Chathoth Koyambath Ramesh v. E.V. Muhammed Aslam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** **RCRev.No.60 of 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 111/2013 OF THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 13-07-2018 AGAINST THE ORDER/JUDGMENT IN RCP 223/2012 of PINCIPAL MUNSIFF COURT, KANNUR DATED 09-04-2013** ## **REVISION PETITIONER/S:** **CHATHOTH KOYAMBRATH RAMESH, AGED 60 YEARS, S/O.ANANDAN, BUILDING NO.CB-40/812(35/851), HAJAEE ROAD, KANNUR DISTRICT, PIN - 670 001, REPRESENTED BY POA HOLDER SASEENDRAN, S/O.ANANDAN, AGED 62 YEARS, 320, CHAITHANAYA, KANUR P.O., KANNUR DISTRICT, PIN - 670 001.** **BY ADVS. SRI.P.M.UNNI NAMBOODIRI SRI.HARIDAS THAIKKANDY** ## **RESPONDENT/S:** **E.V.MUHAMMED ASLAM, AGED 44 YEARS, S/O.ABDHUL HAMEED, SAFA MANZIL, PAREKUNDU, P.O.PODUVACHERY, KANNUR - 670 621.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R.No.60/2019 2 ## **O R D E R** ## **K.Harilal, J.** Revision petitioner is a tenant against whom the order of eviction has been passed by the Rent Control Court under Section 11(3) of the Building (Lease and Rent Control) Act,1965 in R.C.P.No.223 of 2012. The said order has been affirmed by the Rent Control Appellate Authority, Thalassery in R.C.A.No.111 of 2013. Thus the legality and propriety of the concurrent findings, whereby the courts below have passed and affirmed order of eviction under Section 11(3) of the Act, have come up in this revision. Parties are referred to as in the R.C.P. 2. According to the petitioner he is a gulf returnee and he intends to start a distribution business of stationary items in the petition schedule building, as he has no avocation or any kind of source of income to eke out his livelihood. He has no other vacant buildings of his own in his possession to start the proposed business. On the other hand, several other vacant buildings are available in the locality to shift the respondent's business from the tenanted premises. R.C.R.No.60/2019 3 So also the respondent is not depending on the income from the business in the tenanted premises. With the aforesaid averments petitioner prayed for an order of eviction under Section 11(3) of the Act. 3. Respondent resisted the said contention contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. The petitioner is having real estate business and he has no necessity or intention to start any business as stated in the petition. The petitioner has several other buildings in his possession to start the proposed business. But, for the respondent, no other vacant buildings are available in the locality to shift his business from the tenanted premises. He is mainly depending upon income from the business in the tenanted premises. Thus, he is entitled to get protection under the second proviso to Section 11(3) of the Act. 4. Both parties adduced evidence on the aforesaid pleadings. After trial the Rent Control Court allowed the petition on a finding that the need projected by the petitioner is _bona fide_ and the respondent is not entitled to get protection under second proviso and the R.C.R.No.60/2019 4 claim for eviction is not hit by first proviso to Section 11(3) of the Act. The aforesaid findings stands affirmed by the Appellate Authority also. 5. Heard the learned counsel for the petitioner. The scope and extent of interference with the concurrent findings of the courts below are confined to legality propriety and regularity of the findings of the courts below only and this Court is not allowed to re-appreciate the entire evidence on record and arrive at a different finding unless the findings of the court below are perverse or vitiated by non consideration of material evidence. 6. Bearing the aforesaid legal position in mind, we have considered the argument advanced by the learned counsel for the petitioner. The learned counsel for the petitioner contended that the Appellate Authority went wrong by denying an opportunity to adduce further evidence. The respondent has filed an application under order 41 Rule 27 of the Code of Civil Procedure for admitting a document in appeal, which would show that the petitioner has other vacant buildings in his possession. But the Appellate Authority without R.C.R.No.60/2019 5 considering the evidentiary value of the document, straight away rejected the same on an erroneous finding that said document is not admissible in evidence under Order 41 Rule 27 of the CPC. 7. In view of the argument, the sole point that arises for consideration is whether there is any illegality or impropriety in the findings, whereby the Appellate Authority rejected the application filed by the respondent under Order 41 Rule 27 of the CPC. In the counter statement respondent has vaguely stated that the petitioner has other buildings of his own in his possession to start the proposed business and those buildings are available in the vicinity of the petition schedule building. During the course of trial no evidence, other than oral testimony of RW1, was adduced to substantiate the said contention. It is needless to say, the burden of proof under the first proviso to Section 11(3) of the Act is on the tenant. In the absence of evidence to prove the availability of other buildings, in the possession of the petitioner, the Rent Control Court rejected the said contention raised by the respondent and found that the claim for eviction R.C.R.No.60/2019 6 is not barred by first proviso to Section 11(3) of the Act. 8. In appeal, the respondent has produced the copy of the Assessment Register of the buildings obtained from the concerned Municipality and produced the same with a petition under Order 41 Rule 27 to accept the said evidence. It is trite law that the scope and extent of admission of further evidence, in an appeal, are confined to grounds specifically enumerated under Order 41 Rule 27 of the CPC only. The parties can not adduce evidence in appeal as of right. 9. It is incumbent upon the parties to establish that the trial court refused to admit in evidence or notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not be produced by him, after the exercise of due diligence, when the decree appealed against was passed. The respondent has no case that the copy of the building assessment register was produced, but the court below refused to accept it. Similarly, the said document is not one which could not have been produced before the Rent Control Court, despite the exercise of due R.C.R.No.60/2019 7 diligence. Certainly, during the course of trial the respondent could have obtained the copy of the said Assessment Register and produced before the Rent Control Court. In the above view, we find that the Appellate Authority is justified in rejecting the said application filed under Order 41 Rule 27 of CPC as the reasons stated in the petition was not acceptable under Order 41 Rule 27 of the CPC. 10. That apart, we further find that the entries in the Building Tax Assessment Register kept in Local Self Government are not conclusive evidence to prove the vacancy position of the rented buildings in the Panchayath or Municipality as the case may be. The local authorities make entry in the said register only if the landlord wands to do so. It was so held by this Court in **Varghese Eapen v. Varghese [2001(2) KLT 263]** Therefore, even if the Building Tax Assessment Register was accepted in evidence, that could not have been taken as a relevant evidence to prove the vacancy position of the buildings in the Municipality. 11. More over, even though the said document was not accepted in evidence the Appellate Authority has gone R.C.R.No.60/2019 8 through the document and found that entries in the document also would show that all the rooms owned by the petitioner are occupied by various tenants. In the above analysis, we do not find any kind of illegality or impropriety in the reasoning whereby Appellate Authority rejected application filed by the respondent under Order 41 Rule 27 of the CPC. No other point has been raised in this revision. 12. Hence, this revision fails. 13. The learned counsel for the petitioner prayed for one year time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given six months time from today to vacate the tenanted premises on the following conditions: _(i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months, from today._ R.C.R.No.60/2019 9 _(ii)The respondent/tenant shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default._ _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order._ The rent control revision is dismissed accordingly. ## **Sd/-** **K.HARILAL JUDGE Sd/-** **N.NAGARESH** DG **JUDGE**