Joseph Baby v. K.G. Thomas and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 O.P.(RC) NO. 135 OF 2022** **AGAINST THE ORDER DATED 23.06.2022 IN I.A.NOS.6 AND 7 OF 2022 IN R.C.A.NO.1 OF 2022 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), PATHANAMTHITTA** **PETITIONER:** **JOSEPH BABY, AGED 60 YEARS, VEERAPALLIL HOUSE, PANNIVIZHA, ADOOR MURI, ADOOR VILLAGE, ADOOR TALUK, PIN – 691523.** **BY ADVS.** **ALEX GEORGE (CHAMAPPARAYIL) TONY GEORGE KANNANTHANAM THOMAS GEORGE** ## **RESPONDENTS:** - **1 K.G. THOMAS AGED 84 YEARS, S/O. LATE GEEVARGHESE, KANJIRAKKATTU PUTHENVEEDU, PANNIVIZHA, ADOOR.P.O., ADOOR VILALGE & TALUK, PIN – 691523.** - **2 ALICE THOMAS AGED 74 YEARS, W/O. K.G.THOMAS, KANIRAKKATTU PUTHENVEEDU, PANNIVIZHA, ADOOR.P.O., ADOOR VILLAGE & TALUK, PIN – 691523.** 2 O.P.(RC) No.135 of 2022 **3 JAYA JOSE, AGED 49 YEARS, W/O. JOSE VARGHESE, KANJIRAKKATTU PUTHENVEEDU, PANNIVIZHA, ADOOR.P.O., ADOOR VILLAGE & TALUK, PIN – 691523.** **BY ADVS. MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH R.RAJESH (VARKALA) SAMEER M NAIR HARSHA SUSAN SAM GEETHU KRISHNAN** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 19.07.2022, THE COURT ON 01.08.2022 DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.135 of 2022 ## **JUDGMENT** ## Ajithkumar, J. Aggrieved by the order of the Rent Control Appellate Authority (District Judge), Pathanamthitta, in I.A.No.6 and 7 of 2022 in R.C.A.No.1 of 2022, the petitioner-tenant has filed this Original Petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. As per the impugned order dated 23.06.2022, the Appellate Authority dismissed both the I.As., which were filed seeking appointment of an Advocate Commissioner and permission to adduce further evidence. 2. When this matter came up for admission on 12.07.2022, notice was ordered to be served on the respondents. The respondents entered appearance through their learned counsel. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 4. R.C.P.No.2 of 2019 was filed by the respondents 4 O.P.(RC) No.135 of 2022 seeking eviction of the petitioner under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondents claimed vacant possession of the petition schedule shop room for the 3[rd] respondent to start a computer training and job centre. Eviction under Section 11(4)(ii) of the Act was sought on the ground that the petitioner-tenant had annexed the common veranda with the petition schedule room. The petitioner refuted the said claims and allegations. It was contended that five vacant rooms are available in the same building, which is a three-storied one and those are suitable and sufficient for the need projected by the respondents. The allegation that the veranda was annexed with the petition schedule shop room has been denied as well. The Rent Control Court after holding trial, ordered as per Ext.P3 dated 13.12.2021 eviction under Section 11(3) of the Act. 5. The petitioner has filed an appeal under Section 18(1)(b) of the Act before the Appellate Authority, R.C.A.No.1 of 2022. Ext.P4 is a copy of the appeal memorandum. The 5 O.P.(RC) No.135 of 2022 petitioner has filed Ext.P5, I.A.No.6 of 2022 in the appeal under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908, stating that he was not able to take out a Commission in the R.C.P. since he was not keeping well. Due to that reason, necessary evidence could not be brought on record. Further, it is contended that the tenant who was conducting Olivia tailoring shop in a hall in the building, has vacated. Thus, now five rooms and that hall are lying vacant. The said aspects as well as the details of the petition schedule shop rooms are sought to be ascertained through an Advocate Commissioner. Ext.P6, I.A.No.7 of 2022, was filed by the petitioner seeking permission to adduce additional evidence essentially for the purpose of bringing the Commissioner's report on record. 6. The Appellate Authority as per Ext.P7 common order has dismissed Exts.P5 and P6 applications for the following reasons: “ 8. The point.- The petitioner has not specifically alleged under what circumstances they were not able to adduce proper evidence before the trial court where the case 6 O.P.(RC) No.135 of 2022 was pending from 2019. A rent control proceeding has to be terminated within a period of six months. Only a brief procedure is contemplated under the Act. Elaborate evidence are not expected to be adduce before Rent Control Court. The matters as on the date of application is relevant, subsequent occurrences are of no much significance unless it renders the proceedings infructuous. Current situation is not relevant. 9. Letting the parties to adduce evidence before the appellate court is an exceptional procedure, that can be resorted to only in rare cases where it is justified. Were the appellants could have adduced evidence before the trial court, he should not be allowed to adduce evidence before the appellate court. The petitioner has not alleged materials to suggest that it is a necessary to have further evidence adduced in the case.” 7. The learned counsel appearing for the petitioner would contend that in the objection to the Rent Control Petition itself, the physical ailments of the petitioner were mentioned and he was practically incapacitated to take necessary steps during the trial of that petition. In order to substantiate the said contention, Ext.P2 series documents were produced. These documents would show that the petitioner had undergone treatment in 2018. It may be true 7 O.P.(RC) No.135 of 2022 that in continuation of the illness, the petitioner might have undergone treatment. But those materials are not sufficient to show that the petitioner was totally incapacitated to take steps in the Rent Control Petition for bringing evidence in his favour, especially when he had given oral evidence before the court. Besides, the question whether the petitioner is entitled to call for a Commissioner's report also has to be decided in the light of the facts and circumstances obtained in the case. Subsequent events also are sought to brought in evidence. 8. The Appellate Authority has taken a definite view that such subsequent events could not be considered. This Court in **Gireeshbabu T.P. v. Jameela and others [2021 (5) KHC SN 30]** after referring to the decisions of the Apex Court in **Ramesh Kumar v. Kesho Ram [AIR 1992 SC 700], Kedar Nath Agrawal v. Dhanraji Devi [(2004) 8 SCC 76]** and **Maganlal Kishanlal Godha v. Nanasaheb Uddhaorao Gadewar [(2008) 13 SCC 758], Sheshambal (dead) through LRs. v. Chelur Corporation, Chelur Building [(2010) 3 SCC 470]** and also a few other decisions 8 O.P.(RC) No.135 of 2022 on the point held that subsequent events that have a bearing on the relief claimed by a party can be taken into consideration. It was also observed that the subsequent events which have a fundamental impact on the rights claimed by the rival parties have to be taken into account while adjudicating the claim for eviction on the ground of bona fide need. In such cases, the normal rule that the state of affairs as on the date of institution of the litigation alone is relevant cannot be said invariable. 9. In the objection filed by the petitioner in the Rent Control Petition, it was contended that five rooms in the three-storied building to which the petition schedule shop room forms a part were lying vacant. It is now alleged that a spacious area, where 'Olivia' tailing shop was functioning also is now vacant. The need urged by the respondents is that the 3[rd] respondent wants to start a computer training and job centre. In the light of the provisions of the first proviso to Section 11(3) of the Act, the availability of vacant rooms with the landlords, which are suitable for their purpose, is a 9 O.P.(RC) No.135 of 2022 relevant fact. If a totally new fact sought to be brought on record in the appeal, the same cannot normally be allowed. Here, the availability of five vacant rooms was stated in the objection itself. Now, one more room is said to be vacant. Although it is a subsequent event, considering the rival contentions of the parties, the same assumes relevance while deciding the fact in dispute. Needless to say that the power of the Rent Control Court, as well as the Appellate Authority, is co-extensive in such aspects. In that view of the matter, it is not appropriate to shut out evidence on the reason that the petitioner-tenant has come forward with the commission application at the appellate stage only. 10. In the above circumstances, we are of the view that the order of the Appellate Authority dismissing the commission application, I.A.No.6 of 2022, is incorrect. Hence, the order of the Appellate Authority dated 23.06.2022 in I.A.No.6 of 2022 is set aside. That I.A. is allowed. The Appellate Authority will depute an Advocate Commissioner and take follow-up action in accordance with the law. The 10 O.P.(RC) No.135 of 2022 Original Petition is disposed of accordingly. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(RC) No.135 of 2022 ## **APPENDIX OF OP (RC) 135/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF RCP(OP)NO.2/2019 BEFORE THE RENT CONTROL COURT, ADOOR Exhibit P2 TRUE COPY OF THE MEDICAL RECORD ISSUED BY DR.JOBAN JOHN Exhibit P2(a) TRUE COPY OF THE MEDICAL RECORDS ISSUED BY DR.A.MARTHANDA PILLAI Exhibit P3 TRUE COPY OF THE ORDER PASSED IN R.C.P.NO. 2/2019 Exhibit P4 TRUE COPY OF THE R.C.A.NO.1/2022 Exhibit P5 TRUE COPY OF THE I.A.NO. 6/2022 Exhibit P6 TRUE COPY OF THE I.A.NO. 7/2022 Exhibit P7 TRUE COPY OF THE COMMON ORDER PASSED IN I.A.NO. 6/2022 AND I.A.7/2022**