IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (RC).No. 187 of 2010(O)
1. M/S.OLIVE CAPITAL AND SERVICES PVT.LTD.,
... Petitioner
Vs
1. MRS.ODETTE FRANCES PLINTO @ ODETTE,
... Respondent
2. MRS.FATIMA ROAZARIO @ NORAMA, AGED 58,
3. MRS.DURY MARGARET D'CRUZE,
4. MRS.NOVELLA DENETTO @ LOVEY,
For Petitioner :SRI.K.R.MOHANAN
For Respondent :SRI.M.S.NARAYANAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :06/10/2010
O R D E R
PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ.
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O.P.(R.C).No. 187 OF 2010
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Dated this the 6th day of October, 2010
JUDGMENT
Pius C.Kuriakose, J.
Under challenge in this original petition under Article 227 is
Ext.P5 order passed by the Rent Control Court, Ernakulam on
Ext.P3 application. The main petition before the Rent Control
Court is a petition for fixation of fair rent filed by the
respondents/landlords. The petition schedule building is the
second floor of a commercial building situated on the western
side of M.G.Road opposite to Seemati Textiles. The contract rent
is Rs.6,000/- per month. The prayer of the landlords in the
application is that the fair rent be fixed at the rate of Rs.20 per
sq. feet for the building which has an extent of 1750 sq.feet.
Ext.P3 is the copy of the commission application filed by the
landlords. Point Nos. 1 to 4 sought for to be noted by the
commissioner, in our view, are relevant points and the petitioner
tenant cannot have any legitimate grievance in the learned Rent
Control Court issuing a commission for submitting report on
O.P.(R.C).No.187/2010 2
those points. Point Nos. 5 to 7 are the following;
5. What is the expected rate of rent from
similar building of petition schedule let out ?
6. What is the present rent of the ground floor
of the building where the petition schedule premises
situated ? What was the same in 2008 ?
7. What is the present rent of the nearly
buildings let out for rent ?
2. Sri.K.R.Mohanan, learned counsel for the petitioner,
submitted that the above quoted three points are beyond the
scope of inspection and report by a local inspection
commissioner appointed under Order 26 Rule 9. According to
him, the question as to what is the rent that can be expected
from a similar building is a question to be answered by the Rent
Control Court on the basis of evidence that is adduced by the
parties. As regards the point No.6, Mr.Mohanan submitted that,
the said question is capable of being proved by production of
documentary evidence or oral evidence to be adduced by either
the owner or the tenants of that building. As regards the point
No.7, the learned counsel submitted that the advocate
commissioner is not expected to go around the city and collect
oral evidence from the occupants of nearby buildings. If the
O.P.(R.C).No.187/2010 3
landlord has a case that nearby buildings are let out for higher
rent, it is for the landlord to adduce oral and documentary
evidence to prove the same. Mr.Mohanan submitted that
Ext.P5, to the extent it allows the commissioner to report on
points 5, 6 & 7, is vitiated and warrants correction under the
supervisory jurisdiction of this Court.
3. Sri.M.S.Narayanan, who has taken notice on behalf of the
respondents/landlords, would resist the submissions of
Sri.Mohanan. According to Mr.Narayanan, Ext.P5 is an innocuous
order under which the Rent Control Court has issued a
commission for the purpose of collecting relevant evidence.
Report on all the points mentioned in Ext.P3 will enable the
Court to take a correct decision in the matter. There is no
warrant for invocation of the supervisory jurisdiction of this
Court under Article 227 of the Constitution.
4. Having anxiously considered the rival submissions
addressed at the Bar, we notice merit in the submissions of
Mr.Mohanan to the extent they pertain to point Nos.5,6 & 7 in
Ext.P3. According to us, the learned Rent Control Court, by
issuing commission under Ext.P5 to report on points 5,6 & 7 in
O.P.(R.C).No.187/2010 4
Ext.P3, has delegated its judicial function to the Advocate
commissioner. To that extent, Ext.P5 is vitiated.
Hence, allowing the original petition in part, we set aside
Ext.P5 to the limited extent of deleting the directions given to
the advocate commissioner already appointed to inspect and
report on point Nos.5, 6 & 7 mentioned in Ext.P3.
PIUS C.KURIAKOSE,JUDGE
P.S.GOPINATHAN, JUDGE
dpk
Issue copy today itself.