K.C. Girish v. Sathyan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936 ## **RCRev..No. 306 of 2014 (B)** AGAINST THE JUDGMENT IN RCA .NO.6/2010 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE - II), KALPETTA, WAYANAD, DATED 23-06-2014 AGAINST THE ORDER IN RCP NO.3/2009 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF-MAGISTRATE), SULTHAN BATHERY DATED 19-07-2010 ## REVISION PETITIONER/RESPONDENT/PETITIONER: K.C.GIRISH, AGED 52 YEARS S/O.CHANDRASHEKARAN, KANHIRAPARAMBIL (H), MANKOMBU, AMBALAVAYAL P.O., NENMENI VILLAGE SULTHANBATHERY TALUK, WAYANAD DISTRICT. BY ADVS. SRI.SAJEEVAN KURUKKUTTIYULLATHIL SMT.SARITHA THOMAS ## RESPONDENT/APPELLANT/COUNTER PETITIONER: SATHYAN, AGED 47 YEARS S/O.VASU, KALATHINGAL (H), KUMBALERI P.O. AMBALAVAYAL AMSOM AND DESOM, SULTHAN BATHERY TALUK WAYANAD DISTRICT. BY ADV. SRI.P.B.KRISHNAN BY ADV. SRI.P.M.NEELAKANDAN BY ADV. SRI.P.B.SUBRAMANYAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.D.RAJAN, JJ.** **----------------------------------------------------** **R.C.R. NO.306 OF 2014 (B)** **---------------------------------------------------Dated this the 2[nd] day of December, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** The petitioner filed R.C.P.No.3 of 2009 on the file of the Rent Control Court, Sulthanbathery against the respondent under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 2. The Rent Control Court, as per the order dated 19.7.2010, allowed the Rent Control Petition under Sections 11(2)(b) and 11(3) of the Act. It is submitted that the ground under Section 11(2)(b) does not survive now since the rent was subsequently paid. The tenant filed R.C.A.No.6 of 2010 on the file of the Rent Control Appellate Authority, Kalpetta, challenging the order of the Rent Control Court under Section 11(3) of the Act. As per the judgment dated 23.6.2014, the Appellate Authority reversed the finding of the Rent Control Court under Section 11(3) of the Act on the ground that ## **R.C.R. NO.306 OF 2014 (B)** :: 2 :: the landlord was not examined in the case and instead his power of attorney holder was examined. 3. The case put forward by the landlord is that he is employed in a Gulf country and he intends to return and stay at Ambalavayal, his native place, and to do business in the petition schedule shop room. The landlord and the members of his family are all expecting an early commencement of the business in the petition schedule shop room and the landlord bona fide requires the petition schedule shop room to conduct business of his choice. The landlord wants to earn his own independent income by doing business in the petition schedule building. 4. The tenant disputed the bona fides and contended that the bona fide need put forward is false. The landlord is employed in a Gulf country and he is getting good salary. The attempt of the landlord is only to some how or other evict the tenant. The tenant also raised the contention that he is entitled to the protection under the second proviso to Section 11(3) of the Act. ## **R.C.R. NO.306 OF 2014 (B)** :: 3 :: 5. Before the Rent Control Court, the power of attorney holder of the landlord, who is none other than the brother of the landlord, was examined as PW1. Another witness was examined as PW2. On the tenant's side, he was examined as RW1. Documentary evidence was also produced by both the parties. PW1, the power of attorney holder of the landlord, deposed before the Rent Control Court that he is authorised to do all that is required for the purpose of prosecuting the Rent Control Petition. Ext.A1 power of attorney was marked in the case. PW1 was authorised to appear before Court on behalf of the landlord. 6. The Rent Control Court relied on the evidence of PW1 and PW2 and held that the bona fide need is established. The claim put forward by the tenant that he is entitled to the protection under the second proviso to Section 11(3) of the Act was rejected. 7. The Appellate Authority noticed from the evidence of PW1 that the landlord was employed in a Gulf country at the time when ## **R.C.R. NO.306 OF 2014 (B)** :: 4 :: the Rent Control Petition was being tried. Before the Appellate Authority the landlord appeared and he filed I.A.No.146 of 2014 to receive his passport as additional document. The entry in the passport would show that the landlord came back to his native place after obtaining an Exit Visa from Saudi Arabia where he was working. 8. The Appellate Authority, relying on the decisions of the Supreme Court in **S.Kesari Hanuman Goud** . v. **Anjum Jehan and others (2013 KHC 4290 = ((2013) 12 SCC 64)** , **Man Kaur (dead) by LRs** . v. **Hartar Singh Sangha (2010 KHC 4741 = (2010) 10 SCC 512)** and **Ratheesh Kumar** v. **Jithendra Kumar T. Lodhaya (2005 KHC 701 = 2005(2) KLJ 46)** , held that the evidence of the power of attorney holder cannot be relied on in respect of facts within the personal knowledge of the principal, namely, the landlord. In the affidavit accompanying I.A.No.146 of 2014, the landlord stated that he lost his job in Saudi Arabia and he left that country after stamping the final Exit Visa on 3.5.2011. That shows that at the time when the Rent Control Petition was pending disposal, he had not come back ## **R.C.R. NO.306 OF 2014 (B)** :: 5 :: to India. The Appellate Authority erroneously thought that he came back to India on 14.3.2010. 9. Only on the ground that the landlord was not examined, the Appellate Authority allowed the appeal and dismissed the Rent Control Petition. It is not disputed that the landlord was working abroad. It is not disputed that he had come back to India in May, 2011. By that time, the Rent Control Petition was over. The landlord could not adduce evidence before the Rent Control Court. It is not disputed that PW1 is the brother of the landlord and that he is the power of attorney holder of the landlord. The Rent Control Petition was filed in 2009 and it was disposed of in July, 2010. If the Appellate Authority thought that the landlord should have been examined, the Appellate Authority should have granted an opportunity to the landlord to adduce evidence, since it was brought to the notice of the Appellate Authority that the landlord has permanently come back to India. 10. We are of the view that it would be unjust at this point of ## **R.C.R. NO.306 OF 2014 (B)** :: 6 :: time to reject the prayer for eviction made by the landlord under Section 11(3) of the Act only on the ground that he did not adduce oral evidence before the Rent Control Court, in the peculiar facts and circumstances of the case. We are of the view that an opportunity should be given to the landlord to adduce oral evidence in the case and also, if necessary, to amend the pleadings incorporating the fact that he has permanently come back to India. At the same time, we do not think it is necessary to remand the case to the Rent Control Court since it would cause unnecessary and undue delay in the disposal of the case. We are of the view that it would be sufficient to remand the case to the Appellate Authority. For the aforesaid reasons, we allow the Rent Control Revision, set aside the judgment passed by the Appellate Authority and remand the case to the Appellate Authority for fresh disposal of the appeal. The landlord would be entitled to amend the Rent Control Petition, if so advised, incorporating the factual statement that he has come back to India and to put forward such other additional facts which are relevant and required. The tenant would be entitled ## **R.C.R. NO.306 OF 2014 (B)** :: 7 :: to file additional counter statement, if such a petition for amendment is made. Both parties will be entitled to adduce evidence, oral and documentary, before the Appellate Authority to substantiate their respective contentions. The Appellate Authority shall, after affording both parties an opportunity of being heard, dispose of the appeal as expeditiously as possible. The parties shall appear before the Appellate Authority on 19.1.2015. **(K.T.SANKARAN) Judge** **(P.D. RAJAN) Judge** ahz/