IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36294 of 2009(F)
1. SUGUNAN, S/O.ALAYIL GANGADHARAN,
... Petitioner
Vs
1. PRADEEP,
... Respondent
For Petitioner :SRI.K.S.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :16/12/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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W.P.(C).No. 36294 OF 2009
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Dated this the 16th day of December, 2009
JUDGMENT
Pius C.Kuriakose, J.
Under challenge in this writ petition under Article 227 filed
by the tenant is Ext.P5 order passed by the Rent Control Court
dismissing an application for issuance of commission for
measurement and identification of an item of immovable
property allegedly belonging to the tenant. The commission
application was filed by the tenant for substantiating his defence
to the ground for eviction under Section 11 (4) (iii). The
allegation of the landlord was that the tenant is in possession of
other buildings in the same town reasonably sufficient for the
tenant’s requirements. The commissioner deputed by the court
at the instance of the landlord reported that the petitioner is
residing in the building having door number 6/241 and that in
front of that building a driving school in the name and style of
“Driving School, Association Kodungallur” is functioning.
WPC.No.36294/2009 2
2. The contention of the petitioner, it appears is that on the
land owned by him no building exists or that he is not the owner
of any building. This was why he applied unsuccessfully for
issuance of a commission. The learned Rent Control Court has
taken the view that, in the light of the commission report it is
for the tenant to substantiate the objection filed by him to the
report during the trial of the RCP which is yet to commence. The
ground, which is mainly urged in this writ petition, is that the
court below is not correct in observing that the tenant has
admitted that the building reported by the commissioner belongs
to him. According to the tenant, if measurement of the property
is conducted on the basis of the title document, it will be
revealed that the building is outside the property covered by the
title document.
3. The supervisory jurisdiction of this court under Article
227 is a visitorial jurisdiction which will be invoked only very
sparingly. Having guaged Ext.P5 by the standards applicable for
exercise of the supervisory jurisdiction, we are of the view that
Ext.P5 is not vitiated to the extent of justifying correction under
the supervisory jurisdiction. It cannot be stated that Ext.P5
order is per se illegal in the sense that it violates clear provisions
WPC.No.36294/2009 3
of law either statutory or settled. It cannot be stated that Ext.P5
results in injustice or failure of justice or causes prejudice to any
of the parties. It also cannot be stated that Ext.P5 is an order
which can be branded as a perverse order in the sense that such
an order will be authored by any one with reasonable training
and learning in law.
4. Coming to the merits also, we are of the view that for
substantiating the defence to the eviction ground under Section
11 (4) (iii), it is not necessary that the petitioner proves before
the Rent Control Court that he does not have ownership over the
building reported by the advocate commissioner. The ground
under Section 11 (4) (iii) is not concerned with ownership over
the building. It is concerned only the possession. If it is the
case of the petitioner that he does not have possession of the
building reported by the commissioner, it is always open to him
to prove the same by producing documents like copies of the
Property Tax Assessment Registers pertaining to the building or
other acceptable evidence for proving his case regarding
possession.
WPC.No.36294/2009 4
Challenge against Ext.P5 necessarily has to fail.
Accordingly, the writ petition will stand dismissed.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
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