CHETHIL THAREMMAL RASHEEDA v. PEEDIKAYILAKATH MUHAMMAD

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY,THE 3[RD] DAY OF NOVEMBER 2021/12TH KARTHIKA,1943 O.P.(RC) NO. 83 OF 2021** **AGAINST THE ORDER DATED 10.08.2021 IN I.A.NO.2 OF 2021 IN R.C.P.NO.4 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF COURT), PAYYOLI** ## **PETITIONER:** ## **CHETHIL THAREMMAL RASHEEDA** **AGED 42 YEARS W/O.MUHAMMAD, IRINGAL AMSOM DESOM, KOTTAKKAL (PO), KOYILANDY TALUK, KOZHIKODE (DIST.) - 673 521.** **BY ADV K.DEEPA (PAYYANUR)** ## **RESPONDENT/S:** ## **PEEDIKAYILAKATH MUHAMMAD** **AGED 58 YEARS** **S/O.ABOOBACKER HAJI, 'MUSTHALEEF', IRINGAL AMSOM DESOM, KOTTAKKAL (PO), KOYILANDY TALUK, KOZHIKODE (DIST.) - 673 521.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **THIS O.P.(RENT CONTROL) HAVING COME UP FOR FINAL** **HEARING ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(RC) No. 83 of 2021 ## **C.R.** ## **JUDGMENT** ## Ajithkumar, J. The respondent filed Rent Control Petition No.4 of 2017 before the Rent Control Court (Munsiff Court), Payyoli seeking eviction of the petitioner under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner filed Interlocutory Application No.2 of 2021 in the R.C.P. for appointment of a commission. The respondent resisted it by filing a counter affidavit. The Rent Control Court dismissed the application as per Ext.P5 order dated 10.08.2021. The petitioner challenges legality of Ext.P5 order in this original petition filed under Article 227 of the Constitution of India. 2. Heard the learned counsel appearing for the petitioner and the respondent. 3. The learned counsel for the petitioner submitted that the respondent gave evidence as PW1 in the R.C.P and during cross examination he undertook to take out a 3 ## O.P.(RC) No. 83 of 2021 commission, but later shied away and hence, the petitioner was compelled to file I.A.No.2 of 2021. The learned counsel would contend that the claim for eviction under Section 11(3) of the Act was resisted by the petitioner on the ground inter alia that the respondent has been in possession of several other vacant rooms. PW1 admitted that he owns 14 rooms. However he took a stand that those rooms were let out to others, which according to the petitioner is untrue. It was in the said circumstances the petitioner was compelled to take out a commission, but the Rent Control Court illegally disallowed the application, I.A.No.2 of 2021. 4. Per contra, the learned counsel appearing for the respondent would contend that a question was put dubiously to PW1 asking his willingness to take out a commission and sticking to the inadvertent answer given by him the petitioner wanted to take out a commission, which was an attempt to delay and obstruct trial of the case. 5. **Chakko P. Mathew v. Kuttappan [2002 KHC 583] and Vayalilakath Abdul Nazar v. Paruthuthodi** 4 O.P.(RC) No. 83 of 2021 **Mammad Koya [2011 (2) KLT 914]** are the authorities sufficient to hold that the burden to prove the first proviso to section 11(3) of the Act is on the tenant. In **Ashraf v. Shamnas [2020 KHC 3391]** it was further held that only if it is established by the tenant that there are other suitable buildings in the possession of the landlord for the need projected, the burden shifts to the landlord to prove special reasons. 6. Therefore, it is the burden of the petitioner-tenant to prove availability of vacant rooms with the respondent and only on such proof, the respondent-landlord has the liability to show special reasons to get an order of eviction. In that view of the matter, it was only prudent for the petitioner to take out a commission sufficiently early, if she wanted to prove the fact of availability of vacant rooms with the respondent. All the same, had there been vacant rooms available in the possession of the respondent, it would be a reasonable expectation of the petitioner to bring that fact in evidence through cross examination of the respondent. Having failed, 5 O.P.(RC) No. 83 of 2021 the petitioner filed the application for appointing a commission for local inspection. In a normal situation, a commission application to collect evidence after commencement of trial is not justified. In this case we notice that during crossexamination, PW1 stated his preparedness to take out a commission for the specific purpose of showing that no vacant room is available with him. It was on 02.08.2021. Having failed only the petitioner filed I.A.No.2 of 2021 on 08.08.2021. After considering the above facts and circumstances, we are of the view that the Rent Control Court ought to have allowed the application, which ultimately would help the court to take a just decision in the case. 7. The second query posed in the application for appointment of commission is, 'to examine the rent agreements with respect to the rooms let out by the respondent and make a report'. We are afraid, a commissioner deputed for local inspection can be asked to make such a report. The application, I.A.No.2 of 2021 was filed under Order XXVI, Rule 9 of the Code of Civil Procedure, 6 O.P.(RC) No. 83 of 2021 1908 read with Section 23 of the Act. A commission so appointed has to ascertain and report to the court the facts he noticed on his local inspection and that are required or proper for elucidating the matter in dispute. Position may be different if appointment is under Rule 11 or 13 of Order XXVI of the Code. 8. The report of a commissioner shall form part of the record and be in evidence in the suit by virtue of the provisions of Order XXVI, Rule 10(2) of the Code. This is a rule of evidence as is seen in many statutes other than the Indian Evidence Act, 1872. Even though the said provision enables the court to receive a report of a commission in evidence without examination of the commissioner in court, that does not enable the court to receive in evidence inadmissible items contained in the report. What is exempted is oral examination of the commissioner, who is an officer of the court, to prove the facts that are perceived by him during the inspection and stated in his report. To that extent Order XXVI, Rule 10(2) of the Code is an exception to the rule 7 ## O.P.(RC) No. 83 of 2021 contained in section 60 of the Evidence Act that oral evidence must always be direct. 9. What the commissioner has to report with reference to the question No.2 in I.A.No.2 of 2021 mentioned above is the oral account of the contents of documents; namely, rent agreements. Section 63 of the Evidence Act defines secondary evidence. Fifth item in Section 63 is, ‘oral accounts of the contents of a document given by some person who has himself seen it’. Therefore, if oral account of the contents of rent agreements is included in the report of the commissioner, that is only secondary evidence and, naturally, the bar for admission to secondary evidence is attracted. Section 64 of the Evidence Act is based on the 'best evidence' rule, which is fundamental. Section 64 mandates that documents must be proved by primary evidence except in the cases where the secondary evidence is permitted. If the primary evidence is not available only, one is entitled to let in secondary evidence. In other words, on establishing the foundation for entitling production of secondary evidence as 8 O.P.(RC) No. 83 of 2021 enumerated in Section 65 alone, one can adduce secondary evidence to prove a fact. 10. It may be noted that when the petitioner demands the commissioner to verify the lease agreements, it presupposes existence of such documents. If so, after complying with the provisions of Section 65(a) of the Evidence Act, only secondary evidence can be allowed to be let in. Section 65(a) reads thus:- “65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:— (a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;” There is absolutely no such situation in this case and hence the petitioner cannot go for secondary evidence in relation to the lease agreements. 9 O.P.(RC) No. 83 of 2021 11. It may further be noted that Section 91 of the Evidence Act insists that if a matter reduced to the form of a document, no evidence can be given in proof of the terms of such matter, except the document itself or secondary evidence of its contents, in case in which the secondary evidence is admissible under the provisions contained in the Act. Going by the said provision also, the petitioner has no right to adduce secondary evidence, that is to say, oral accounts of the contents of lease agreements in question. 12. Upshot of the above discussion is that Order XXVI, Rule 9 of the Code does not contemplate appointment of a commission for examination of a document and report to the court about its contents. Hence, we hold that the second question posed in Ext.P3 commission application is not liable to be allowed. The other matters sought to be ascertained in the application are permissible. 13. Accordingly, we allow this Original Petition. On setting aside Ext.P5 order dated 10.08.2021, I.A.No.2 of 2021 in R.C.P.No.4 of 2017 on the file of the Rent Control Court, 10 O.P.(RC) No. 83 of 2021 Payyoli is allowed, except with respect to the second query in it. The Rent Control Court will take the follow up. 14. The trial of R.C.P.No.4 of 2017 is almost complete. Being an old case, the Rent Control Court is directed to finally dispose of the same, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(RC) No. 83 of 2021 ## **APPENDIX OF OP (RC) 83/2021** ## **PETITIONER EXHIBITS** **Exhibit P1** **TRUE COPY OF THE ORIGINAL PETITION FILED BEFORE THE RENT CONTROL COURT, PAYYOLI AS R.C.P.NO.04 OF 2017 BY THE PETITIONER/RESPONDENT HEREIN.** **Exhibit P2** **TRUE COPY OF THE COUNTER STATEMENT FILED IN R.C.P.NO.04 OF 2017 BY THE RESPONDENT/PETITIONER HEREIN.** **Exhibit P3** **TRUE COPY OF THE COMMISSION PETITION DATED 08/08/2021 FILED AS I.A.NO.02 OF 2021 IN R.C.P.NO.04 OF 2017 BY THE PETITIONER HEREIN TO APPOINT AN ADVOCATE COMMISSIONER.** **Exhibit P4** **TRUE COPY OF THE COUNTER IN I.A.NO.02 OF 2021 IN R.C.P.NO.04 OF 2017 BY THE RESPONDENT HEREIN.** **Exhibit P5** **TRUE COPY OF THE ORDER OF THE RENT CONTROL COURT IN I.A.NO.02 OF 2021 IN R.C.P.NO.04 OF 2017.**