K. NABEEL v. DR. P. MUHAMMAD IBRAHIM

AGAINST THE JUDGMENT IN RCA 29/2015 OF THE RENT CONTROL APPELLATE AUTHORITY, MANJERI AGAINST THE ORDER IN RCP 4/2013 OF THE MUNSIFF'S COURT,PERINTHALMANNA ## REVISION PETITIONER(S)/APPELLANT/TENANT K.NABEEL, S/O.KARAKKUNNAN HAMSA, THELAKKAD AMSOM, KARYAVATTOM DESOM, THELAKKAD P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679322. ## BY ADV.SRI.M.KRISHNAKUMAR ## RESPONDENT(S)/RESPONDENT/LANDLORD: DR.P.MUHAMMAD IBRAHIM, S/O.PERUVAMPALLI ABDULLA, PERUVAMPALLI HOUSE, OPP:KSRTC BUS STAND, PERINTHALMANNA AMSOM DESOM, PERINTHALMANNA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679322, PRESENTLY RESIDING AT QUARTER NO.B/6, KANNUR MEDICAL COLLEGE, ANJARAKANDY, KANNUR, KANNUR DISTRICT-670612. ## BY ADV. SRI.P. VENUGOPAL (1086/92) (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27-07-2018, ALONG WITH RCR NOS.240 & 244/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **“CR”** ## **K. HARILAL & ANNIE JOHN,JJ.** **= = = = = = = = = = = = = = = = =** **R.C.R.Nos.220, 240 & 244 of 2018 - - - - - - -- - - - - - - - - - - - - -** _Dated this the 27[th] day of July, 2018_ ## **O R D E R** ## **K. Harilal, J.** Since all these revision petitions have been filed, challenging the common judgment passed in appeal and parties are common, all these revision petitions are heard together and disposed of accordingly. 2. The revision petitioners are tenants, who are occupying various rooms owned and possessed by the respondent herein. The respondent herein altogether filed five rent control petitions, seeking an order of eviction under Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act, 1965 _(hereinafter referred to as 'the Act')_ on a **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 2 :-** common need. 3. According to the respondent/landlord, he _bona fide_ needs the petition schedule shop rooms for starting an orthopaedic clinic. He is a Doctor specialised in orthopaedics and working as a Professor in the Department of Orthopaedics, Kannur Medical College and he intends to quit his present employment, so as to start his own Orthopaedic clinic at Perinthalmanna in the petition schedule buildings. He intends to shift his entire family to Perinthalmanna, where he is having a tharavad house situated behind the row of petition schedule rooms. Some other rooms belongs to his wife, which are situated in the same building and she also initiated proceedings to get vacant possession of those rooms. Thus, all the shop rooms owned by the respondent and his wife are the subject matter in various rent **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 3 :-** control petitions filed by him and his wife. He is in possession of a room bearing No.V/773. But, the said room alone is not sufficient or suitable for the need projected in the petition, as that shop room is a stair case room. Therefore, vacant possession of the petition schedule shop rooms are required to start a clinic. The commencement of such a clinic is extremely essential to earn the future livelihood for his family. The respondent is not in possession of any other suitable buildings, for the requirement of a hospital. But, several other shop rooms are available in the locality to shift the business of the revision petitioners from the tenanted premises. The revision petitioners are not depending upon the income derived from the business carried on in the petition schedule shop rooms. **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 4 :-** 4. The revision petitioners opposed the said application seeking an order of eviction, contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. The respondent has a residential building in his possession, which is behind the row of petition schedule shop rooms, in addition to room No.V/773. Therefore, if the need is a _bona fide_ one, the respondent can start the proposed clinic by utilising the said tharavad house and room No.V/773. According to the revision petitioners, the petition schedule shop rooms are not suitable for conducting a clinic and the rooms cannot be converted to a clinic. They are all depending upon the income derived from their respective business in the petition schedule shop rooms for their livelihood and no other vacant buildings are available in the ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 5 :-** locality to shift their business from the tenanted premises. It is also contended that actually there was no requirement to start a hospital, as he has other landed properties and several other sources of income. 5. On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral testimony of PW.1 and Exts.A1 to A5 from the part of the respondent/petitioner and the oral testimony of RWs.1 to 5 and Exts.C1 to C5, as court exhibits. No documentary evidence was produced by the revision petitioners/respondents. 6. After appreciating the aforesaid evidence on record, the Rent Control Court allowed the Rent Control Petition under Section 11(3) of the Act, on a finding that the need projected in the petition was _bona fide,_ the claim for own occupation is not ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 6 :-** hit by the first proviso and the revision petitioners are not entitled to get protection under Section 11(3) of the Act. Though the revision petitioners preferred appeals, the Appellate Authority concurred with the aforesaid findings and dismissed the appeals. Thus, the concurrent findings, whereby the courts below found that the respondent is entitled to get an order of eviction under Section 11(3) of the Act, are assailed in this revision. 7. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 8. The learned counsel appearing for the revision petitioners in the aforesaid revision petitions have advanced arguments exhaustively focusing the sole point that the Appellate Authority ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 7 :-** went wrong by refusing to accept the valuable evidence produced by the revision petitioners in appeals. According to the learned counsel, in view of the statutory mandate under Sections 18 and 26 of the Act, the Appellate Authority should have accepted the documents produced by one of the revision petitioners in appeals. Further, it is contended that on the basis of the documents which is sought to be produced in appeals, the Appellate Authority should have embarked upon an enquiry either by itself or by directing the Rent Control Court, on the basis of the facts revealed from the aforesaid documents produced in evidence. But, the Appellate Authority has rejected the documents in violation of the statutory mandate and such an illegality warrants interference of this Court under the revisional jurisdiction. It is also contended **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 8 :-** that the need projected in those petitions was not a current need and no order of eviction could have been passed under Section 11(3) of the Act, on the basis of the need, which is likely to have arisen in future. No other point has been raised, before us, in these revision petitions. So, we are inclined to consider this point only. 9. Per contra, the learned counsel for the respondent advanced arguments to justify the rejection of Interlocutory Application No.886 of 2016 and the documents produced along with the said Interlocutory Application. It is contended by the learned counsel for the respondent that the matter which was brought in evidence by the production of the aforesaid documents in appeal was not a new matter or a subsequently arising one. According to the learned counsel, the aforesaid documents were **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 9 :-** produced in appeals to prove that the respondent has another buildings other than the tharavad house and room No.V/773 in his possession. But, the said fact was brought up in evidence during the course of trial and put to the revision petitioners and the revision petitioners have given special reason for not occupying the said building. Therefore, the existence of such a building was not a matter in issue either before the Rent Control Court or the Appellate Authority, particularly when, the respondent himself has admitted the ownership of such a building and has given special reasons for not occupying the same. 10. In order to fortify the aforesaid arguments, the learned counsel for the revision petitioners cited _**Kunhammed Koya v. M/s.Nallalam Saw Mills and Others**_ [2010(3) KHC 739], _**Irvin John**_ **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 10 :-** _**Jayarajan v. Madhavi Alias Narayani Amma and Others**_ [2009 KHC 4461] and _**Govinda Nambiar v, Raghavan**_ [1998(2) KLT 786(SC)] 11. In order to substantiate the contentions raised by the revision petitioners, the learned counsel for the respondent cited _**Urmeses J. Valooran v. Padma**_ [2014 KHC 5043], _**Kunju T.P. v. Fathima and Otheers**_ [2014(3) KC 127], _**Raghunath G. Panhale(dead) By Lrs. v. Chaganla Sundarji and Co.**_ [1999 KHC 1376] and _**Kunhamina K. v. V.K.T. Aboobaker Haji**_ [2016 KHC 639]. 12. In view of the arguments at the Bar, the question to be considered is, whether there is any illegality or impropriety in the findings or the reasoning, whereby the Appellate Authority rejected Interlocutory Application No.886 of 2016 and documents produced along with the said Interlocutory ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 11 :-** Application. Going by the pleadings of the respondent, it could be seen that the revision petitioners have not raised a contention that the respondent has a third building other than the tharavad house and room No.V/773 in his possession. Going by the averments in the affidavit produced along with the Interlocutory Application No.886 of 2016, it is seen that the aforesaid Interlocutory Application was filed under Section 18(3) of the Act and Order XLI Rule 27 of the Code of Civil Procedure, 1908 _(hereinafter referred to as 'the C.P.C.)_ . The prayer in the Interlocutory Application is to receive the documents produced by the revision petitioners in the above appeals only. 13. The sum and substance of the arguments advanced by the learned counsel for the revision petitioners is that the Appellate Authority is also ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 12 :-** a fact finding court with the same powers as that of the Rent Control Court. Therefore, if the parties to the appeal tender any evidence in appeal, it is obligatory on the Appellate Authority to receive that evidence in appeal, without considering the reasons, for the belated production of it in the appeal. In order to substantiate the said point, the learned counsel for the revision petitioners drew our attention to Section 18(3)and (4) of the Act. It is contended that where the Appellate Authority is also vested with all powers of the Rent Control Court, the Appellate Authority is liable to accept any evidence produced in appeal, as if it was produced in the Rent Control Court, irrespective of the reason for non-production of the same in the Rent Control Court. 14. The question is, is the Appellate ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 13 :-** Authority liable to receive evidence in appeal as if it was produced in the Rent Control Court, notwithstanding the reason for the belated production of the same in appeal? According to Section 18(3) of the Act, the Appellate Authority is also seen conferred with power to make further enquiry as it thinks fit either directly or through the Rent Control Court, if necessary. Thus, “if necessary”, is a condition precedent for embarking upon a further enquiry. The expression “as it thinks fit” gives a discretionary power to the Rent Control Appellate Authority either to receive the evidence or reject the same in appeal. As per Section 18(4) of the Act, the Appellate Authority shall have all the powers of the Rent Control Court including the fixation of arrears of rent. But, merely for the reason that the Appellate Authority ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 14 :-** also has the powers of the Rent Control Court, the parties to the appeal cannot claim, as of right, reception of evidence in appeal, as if it was produced before the Rent Control Court. Section 18(4) of the Act cannot be read independently and the same requires to be read along with Section 18(3) only. To sum up, the Appellate Authority is not bound to receive evidence invariably, whatever may be the evidence, produced in appeal, as if it was produced before the Rent Control Court. 15. It is pertinent to note that in Interlocutory Application No.886 of 2016, there is no prayer for making any further enquiry and the prayer is to accept three documents produced along with the affidavit and the application is seen filed under Order XLI Rule 27 of the C.P.C. also. There emerges a question, is there any provision in the **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 15 :-** Rent Control Act, to accept the evidence, during the appellate stage. Indisputably, certain provisions of the C.P.C. are made applicable to the proceedings under the Act. Certain provisions under the C.P.C. are seen carved out and incorporated under Section 23 of the Act. 16. Going by Section 23(f) of the Act, it is seen that for reception of evidence taken on affidavit, Order XLI Rule 27 of the C.P.C. is made applicable to the Appellate Authority. Therefore, we find that the Appellate Authority is justified in invoking the principles enumerated under Order XLI Rule 27 of the C.P.C., for accepting the additional evidence produced on affidavit at the appellate stage. In the instant case, two documents were produced along with the affidavit before the Appellate Authority. ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 16 :-** 17. According to Order XLI Rule 27 of the C.P.C., party cannot adduce evidence in appeal as of right and unless the Appellate Court is satisfied that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or the Appellate Authority requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence in appeal. Therefore, the Appellate Authority is fully justified in examining the admissibility of all the documents produced along with Interlocutory Application No.886 of 2016, to determine whether those documents are admissible, in view of Order XLI Rule 27 of the C.P.C. **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 17 :-** 18. Going by the affidavit produced along with Interlocutory Application No.886 of 2016, it could be seen that no reason was stated, as to the nonproduction of the aforesaid documents at the time when the evidence was added before the Rent Control Court. The revision petitioners have no case that the existence of those documents or a third building was not within their knowledge, notwithstanding the exercise of due diligence or could not be produced by them, at the time when the decree appealed against was passed. 19. Coming to the documents, it could been seen that those documents are the certified copies of property tax register, building tax register extract, two in number, and building permit was the one issued to the respondent by the Municipality. The respondent has no case that the building is a ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 18 :-** new one and that came into existence after the disposal of the Rent control Petition. Certainly those documents could have been obtained at a time before the commencement of trial in the Rent Control Petition. To sum up, there was no explanation for the belated production of the documents, at the appellate stage. 20. Going by the reasons stated by the Appellate Authority for rejecting the aforesaid documents, the Appellate Authority has stated that those documents have no evidenciary value at all and are not essential to pronounce the judgment in appeal. The learned counsel for the respondent invited our attention to paragraph No.26 of the impugned order passed by the Rent Control Court and submits that the existence of a third building at a distance of 05 kilometres away from the petition ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 19 :-** schedule shop room in the municipal areas at Manathumangalam was accepted by the respondent and he has given special reasons before the Rent Control Court for not occupying the said building for the proposed clinic. 21. Going by paragraph 59 of the impugned order passed by the Rent Control Court, it is specifically stated that the respondent himself has stated that the old house, which is seen referred to in the building tax registers and the building permit produced before the Appellate Authority, was purchased about five years ago for the residential purpose of his son. According to the respondent, though the aforesaid house is situated within the municipal area, the same is about 05 kilometres away from the petition schedule shop rooms and that building is not suitable for the proposed clinic and ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 20 :-** not situated in a suitable locality. The special reason given by the respondent was accepted by the Rent Control Court as a sufficient reason for not occupying the building shown in the building tax registers and building permit. In appeal, the Appellate Authority also accepted the aforesaid special reason for not occupying the disputed third building. We do not find any reason to take a different view. 22. Coming to the building tax registers, it shows that the respondent is the owner of the said building. Since the ownership was not disputed by the respondent himself, the building tax registers are of no consequence at all. So also, the admitted fact need not be proved. Coming to the building permit, obviously, the building permit shows that the building is a residential building. **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 21 :-** Even though the said documents were not accepted in evidence, we find that the nature of the building shown in the building permit produced by the respondent would give an assurance to the case of the respondent that the said building is a residential building intended for the residential purpose of his son. That apart, the building permit shows that the application was filed on 21.12.2003, after filing of the Rent Control Petition on 24.10.2013. Since the existence of the building at the time of trial was accepted by the respondent himself in his evidence, the said building permit is also inconsequential and have no relevancy to decide the disputed issue under the 1[st] proviso to Section 11(3) of the Act. 23. We have meticulously gone through the decisions referred to above cited by the learned **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 22 :-** counsel for the revision petitioners in _**Kunhammed Koya**_ 's (supra) and _**Irvin John Jayarajan**_ 's case (supra). The Division Bench of this Court held that “the power of the Rent Control Appellate Authority and the Rent Control Court to permit the parties to adduce evidence, and hold enquiries are coterminus. Whatever power the Rent Control Court has to receive evidence, the Appellate Authority also has”. We also agree with the said proposition. But, it is to be added that though the Appellate Authority has power, the party has no right to adduce evidence before the Appellate Authority, as of right, as if it was produced in the Rent Control Court. This is the statutory mandate under Section 18(3) of the Act. In the aforesaid decisions, the Division Bench of this Court had no opportunity to consider the statutory mandate under Section 18(3) of the Act. ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 23 :-** Had the earlier Bench got an opportunity to consider the same, we are sure that the said Bench also would have held, as we held above. The said decision was rendered, in view of Section 26 of the Act only. Therefore, the aforesaid decision will not help the revision petitioners to substantiate their contention and no reliance could be placed on those decisions. Similarly, though we have gone through _**Govinda Nambiar**_ 's case (supra), we do not find any 'ratio decidenti' in the said decision to fortify the argument advanced by the learned counsel for the revision petitioners. There, construction of the first proviso to Section 11(3) of the Act alone was the issue. So, no reliance could be placed on the said decision also. 24. In the above analysis, the Appellate Authority is justified in rejecting the application **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 24 :-** without embarking upon an unnecessary enquiry on the basis of the documents produced by the respondent in the appeal before the Appellate Authority. In other words, no purpose was served by the production of the aforesaid documents before the Appellate Authority and nothing new could have been brought out in evidence, before the Appellate Authority. 25. In the above analysis, we find that there is no illegality or impropriety in the findings, whereby the Appellate Authority rejected Interlocutory Application No.886 of 2016 and the documents produced before the Appellate Authority. In the absence of any kind of illegality or impropriety in any of the findings, whereby the Appellate Authority refused to accept evidence in appeal, this revision will stand dismissed. 26. Having regard to the facts and ## **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 25 :-** circumstances of the case, the revision petitioners are given six months time to vacate the tenanted premises on the following conditions: - _(i) The tenants in the Rent Control Petitions 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._ - _(ii)The tenants 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_ **R.C.R. Nos.220, 240 & 244 of 2018** ## **-: 26 :-** _will stand automatically cancelled and the landlord will be at liberty to proceed with the execution of the eviction order._ These rent control revisions are dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** DST //True copy// P.A. To Judge