Kerala High Court
Easwar Gangaram Pattil vs Uduppi Madhava Mandiram Trust on 10 September, 2012
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934
OP (RC).No. 2848 of 2012 (O)
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IA.NO.3709/2012 IN RCP.151/2011 of III ADDL.M.C.EKM (RENT CONTROL)
PETITIONER:
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EASWAR GANGARAM PATTIL, AGED 63 YEARS
PROPRIETOR, POOJA JEWELLERY, JEWEL JUNCTION
M.G.ROAD, ERNAKULAM.
BY ADVS.SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
RESPONDENT:
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UDUPPI MADHAVA MANDIRAM TRUST
M.G.ROAD, ERNAKULAM, REPRESENTED BY MANAGING TRUSTEE
P.A.ANANDA RAO, RESIDING AT ANANDA BHAVAN
DIVAN'S ROAD, ERNAKULAM, KOCHI-16.
BY ADV. SRI.K.P.SREEKUMAR
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION
ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P.(R.C.) No.2848 of 2012R
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 : TRUE COPY OF IA NO.3709/2012, RCP NO.151/2011, RENT CONTROL
COURT, ERNAKULAM THE COMMISSION APPLICATION SUBMITTED BY THE RESPONDENT.
EXT.P2 : TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN EXT.P1,
DTD.16.7.2012.
EXT.P3 : TRUE COPY OF ORDER DTD.4.8.2012 IN IA NO.3709/2012 IN RCP
NO.151/2011, RENT CONTROL COURT, ERNAKULAM.
RESPONDENTS' EXHIBITS:
EXT.R1(a) : TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT ON
28.7.2011 SEEKING SURRENDER OF THE PREMISES.
EXT.R1(b): TRUE COPY OF THE REPLY SENT BY THE PETITIONER
EXT.R1(c) : TRUE COPY OF the RENT CONTROL PETITION R.C.P.NO.151 OF 2011
EXT.R1(d) : TRUE COPY OF the OBJECTION FILED BY THE PETITIONER
EXT.R1(e) : TRUE COPY OF THE REPLICATION FILED BY THE RESPONDENT.
EXT.R1(f) : TRUE COPY OF THE NOTICE PUBLISHED IN RESPECT OF SREE RAMA
NAVAMI FESTIVAL.
EXT.R1(g) : TRUE COPY OF THE NOTICE PUBLISHED REGARDING THE CULTURAL
MEET.
EXT.R1(h) : TRUE COPY OF THE NOTICE PUBLISHED REGARDING THE SPORTS MEET.
EXT.R1(i): TRUE COPY OF the NOTICE PUBLISHED IN RESPECT OF THE
CELEBRATION OF NAVARATHRI FESTIVAL.
EXT.R1(j) : TRUE COPY OF THE CERTIFICATE ISSUED FROM THE COCHIN
CORPORATION EVIDENCING THE GRANT OF EXEMPTION FROM BUILDING TAX BEING A
TEMPLE.
EXT.R1(k) : TRUE COPY OF the CERTIFICATE ISSUED BY THE CORPORATION OF
COCHIN REGARDING THE PAYMENT OF BUILDING TAX BY THE PETITIONER
// TRUE COPY //
C.R.
K.T.SANKARAN &
M.L.JOSEPH FRANCIS JJ.,
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O.P.(R.C.) No.2848 of 2012
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Dated this the 10th day of September, 2012
JUDGMENT
K.T. Sankaran J., The respondent filed Rent Control Petition No.151 of 2011 against the petitioner before the Rent Control Court, Ernakulam under Sections 11(7) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. The petition schedule room is occupied by the tenant and he is doing business in silver in that building. According to the landlord, a temple is situated in the ground floor of the building and the space occupied by the petition schedule room is required for the purpose mentioned in the Rent Control Petition.
2. Before filing the Rent Control Petition, a notice was issued by the landlord on 28.7.2011 [Ext.R1(a)]. In that notice, mention was made about the shrine of Sree Anjaneya housed in the building. In the reply notice sent by the tenant, there is no dispute regarding O.P.(R.C.) No.2848 of 2012 :2: the nature of the shrine in the place. However, in the counter filed by the tenant in the Rent Control Petition, the tenant stated thus:
"There is no public or private temple inside the premises. It is only a puja room in the ground floor. Some pujas are conducted, as the members are Brahmins. This is a practice usually done in all Brahmin business establishments, as well as their homes. There is no full-fledged temple activity nor any festival or special rituals which are common and mandatory in any public temple. It is not true that the members of other Hindu community also visits the "shrine". It is frequented only by a few members of the Madhwa community. There is no religious functions conducted in the ground floor."
3. According to the landlord, the above contention raised by tenant necessitated the filing of I.A. No.3709 of 2012 to appoint a Commissioner to note the following matters:
"(i) What is the deity worshipped at the ground floor of the petition schedule building.
(ii) Are regular poojas being conducted at this temple
(iii) On how many occasions in a day poojas and Naivedyams are offered to the deity.
(iv) What are the timings for offering worship to the devotees.
(v) Are there not poojaris employed by the petitioner trust for performing poojas.
O.P.(R.C.) No.2848 of 2012 :3:
(vi) Where is the articles for offering are kept or stored? Is it under lock and key?
(vii) Where is the kitchen where Naivedyams are prepared located?
(viii) Can this kitchen be put to use by the devotees or members of Madhawa Community in connection with their functions?
(ix) Are there any boards describing the time for worship and rates which the devotees are to pay to perform poojas and offerings to the deity?
(x) Are the rituals and religious functions exclusively being performed at the ground floor?
(xi) And such other matters requested to be noted by the Commissioner?"
4. The Court below allowed I.A No.3709 of 2012, by the order dated 4.8.2012 and an Advocate Commissioner was appointed.
5. The tenant submitted that he may be permitted to file a work memo before the Commissioner. He also stated that if the work memo is filed in Court in advance, there is every chance of evidence being manipulated by the landlord. The Court below held that such a contention cannot be permitted and the tenant cannot be O.P.(R.C.) No.2848 of 2012 :4: allowed to file a work memo before the Commissioner without filing the same in Court. The order passed by the Court below in I.A. No.3709 of 2012 is challenged by the tenant to the extent to which the Court below rejected the prayer made by the tenant to file a work memo before the Commissioner.
6. Heard Shri. Dinesh R.Shenoy, learned counsel appearing for the petitioner and Shri.K.P. Sreekumar, learned counsel appearing for the respondent.
7. A Commissioner appointed by the Court under Rule 9 of Order XXVI of the Code of Civil Procedure is expected to note the points mentioned in the Commission application. In doing so, it would not be sufficient always to say 'yes' or 'no' in respect of most of the points. Detailed narration of facts, which the Commissioner perceives at the spot, would be required in most of the cases. While doing so, the Commissioner would be justified in noting certain aspects which are relevant and which have not been requested to be noted by either or both the parties. The facts to be brought before the Court in the form of a Commission Report are intended for O.P.(R.C.) No.2848 of 2012 :5: enabling the Court to completely and finally adjudicate upon the disputes involved in the case. In many cases, work memo is being filed by the parties before the Commissioner at the time of inspection. Sometimes, even without a work memo, a party would be entitled to make a request to the Commissioner to note such ancillary points which are relevant. There is no rule which mandates the parties to file work memo before the Court. There is no provision in the Code of Civil Procedure or in the Civil Rules of Practice, Kerala with regard to filing of work memo when a Commissioner is appointed under Rule 9 of Order XXVI of Code of Civil Procedure. It is also not necessary for the Court to apply its mind to the aspects mentioned in the work memo and make specific instructions to the Commissioner, though the Court is not precluded from doing so. If the Court finds that the points mentioned in the work memo are prolix, irrelevant or unnecessary for resolving the disputes involved in the case, the Court can certainly issue directions to the Commissioner to confine to certain points alone. A rigid approach in the matter of insisting on the work memo to be O.P.(R.C.) No.2848 of 2012 :6: filed before Court would not be desirable. Valuable judicial time also can be saved if an adjudication on the relevancy or otherwise of the points mentioned in the work memo is avoided at the stage of issuing commission.
8. In the present case, the tenant submitted before Court that if the points to be noted by the Commissioner at the instance of the tenant are disclosed now, there are chances of manipulation or chances of stage managing by the landlord. Even without a work memo, the tenant can point out to the Commissioner certain aspects, which may be relevant for adjudication of the disputes. In the peculiar facts and circumstances of the case, we are of the view that the tenant can be permitted to file a work memo before the Commissioner at the time of inspection. By the order impugned, the Commissioner was permitted to make more than one inspection, in the nature of the disputes involved in the case. If the Commissioner notes certain aspects mentioned in the work memo filed by the tenant and the landlord wants to point out some other aspects, the landlord would be free to file a work memo to the O.P.(R.C.) No.2848 of 2012 :7: Commissioner. The Commissioner shall note the points mentioned in the work memo filed by the landlord as well as the tenant.
9. The Original Petition (R.C.) is disposed of in the manner indicated above; and to the extent mentioned therein, the order passed by the Court below is modified.
10. It is made clear that if the Commissioner makes a report taking into account the work memo filed by the tenant, or the landlord, as the case may be, the Rent Control Court would be free to decide the question whether any particular point mentioned therein is relevant for adjudication of the disputes involved in the case.
Sd/ K.T. SANKARAN, (JUDGE) Sd/-
M. L. JOSEPH FRANCIS, (JUDGE) dl/