IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6296 of 2010(J)
1. M/S.MEDICAL AND COMMUNITY PHARMACY
... Petitioner
Vs
1. M.C.VAREED, AGED 51,S/O.CHERU,H.NO.
... Respondent
For Petitioner :SMT.AYSHA YOUSEFF
For Respondent :SRI.BABU CHERUKARA
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :23/03/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P.(C).No. 6296 of 2010 J
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Dated this the 23rd day of March, 2010
JUDGMENT
Joseph Francis, J.
This Writ Petition under Article 227 of the Constitution of
India is filed by the petitioner in I.A. No. 2960 of 1999 in R.C.A.
No. 70 of 2007 on the file of the Rent Control Appellate
Authority, Ernakulam with the following prayers.
“(a) to call for the records leading to Ext.P7
order passed by the 1st Additional District Court
Ernakulam and to quash the same by the issuance of a
writ of certiorari.
(b) to issue any other appropriate writ order or
direction as deem fit and proper in the facts and
circumstances of the case.”
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2. The case of the petitioner briefly is as follows. The
petitioner is the appellant in R.C.A. No. 70 of 2007 on the file of the
Rent Control Appellate Authority, Ernakulam. The respondent herein
is the respondent in that case. The respondent landlord preferred a
Rent Control Petition as R.C.P. No. 41 of 2006 under Section 11(3)
and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. The
Rent Control Court allowed eviction only on the ground of Section 11
(8). Aggrieved by the eviction order, the petitioner preferred an
appeal as R.C.A. No. 70 of 2007 before the Rent Control Appellate
Authority, Ernakulam.
3. Since the Rent control Court allowed eviction only under
Section 11(8) of the Act, the petitioner has filed Ext.P5 amendment
application in R.C.A. No. 70 of 2007 to incorporate additional grounds
regarding the question of comparative hardship in the event of eviction.
But the court below, in a mechanical manner, dismissed the
amendment application vide order dated 2.2.2010 on the reason that the
W.P.(C).No. 6296 of 2010
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petitioner has not pleaded the said contention in the trial stage, despite
the fact that the objection filed by the petitioner herein in R.C. P. No.
41 of 2006 reveals that the petitioner has a consistent case that the
hardship which may be caused to the petitioner by granting eviction
will outweigh the advantage to the respondent landlord. Ext.P7 is the
copy of the order in Ext.P5, I.A.No. 2960 of 1999 in R.C.A.No. 70 of
2007. Challenging that order the petitioner in that I.A. filed this Writ
Petition.
4. Heard learned senior counsel for the petitioner and the learned
counsel for the respondent.
5. Learned counsel for the petitioner submitted that Ext.P7 order
is patently illegal against the facts, circumstances and probabilities of
the case. The learned counsel for the petitioner further submitted that
the Appellate Court failed to consider the judicial principles governing
an amendment of proceedings as envisaged by Section 23(1)(j) of the
Kerala Buildings (Lease and Rent Control) Act and Order 6 Rule 17
W.P.(C).No. 6296 of 2010
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C.P.C. and as such the Court has committed a jurisdictional error,
which warrants interference of this Court. The learned counsel further
submitted that the Appellate Court went wrong in holding that the
petitioner has not taken the contention regarding comparative hardship
during the trial stage. Learned counsel for the petitioner further
contended that the Appellate Court committed very serious mistake in
dismissing Ext.P5 amendment petition, which has been filed to
incorporate additional grounds omitted to be included in the appeal
memorandum. Learned counsel for the respondent supported Ext.P7
order.
6. Section 23(1)(j) of the Kerala Buildings (Lease and Rent
Control) Act provides that the Appellate Authority has power to
amend any defect or error in orders or proceedings. Therefore, the
Appellate Authority has power to allow amendment of the appeal
memorandum. The pleadings includes memorandum of appeal also. In
Ext.P5 amendment petition, the main amendment sought for is that the
W.P.(C).No. 6296 of 2010
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Rent Control Court failed to consider the comparative advantage,
which the landlord may gain out of the order of eviction and the
hardship which the tenant may have to suffer because of the order of
eviction. In the event of the bonafides of the requirement under
Section 11(8) becoming established, a finding will have to be entered
regarding the first proviso to Section 11(10) of the Kerala Buildings
(Lease and Rent Control) Act. On going through Ext.P4
Memorandum of Appeal, it is seen that the grounds mentioned in the
amendment petition are there in the appeal memorandum itself in
substance.
7. The powers under Article 227 of the Constitution does not
vest the High Court with unlimited prerogative to correct all species
of hardships or wrong decisions made within the limits of the
jurisdiction of the Court or the Tribunal. Since there is no illegality
in Ext.P7 order, we find no reason to interfere with that order.
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9. Accordingly, this Writ Petition is dismissed as it is without
any merit.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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