Allowed

S.Dharmaraj v. Jose v.Manjooran

Kerala HC5 Nov 2014OP (RC)/138/2014

Case brief

AI extract

What is this about?

A writ petition under Article 227 challenged the refusal of a rent control court to issue a commission for local inspection in an eviction petition. The High Court found a jurisdictional failure by the lower court.

What did the court decide?

Original petition allowed; impugned order set aside; commission for local inspection directed to ascertain specified points within ten days; trial expedited within three months.

S.Dharmaraj Vs Jose v.Manjooran — Civil Procedure and Limitation | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH

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WEDNESDAY, THE 5TH DAY OF NOVEMBER 2014/14TH KARTHIKA, 1936

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OP (RC).No. 138 of 2014 (O)

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(AGAINST ORDER IN I.A.NO.1052/2014 IN RCP NO.14/2011 OF RENT CONTROL COURT, ALUVA DATED 07.10.2014)

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PETITIONER(S):/PETITIONER/ORIGINAL RESPONDENT

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S.DHARMARAJ, AGED 64 YEARS, S/O.SUKUMARA SASTHRI RESIDING AT KIZHAKKETHARA HOUSE, NEAR ZEENATH THEATRE, ALUVA-1.

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BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SMT.MEENA.A. SRI.M.DEVESH

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RESPONDENT(S):/RESPONDENTS/ORIGINAL PETITIONERS

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1. JOSE V.MANJOORAN S/O.VARKEY, MANJOORAN HOUSE, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK-683 101.

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2. LAILA CHERIYAN W/O.DR.CHERIYAN VARKEY, MANJOORAN HOUSE, ALUVA KARA ALUVA WEST VILLAGE, ALUVA TALUK-683 101

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R1-R2 BY ADV. SRI.N.MANOJ KUMAR R1-R2 BY ADV. SMT.JAYASREE MANOJ

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 05-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (RC).No. 138 of 2014 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1.: COPY OF THE PETITION IN RCP NO.14/11 ON THE FILE OF THE RENT CONTROL COURT, ALUVA.

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EXT.P2.: COPY OF THE COUNTER DATED 18/7/2013 FILED BY THE TENANT/RESPONDENT IN RCP NO.14/11 ON THE FILES OF THE RENT CONTROL COURT, ALUVA.

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EXT.P3.: COPY OF THE IA NO.777/2014 IN RCP NO.14/11 ON THE FILES OF THE RENT CONTROL COURT, ALUVA. DATED 3/6/2014.

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EXT.P4.: COPY OF THE ORDER DATED 20/6/2014 IN OP(RC) NO.73/2014.

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EXT.P5.: COPY OF THE IA NO.1052/2014 DATED 10/7/2014 IN RCP NO.14/11 ON THE FILES OF THE RENT CONTROL COURT, ALUVA.

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EXT.P6.: COPY OF THE COUNTER DATED 16/9/2014 FILED BY THE RESPONDENTS IN IA NO.1052/2014 IN RCP NO.14/11 ON THE FILE OF THE RENT CONTROL COURT, ALUVA.

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EXT.P7.: COPY OF ORDER DATED 7/10/2014 IN IA NO.1052/2014 IN RCP NO.14/11 ON THE FILE OF THE RENT CONTROL COURT, ALUVA.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

PA TO JUDGE.

THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.

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.................................................................... OP(RC) No.138 of 2014 .................................................................... Dated this the 5^th day of November, 2014.

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J U D G M E N T

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Thottathil B.Radhakrishnan, J.

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1.Heard learned counsel on both sides.

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2.This petition under Article 227 of the Constitution of India is filed by the tenant, who is facing an application for eviction under Act 2 of 1965. Landlords have filed rent control petition for eviction on the ground of additional accommodation for expansion of their business. The tenant is contesting the proceedings. While it is true that this Court had earlier passed an order fixing time limit for disposal of the rent control petition without issuing any prior notice in that proceedings to the tenant, we are of the view that the court below has erred in its jurisdiction in refusing to consider the application for issuance of a commission for local inspection, merely on the premise that it is part of dilatory tactics and the tenant cannot dictate as to how the landlord should adjust to his requirements. We see that in response to I.A. No.1052 of 2014,

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OP(RC) 138/14

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-2-

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which is an application for issuance of a commission, the landlords had filed objections pointing out also that in the event of the application being considered, points 1, 3, 4, 6, 9, 10 & 11 sought to be ascertained may be permitted, however that, the other issues do not arise for decision.

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3.We have given our anxious consideration to the contents of the application vis-a-vis the objections in the backdrop of the pleadings of the parties on either side. Ends of justice require that a commission for site inspection be issued on points noted above, since they have a bearing on the tenant's liability to discharge the burden of proof as to the non-availability of alternate accommodation in the area and different other materials which may be indicative as to whether an order of eviction under Section 11(8) of Act 2 of 1965 ought to be made or not. Having noted that there is failure of jurisdiction in that regard, we are of the view that this original petition is entitled to be allowed.

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OP(RC) 138/14

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-3-

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In the result, this original petition is allowed setting aside the impugned order and directing that the rent control court will issue consequential orders allowing I.A.No.1052 of 2014 to the extent of granting an order issuing a commission for local inspection to ascertain points stated at serial Nos.1, 3, 4, 6, 9, 10 & 11 in the interlocutory application. The commission shall be so issued that the inspection shall be completed within a period of ten days for which no prior notice need be given to the parties, except by delivering a memo to the counsel appearing at that end for the respective parties. Let the trial be thereupon expedited to conclude the proceedings within a period of three months from today. This original petition is ordered accordingly.

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(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

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(BABU MATHEW P. JOSEPH, JUDGE)

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S.Dharmaraj v. Jose v.Manjooran

Case brief

What is this about?

What did the court decide?

S.Dharmaraj v. Jose v.Manjooran

Case brief

What is this about?

What did the court decide?

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