Kshema Kokilam vs Baba on 6 April, 2022

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Kerala High Court

Kshema Kokilam vs Baba on 6 April, 2022

The petitioners have filed this Original Petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India seeking to issue a direction to the Principal Munsiff (Execution Court), Irinjalakuda to consider and pass orders on Exts.P3 and P4 applications before taking up Ext.P2 claim petition for consideration. The apprehension of the petitioners is that if all the said three applications are considered and disposed of together his right will be affected prejudicially.

2. R.C.P.No.10 of 2017 was filed by the 1st respondent-landlord seeking eviction of the 2nd respondent- tenant from the petition schedule building under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965.

3. That rent control petition was allowed and the 1st respondent filed E.P.No.898 of 2019 for getting delivery of 4 O.P.(RC) No.90 of 2022 the petition schedule building. The petitioners have filed Ext.P2 application in E.P.No.898 of 2019 setting up a claim that they have been in possession of the said premises from 2006 onwards with independent right of tenancy and therefore they are not liable to be ejected from the premises. They have also filed Exts.P3 and P4, which are for getting a commissioner appointed and allow them to examine witnesses enlisted in the witness list filed along with that application. The learned Counsel for the petitioners would contend that the Execution Court should not have heard the said two interlocutory applications along with the claim application and taken up for pronouncing orders. Since it did so, intervention of this Court is very much required.

4. The learned counsel appearing for the petitioners further would contend that petitioners' right and interest in the petition schedule premises are independent of the subject matter involved in R.C.P.No.10 of 2017, and therefore, the same is liable to be adjudicated in a proper way. The learned counsel aired the apprehension that in case of deciding those 5 O.P.(RC) No.90 of 2022 applications at one go, there is every likelihood of his interest being jeopardised. Therefore, a direction to the Execution Court to dispose of Exts.P3 and P4 applications first and to consider Ext.P2 claim application only thereafter is absolutely necessary.

5. In Ext.P2 application what the petitioners contended is that they have been a tenant in the petition schedule building since 12.08.2006. They further contend that they got the premises on a daily rent of Rs.150/- from the judgment debtor. It is the said right they have been pursuing in Ext.P2 claim application. Certainly, the independent right, if any, they have in the petition schedule premises has to be adjudicated, after affording them sufficient opportunity of being heard. When they admit that they obtained possession of the premises from the tenant- judgment debtor, who already suffered an order of eviction in R.C.P.No.10 of 2017, scope of their claim application appears to be bleak. That is a matter to be decided by the Execution Court as per the procedure known to law. Now, the 6 O.P.(RC) No.90 of 2022 apprehension of the petitioners is that if all those three applications are decided together, they would be put to prejudice. The Execution Court can decide the matter only after taking into every aspect of the matter. For the Execution Court has decided to consider all the three applications together, only, it cannot be said that the procedure has gone wrong. Only if it amounts to a manifest error, this Court in exercise of the powers under Article 227 of the Constitution of India can interfere.

6. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and 7 O.P.(RC) No.90 of 2022 prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

7. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

8. In Jai Singh v. Municipal Corporation of Delhi 8 O.P.(RC) No.90 of 2022 [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within 9 O.P.(RC) No.90 of 2022 the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

9. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by 10 O.P.(RC) No.90 of 2022 the Labour Court.

10. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

11. Viewed so, we are of the view that this is not a case where this Court is required to interfere with the procedure adopted by the Execution Court. The petitioners have regular remedy in law, even if the orders in those applications go against them. In the circumstances, we hold 11 O.P.(RC) No.90 of 2022 that this Original petition is liable to be dismissed and accordingly the same is dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 12 O.P.(RC) No.90 of 2022 APPENDIX OF OP (RC) 90/2022 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF R.C.P NO.10 OF 2017 DATED 05-06-2017 IN THE FILE OF RENT CONTROL COURT, IRINJALAKUDA.

Exhibit P-1A TRUE COPY OF EP NO.898/2019 IN R.C.P NO.10 OF 2017 DATED 05-06-2017.

Exhibit P-2 TRUE COPY OF CLAIM PETITION E.A.NO.265 OF 2020 DATED 18-03-2022.

Exhibit P-3              TRUE COPY OF E.A. 266 OF 2022,
                         COMMISSION APPLICATION DATED
                         18-03-2022.
Exhibit P-3A             TRUE COPY OF OBJECTION DATED
                         22-03-2022 IN E.A 266 OF 2022
Exhibit P-4              TRUE COPY OF E.A.319 OF 2022 DATED
                         31-03-2022.
Exhibit P-5              TRUE COPY OF OBJECTION DATED
                         22-03-2022 IN E.A NO.265 OF 2022

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