorporate additional grounds omitted to be included in the appeal memorandum. Learned counsel for the respondent supported Ext.P7 order. 6. Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act provides that the Appellate Authority has power to amend any defect or error in orders or proceedings. Therefore, the Appellate Authority has power to allow amendment of the appeal memorandum. The pleadings includes memorandum of appeal also. In Ext.P5 amendment petition, the main amendment sought for is that the W.P.(C).No. 6296 of 2010 5 Rent Control Court failed to consider the comparative advantage, which the landlord may gain out of the order of eviction and the hardship which the tenant may have to suffer because of the order of eviction. In the event of the bonafides of the requirement under Section 11(8) becoming established, a finding will have to be entered regarding the first proviso to Section 11(10) of the Kerala Buildings (Lease and Rent Control) Act. On going through Ext.P4 Memorandum of Appeal, it is seen that the grounds mentioned in the amendment petition are there in the appeal memorandum itself in substance. 7. The powers under Article 227 of the Constitution does not vest the High Court with unlimited prerogative to correct all species of hardships or wrong decisions made within the limits of the jurisdiction of the Court or the Tribunal. Since there is no illegality in Ext.P7 order, we find no reason to interfere with that order. W.P.(C).No. 6296 of 2010 6 9. Accordingly, this Writ Petition is dismissed as it is without any merit. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm