KANIYATTAYIL AZEEZ v. KANIYATTAYIL MUHAMMAD

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936 RCRev..No. 196 of 2014 () -------------------------- AGAINST THE JUDGMENT IN RCA 138/2012 of THE RENT CONTROL APPELLATE AUTHORITY, ADDL. DISTRICT COURT-I THALASSERY DATED 11.4.2014 AGAINST THE ORDER IN RCP 34/2010 of THE COURT OF RENT CONTROLLER (MUNSIFF) KUTHUPARAMBA DATED 10-2-2012 REVISION PETITIONER/APPELLANT/RESPONDENT: KANIYATTAYIL AZEEZ, AGED 61 YEARS S/O.KUNHIPAKKI, SUBEERA MANZIL, MANATHANA AMSOM MURINGODI DESOM, PERUMPUNNA P.O., PERAVOOR THALASSERY-670702. BY ADVS.SRI.C.KHALID SRI.PHIJO PRADEESH PHILIP RESPONDENT/RESPONDENT/PETITIONER: KANIYATTAYIL MUHAMMAD, S/O.MAMMU HAJI, AGED 64 YEARS, KANIYATTAYIL HOUSE, BENGALAKUNNU P.O.PERUMPUNNA PERAVOOR REPRESENTED BY POWER OF ATTORNEY HOLDER KANIYATTAYIL FAISAL, S/O.K.MUHAMMED, AGED 37 YEARS RESIDING AT KANIYATTAYIL HOUSE, BENGALAKUNNU P.O.PERUMPUNNA PERAVOOR, THALASSERY-670702. R1 BY ADV. SRI.C.P.PEETHAMBARAN CAVEATOR R BY SRI.C.P.PEETHAMBARAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **“CR”** ## **THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** **============================== R.C.R. No. 196 of 2014 ============================== Dated this the 26[th ] day of September, 2014** ## **O R D E R** ## **Thottathil B. Radhakrishnan, J.** This is a revision petition under Section 20 of Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965), hereinafter called the 'Act'. The tenant challenges concurrent findings. Order of eviction was issued by the Rent Control Court on the ground of _bona fide_ need of the landlord under Section 11(3) of the Act and on the ground of arrears of rent under Section 11(2)(b). That stands confirmed in a statutory appeal under Section 18 of the Act. RCR 196/2014 2 2. Heard the learned counsel for the revision petitioner and the learned counsel for the caveator/ respondent at the stage of admission. 3. The landlord Muhammed is deaf and dumb. His son Faisal is a married person. The need projected is that Mohammed wants the petition schedule shop room for his son Faisal to start a bakery business. Faisal has no other occupation. The Rent Control Petition was filed by Muhammed through his son as the duly constituted power of attorney. Evidence on record is that there is a lorry in Faisal's name and he has a licence to drive heavy vehicles. Tenant challenged the need set up and pleaded that he depends on the income derived from the business being carried out in the tenanted premises and that there is no alternate accommodation available to him in the locality. The tenant pleaded that Faisal has no intention to start any business in bakery or stationery and the application is only ruse to evict the tenant, who will be deprived of his RCR 196/2014 3 livelihood in the event of eviction. 4. Before the Rent Control Court, Faisal and two other witnesses were examined, apart from the Commissioner who prepared Ext.C1 report. The tenant gave oral evidence and produced two extracts of the registers of the Accommodation Controller in an attempt to prove the nonavailability of vacant place. The Rent Control Court looked into the entire oral and documentary evidence and appreciated the materials on record in the backdrop of the fairly severe cross examination to which PW1 Faisal was subjected to. The different suggestions that were put to Faisal would ultimately show only that there was a lorry registered in his name and that he had a driving licence to drive heavy vehicles. We are of the view that, such situation by itself cannot denude a person from saying that he has the need to commence a business in bakery or stationery. It is not necessary, within the format of Act 2 of 1965, that the landlord or a dependent of landlord should be asking for RCR 196/2014 4 space by way of eviction only when he is in dire need to generate income for his sustenance. The appreciation of evidence by the Rent Control Court on the question of _bona fide_ need stands affirmed at the hands of the Appellate Authority which also took stock of the entire material evidence on record. Having examined those findings in the light of the quality of evidence as is even reflected in the judgment impugned, we see no ground to interfere on that count. 5. Learned counsel for the revision petitioner referred to the decision of this Court in **Ratheesh Kumar v. Jithjendra Kumar [2005(2)KLT 669]** to canvass that the evidence of a power of attorney holder is insufficient to support a _bona fide_ need projected by the landlord. We examined that judgment. That dealt with a case where the need urged was for the landlord himself. Here, the landlord has projected his need which is nothing but the need to provide for the requirement of his son to occupy the building RCR 196/2014 5 to enable the son to run a business in bakery or stationery. Not only that, the landlord Muhammed, as already noted, is deaf and dumb. In such a case, it is not necessary for courts to insist on the oral evidence of the landlord himself when the beneficiary of the application, namely, the son, has tendered evidence, not only as to the purpose, but also as the power of attorney holder of the landlord. The ratio in **Ratheeshkumar** _(supra)_ to that extent does not apply to the case in hand. 6. Onto the protection of the second proviso to Section 11(3) of the Act, the Rent Control Court as well as the Appellate Authority categorically found that there is no evidence sustaining the dual requirement and conditions regarding the tenant not having any other source of income and that there is no other accommodation available in the locality. There is nothing on record to show that the tenant depends solely on the income derived from the business conducted by him in the tenanted premises RCR 196/2014 6 for his livelihood. The courts below were not satisfied, without any further corroboration, to act on the testimony of the tenant only. Equally, the certifications of the Accommodation Controller, by themselves, were not sufficient to show the non-availability of other premises in the locality. All these findings of the Rent Control Court were affirmed by the Appellate Authority on re-appreciation of the materials and evidence on record. The challenge of the tenant on this issue also fails as not warranting interference under Section 20 of the Act. 7. The learned counsel for the revision petitioner made an earnest effort to argue that the rent control petition itself could not have been entertained without applying the principles contained in Order XXXII, Rule 15 of the Code of Civil Procedure. He referred to the precedents in **Kunhamma v. Rosakutty [1997(1) KLT 33]** and **Raveendran v. Sobhana and Another [2008(1) KLT488].** Those were cases decided holding that mental RCR 196/2014 7 infirmity does not necessarily mean mental illness or unsoundness of mind or insanity, but may include cases where there is mental infirmity suffered as a result of a person being deaf and dumb. **Kunhamma** _(supra)_ rendered by the learned single Judge dealt with a case as to the correctness of the proceedings for an enquiry conducted under Order XXXII, Rule 15 of C.P.C. The challenge therein was by the defendant in the suit instituted by a next friend on behalf of the person who was allegedly deaf and dumb and also suffering from mental infirmity. **Raveendran** _(supra)_ was decided by the Division Bench on an appeal from an order of the Family Court in which, the challenge was by the person who alleged that he was mentally infirm and therefore, was not bound by a settlement which is signed in a proceeding under Section 125 of the Code of Criminal Procedure. Those judgments relate to the procedures under Order XXXII, Rule 15 and in criminal jurisdiction as may be relevant to protect persons of RCR 196/2014 8 unsound mind. Those principles are intended to protect persons with mental infirmity and to protect their interest, when suing or being sued. Those provisions are protective shields designed to take care of the interest of those persons who fall within the protective covenants eligible to be jurisprudentially recognized within the format of Order XXXII of C.P.C. and the relevant provisions of Cr.P.C. in the backdrop of the Constitution of India including the doctrines relating to human rights and values. They are not intended to be used as provisions for any opponent to curtail the legitimate rights of prosecution of interest of a challenged person. Those provisions and principles are shields for the challenged; not to be used as swords to annihilate their rights. 8. The tenant had raised no plea about the so-called mental infirmity of the landlord Muhammed, either before the Rent Control Court or before the Appellate Authority. It is sought to be projected for the first time, in this revision. RCR 196/2014 9 We are told that the tenant had filed an application to summon Muhammed to be examined as a witness. We have seen the relevant materials in that regard. That was an attempt to dislodge the plea of the _bona fide_ need set up by Muhammed projecting the need of his son Faisal and not a process to make available Muhammed for proceedings akin to Order XXXII, Rule 15 of C.P.C. 9. In the case in hand, the rent control petition was instituted by Muhammed through his power of attorney holder, his son Faisal. The power of attorney document was produced before the Rent Control Court. That was not challenged. Power of attorney is essentially a contract. The power to enter into a contract is not one falling under Order XXXII, Rule 15 of C.P.C. The contract and its sustenance would depend upon the provisions of the Contract Act. Neither Muhammed nor Faisal had any complaint about the power of attorney. Not only that, even the tenant did not challenge the power of attorney document before the Rent RCR 196/2014 10 Control Court. If that document of power of attorney is not challenged and if the court acts on that power of attorney, it goes without saying that the power of attorney holder can file an application in terms of Sections 2(3) and 11(6) of Act 2 of 1965 as has been held by this Court in **Ratheeshkumar** _(supra)._ 10. For the aforesaid reasons, this revision petition fails. In the result, - (a)This revision is dismissed. (b) The revision petitioner is granted six months' time from today to vacate the premises and deliver possession to the landlord on the following conditions: i)The revision petitioner remits the entire arrears of rent as on today before the executing court within two months from today and files an affidavit before RCR 196/2014 11 the executing court within two months from today, unconditionally undertaking to surrender vacant possession of the premises to the landlord within six months from today. ii) He pays charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the premises to the landlord. c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of six months. d)If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenant as per this order will RCR 196/2014 12 stand recalled automatically and the executing court shall effect delivery forthwith. **Sd/-** **THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S.to Judge RCR 196/2014 13