Chandran v. G. Asha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937** ## **RCRev..No. 347 of 2015 ()** **-------------------------AGAINST THE JUDGMENT IN RCA 38/2012 of RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM DATED 11.9.2015** **AGAINST THE ORDER IN RCP 48/2010 of RENT CONTROL COURT, TRIVANDRUM DATED 22.10.2012** ## **REVISION PETITIONER/RESPONDENT:** **----------------------------------------------------------** **CHANDRAN, AGED 80, T.C 12/1125, THEKKUMMOODU JUNCTION, KUNNUKUZHY, THIRUVANANTHAPURAM.** **BY ADVS.SRI.T.N.MANOJ SRI.SUMAN CHAKRAVARTHY** **RESPONDENT/APPELLANT:** **------------------------------------------** **G.ASHA, AGED 52, D/O. LATE GOMATHY, T.C. 12/1125, THEKKUMMOODU JUNCTION KUNNUKUZHY, THIRUVANANTHAPURAM REPRESENTED BY HER POWER OF ATTORNEY HOLDER D.SARATHCHANDRAN S/O. DEVARAJAN, RESIDIING AT RAJAS HOUSE NO. 85 S.N. NAGAR, PETTAH, THIRUVANANTHAPURAM - 695 005.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **vpv** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= R.C.R.No.347 of 2015** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7[th] day of January, 2016** ## **ORDER** ## _**P.N.Ravindran, J.**_ The petitioner is the tenant in R.C.P.No.48 of 2010 on the file of the Rent Control Court, Thiruvananthapuram, a petition filed by the respondent/landlord for an order of eviction under section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as “the Act” for short. The landlord had in the petition for eviction averred that the tenant has kept the rent in arrears from June 2010 onwards and that she bonafide needs the petition schedule building to start a business for the purpose of earning additional income. The rent control petition was instituted by the landlord through her brother and power of attorney holder. The tenant opposed the petition for eviction by filing a counter statement wherein after denying and disputing the bonafide need put forward by the landlord, he claimed the protection of the second proviso to section 11 (3) of the Act. He however admitted that the rent is in arrears and expressed readiness to pay the same. 2. Before the rent control court, the power of attorney holder ## **R.C.R.No.347 of 2015** ## **-:2:-** and brother of the landlord who had instituted the rent control petition, was examined as PW1 and Exts.A1 to A3 were produced and marked. On application filed by the landlord, an Advocate Commissioner was appointed to inspect the petition schedule building. The Advocate Commissioner was examined as PW2 and the report submitted by her was marked as Ext.C1. The tenant examined himself as CPW1. No documentary evidence was however produced on his side. 3. The rent control court after considering the rival contentions held, relying on the decision of this court in **Ratheesh Kumar v. Jithendra Kumar** [2005 (2) KLT 669] that the evidence of the power of attorney holder, who was examined as PW1, is not sufficient to prove the bonfaide need put forward by the landlord. The rent control court also held that the tenant has not established his contention that he is entitled to the protection of the second proviso to section 11(3) of the Act. As regards the prayer for eviction on the ground that the tenant has kept the rent in arrears, the rent control court held that as the entire arrears of rent has been paid after the institution of the petition, the landlord is not entitled to an order of eviction under section 11(2)(b) of the Act. The rent control court accordingly dismissed the petition for eviction by order passed on 22.10.2012. The landlord carried the matter in appeal by filing R.C.A.No.38 of 2012 on ## **R.C.R.No.347 of 2015** ## **-:3:-** the file of the Rent Control Appellate Authority, Thiruvananthapuram. By judgment delivered on 11.9.2015, after considering the rival contentions, the rent control appellate authority allowed the appeal, set aside the order passed by the rent control court and remanded R.C.P.No.48 of 2010 to the rent control court for fresh trial and disposal. The tenant has, aggrieved thereby, filed this revision petition. 4. We heard Sri.T.N.Manoj, learned counsel appearing for the petitioner. Learned counsel appearing for the petitioner contended that the Apex Court had way back in the year 2005 held in **Janki Vashdeo** **v. Indusind Bank** [2005 (2) KLT 265 (SC)] that though a general power of attorney can appear, plead and act on behalf of a party, he cannot become a witness on behalf of the party, that relying on the said decision, a Division Bench of this court had in **Ratheesh Kumar** **v. Jithendra Kumar** (supra) held that the landlord in a petition for eviction filed under section 11(3) of the Act has to enter the box and testify in support of his claim for eviction, that the said view was reiterated by the Apex Court in **Joseph Mathew v. Jose Thomas** [2005 (4) KLT 764 (SC)], that notwithstanding the authoritative pronouncements by the Apex Court and this court, the landlord in the instant case did not enter the box and testify, that it was in view of the failure of the landlord to enter the box and testify in support of the ## **R.C.R.No.347 of 2015** ## **-:4:-** case set out by her in the petition for eviction that the rent control petition was dismissed and in such circumstances, the appellate authority erred in granting an opportunity to the landlord to fill up the lacuna in the evidence. Learned counsel for the petitioner also contended, relying on the decision of this court in **Krishnan v. Federal Bank Ltd.** [2014 (3) KLT SN 1], that a remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence, that in the instant case, the order of remand has been passed solely for the purpose of enabling the landlord to fill up the lacuna in the evidence and therefore, the impugned judgment is liable to be interfered with. 5. The rent control petition was instituted seeking an order of eviction on two grounds. One was that the tenant has kept the rent in arrears. The other was the landlord bonafide needs the petition schedule building to start a business of her own. The rent control petition was instituted by the brother and power of attorney holder of the landlord who was examined as PW1. When he was crossexamined, he had deposed that the landlord is not under any disability and that she has no difficulty to come and depose. The records disclose that the rent control petition stood posted for trial on 7.6.2012 pursuant to an order passed in that regard on 3.3.2012. On that day ## **R.C.R.No.347 of 2015** ## **-:5:-** the power of attorney holder of the landlord was examined as PW1 and Exts.A1 to A3 were marked and the case was adjourned for further evidence to 12.6.2012. On that day, the rent control court issued notice to the Advocate Commissioner appointed in the case to appear as a witness and the case was adjourned to 16.6.2012. On 16.6.2012, the Advocate Commissioner was examined as PW2 and the report submitted by her was marked as Ext.C1. Thereafter the tenant was examined as CPW1. In the light of the submission made by the learned counsel on both sides that they have no further evidence to adduce, the rent control petition was adjourned for hearing to 9.7.2012. The rent control petition was disposed of by order passed on 22.10.2012. As regards the contention that the tenant has kept the rent in arrears, the rent control court held that the tenant has after the rent control petition was filed, discharged the arrears of rent and therefore, the landlord is not entitled to an order of eviction. As regards the bonafide need, the rent control court held, relying on the decision of this court in **Ratheesh Kumar v. Jithendra Kumar** (supra), that the evidence of PW1 who is the general power of attorney holder of the landlord is not sufficient to prove the bonafide need of the landlord. The rent control petition was accordingly dismissed on that ground notwithstanding the finding entered by the ## **R.C.R.No.347 of 2015** ## **-:6:-** rent control court that the tenant has not proved the ingredients of both the limbs of the second proviso to section 11(3) of the Act. 6. On appeal, the appellate authority after considering the rival contentions, concurred with the rent control court that the oral evidence of PW1, who is the brother and power of attorney holder of the landlord, is not sufficient to prove the bonafide need of the landlord. But, considering the request made by the learned counsel appearing for the landlord, the appellate authority remanded the rent control petition to the rent control court for the purpose of enabling the landlord to enter the box and testify in support of her claim for eviction. Learned counsel appearing for the petitioner takes exception to such a course of action mainly on the ground that it amounts to reopening the evidence for the purpose of filling up the lacuna in the evidence. Learned counsel also placed reliance on the decision of this court in **Krishnan v. Federal Bank Ltd.** (supra) in support of the said contention. It was held in that decision that a remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence. The learned single Judge has held that from the materials available in that case, the lower appellate court was satisfied that the transaction in question was a result of fraud and forgery committed by the second respondent therein and that the first respondent therein ## **R.C.R.No.347 of 2015** ## **-:7:-** had no knowledge of the transaction. It was held that in such circumstances, there was no necessity for a remand as the one made by the appellate court especially when the first respondent before this court who had preferred the appeal before the lower appellate court had not complained that no sufficient opportunity was given to him to collect or adduce evidence. In the instant case, the rent control court non-suited the landlord on the technical ground that the brother and power of attorney holder of the landlord cannot prove the bonafide need put forward in the rent control petition. It was held that in the light of the binding decisions of the Apex Court and this court, the state of mind regarding the bonafide need has to be spoken to by the landlord herself. It was in such circumstances that the appellate authority held that though the finding entered by the rent control court that the evidence of PW1 cannot be relied on to find bonafide need, the landlord should be given an opportunity to enter the box and testify. We find nothing wrong in the view taken by the appellate authority in that regard. 7. It is also relevant in this context to note that in **Ratheesh Kumar v. Jithendra Kumar** (supra) this court had, even after entering a finding that the power of attorney was not competent to testify, given the landlord an opportunity to adduce evidence to ## **R.C.R.No.347 of 2015** ## **-:8:-** establish his bonafide need. In **Joseph Mathew v. Jose Thomas** (supra) the Apex Court had permitted the landlord to file a fresh petition for eviction on the same cause of action even after entering a finding in favour of the tenant that the landlord has failed to prove the bonafide need alleged in the rent control petition consequent on his failure to enter the box and testify. In the light of the aforesaid decisions, wherein this court as well as the Apex Court had, after entering a finding that the evidence in the case on hand is not enough to prove the bonafide need put forward, granted an opportunity to the landlord to enter the box and testify and even gone to the extent of permitting the landlord to withdraw the rent control petition and to file a fresh petition on the same cause of action, we find no reason or justification to interfere with the impugned order and hold that the landlord should not be given an opportunity to speak in support of the case set out by her in the rent control petition. In our opinion, no prejudice whatsoever will be caused to the tenant by such a course of action. The tenant will certainly get an opportunity to cross-examine the landlord. Since the appellate authority has remanded the rent control petition to the lower court for fresh disposal in accordance with law, he will also get an opportunity to adduce further evidence to prove his contention that he is entitled to the protection of second ## **R.C.R.No.347 of 2015** ## **-:9:-** proviso to section 11(3) of the Act. As the order of remand in the instant case is an open remand and it is not an order of remand for the limited purpose of enabling the landlord to enter the box and testify, we find no reason or justification to hold that the rent control appellate authority erred in passing an order of remand. The instant revision petition is in our opinion without any merit. It fails and is accordingly dismissed. The rent control court shall, having regard to the fact that the petition for eviction was instituted in the year 2010, try and dispose of the rent control petition afresh before the closure of the civil courts for the summer vacation of 2016. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. To Judge **vpv**