K.P. Abdul Razak v. M.P. Janardhanan

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943 ## R.C. REV. NO. 301 OF 2019 AGAINST THE JUDGMENT DATED 19.03.2019 IN RCA NO.173/2012 OF RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT-IV), THALASSERRY AGAINST THE ORDER DATED 26.07.2012 IN RCP NO.45/2012 OF RENT CONTROL COURT (PRINCIPAL MUNSIFF'S COURT), KANNUR ## REVISION PETITIONER/RESPONDENT/PETITIONER: * K.P.ABDUL RAZAK AGED 55 YEARS S/O. K.V.MAMMAD HAJI, KANDIKKAL PUTHIYA PURAYIL, KAMBIL.P.O., KOLACHERY, KANNUR (DIED) ADDL.PETITIONERS P2 TO P7 IMPLEADED: * ADDL RAFIYA.K,W/O LATE ABDUL RAZAK, AGED 50 YEARS, .P2 C.M.T.HOUSE, P.O.CHELERI, KANNUR -670604 ADDL RAHEES.K, S/O LATE ABDUL RAZAK, AGED 31 YEARS, .P3 C.M.T. HOUSE, P.O. CHELERI, KANNUR- 670604 ADDL RAZIQUE.K, S/O LATE ABDUL RAZAK, AGED 27 YEARS, .P4 C.M.T HOUSE, P.O. CHELERI, KANNUR -670604 ADDL RANEESHA.K,S/O LATE ABDUL RAZAK, AGED 24 YEARS, .P5 C.M.T HOUSE, P.O.CHELERI, KANNUR - 670604 ADDL RASEEN.K,S/O LATE ABDUL RAZAK, AGED 21 YEARS, .P6 C.M.T HOUSE, P.O. CHELERI, KANNUR -670604 ADDL ABDUL NAFIH.K,S/O LATE ABDUL RAZAK, AGED 16 YEARS, .P7 (MINOR), C.M.T HOUSE, P.O. CHELERI, KANNUR670604.REPRESENTED BY MOTHER AND GUARDIAN RAFIYA.K. *(ADDL.PETITIONERS P2 TO P7 BEING THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST PETITIONER ARE IMPLEADED AS PER THE ORDER DATED 10/2/2021 IN IA NO.1/2021) BY ADV K.RAJESH SUKUMARAN 2 R.C.Rev.No.301 of 2019 ## RESPONDENT/APPELLANT/RESPONDENT: M.P.JANARDHANAN,S/O. KUNHAPPA, AGED 80 YEARS, MUNDAPRATH HOUSE, P.O.NARATH, KANNUR BY ADV SRI.V.R.KESAVA KAIMAL THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 R.C.Rev.No.301 of 2019 ## **ORDER** ## **Viju Abraham, J.** The revision petitioner is the petitioner-landlord in R.C.P. No.45 of 2012 on the file of the Rent Control Court (Principal Munsiff) Kannur, a petition seeking eviction of the respondenttenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act”). As per the averment in the Rent Control petition, the petitioner bona fide needs the petition scheduled building for his son Mohammed Rahees, who is dependent on him, to start a stationery business. While the revision petition was pending in this court, the petitioner-landlord died on 10.03.2020 and his legal heirs were impleaded as additional petitioners 2 to 7, as per order in I.A.No.1 of 2021 dated 10-2-2021. 2. Before the Rent Control Court, the plea of bona fide need raised by the petitioner-landlord was opposed by the respondent-tenant by filing a detailed counter statement. On the side of the petitioner, PW1, who is the son of the petitioner, was examined and the respondent-tenant tendered evidence 4 R.C.Rev.No.301 of 2019 as RW1. 3. After considering the pleadings and evidence on record, the Rent Control Court concluded that the landlord succeeded in proving the bona fide need under Section 11(3) of the Act and that, the tenant failed to prove that he is entitled to the protection under the provisos to Section 11(3) of the Act. The Rent Control Court allowed the petition with a direction to the tenant to put the landlord in possession of the petition scheduled building, within a period of 2 months from the date of the order. 4. The tenant challenged the order of the Rent Control Court, before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery, in R.C.A.No.173 of 2012. Before the Appellate Authority, the tenant produced Exhibit-B1 document, an extract of the property tax assessment register maintained by the local authority, to prove that there is another shop room in the ownership of the landlord, which is lying vacant. The Appellate Authority, accepting Exhibit-B1 property tax assessment register, allowed the appeal by setting aside the order passed by the Rent Control Court in R.C.P. No.45 of 2012 and remitted the matter to the Rent Control 5 R.C.Rev.No.301 of 2019 Court to consider entitlement of the tenant for the protection of the first proviso to Section 11(3) of the Act. 5. Aggrieved by the judgment of the Appellate Authority in R.C.A.No.173 of 2012, the landlord has come up in Revision. 6. Shri. Rajesh Sukumaran, learned counsel for the revision petitioner-landlord contended that it is on a proper appreciation of the pleadings and the evidence on record that the Rent Control Court has ordered eviction and therefore, the said order ought not to have been interfered by the Appellate Authority only based on Exhibit-B1 property tax assessment register for the year 2004-2005. It was also contended that even the Appellate Authority after appreciating the rival contentions of the parties has entered a finding that there is sufficient pleading in the petition with respect to the dependency, as envisaged under Section 11(3) of the Act, and that even though the tenant contended that the landlord is in possession of several other vacant shop rooms suitable for the proposed business of PW1, he has not produced any evidence before the Rent Control Court to prove his contentions. Learned counsel reiterated the contention that the monthly 6 R.C.Rev.No.301 of 2019 rent of Rs.50/- fixed at the time of entrustment was never enhanced thereafter. He further contended that Exhibit-B1, property tax assessment register is for the period 2004-05 and it will not help to improve the case put forward by the tenant. It was also contended that Exhibit-B1 document has no evidentiary value in an eviction proceeding initiated under the Act. To support the said contention, he relies on the Judgment of this Court in **Panoli Alikutty and another v. Suresh Babu [2018 (5) KHC 621]** . 7. Shri V.R.K. Kaimal, learned counsel appearing for the respondent-tenant would contend that Exhibit-B1 property tax assessment register is a valid proof of the tenant's contention that a shop room in the ownership of the landlord is lying vacant and the Appellate Authority was perfectly justified in setting aside the order of the Rent Control Court and remitting the case for fresh consideration. 8. The question that arises for consideration in this Revision Petition is whether the Appellate Authority was justified in setting aside the order of the Rent Control Court accepting Exhibit-B1 property tax assessment register produced by the respondent-tenant before the Appellate 7 R.C.Rev.No.301 of 2019 Authority. 9. Eviction sought under Section 11(3) of the Act could be granted by the Rent Control Court only if the petitionerlandlord is able to prove that he bona fide needs the petition scheduled building for his own occupation or for the occupation by any member of his family dependent on him and also on a finding that the respondent-tenant is not entitled to the protection of the provisos to Section 11(3) of the Act. The specific contention of the petitioner-landlord is that he bona fide requires the petition scheduled building for his son Mr. Mohammed Rahees who is dependent on him. It has come out in evidence that Mohammed Rahees is jobless and he intends to start a stationery business in the petition scheduled building. It has also come out in evidence that the monthly rent of Rs.50/- fixed at the time of entrustment was never enhanced. Regarding the plea of bona fide need, the Rent Control Court, based on the pleadings and the evidence on record, entered a finding that the bona fide need put forward by the petitioner-landlord is genuine. After having found the claim of bona fide need to be genuine based on the evidence rendered by the petitioner-landlord through PW1, the Rent 8 R.C.Rev.No.301 of 2019 Control Court considered the question as to whether the tenant is entitled to the protection under the provisos to Section 11(3) of the Act. The petitioner-landlord gave evidence to substantiate that he does not possess any other building to accommodate the proposed business of his son and that, a large number of buildings are available in the locality and the respondent could shift his business to those buildings. He also deposed that the respondent-tenant has got other sources of income and that, he is engaged in the business of plywood and is running a factory. 10. It is settled law that the primary burden is on the tenant to prove that landlord is in possession of another building as mandated in the first proviso to Section 11(3) of the Act, as per the decisions in **Panoli Surendran v. P.M.** **Mammootty [2009 (2) KLT SN 13 (C.No.16)], Kunhamina** **K. v. V.K.T. Aboobacker Haji [ILR 2016 (3) Ker.349]** and **Chacko P. Mathew v. Kuttappan [2002 (2) KLT SN 42(C.No.52)]** , that both the limbs under the second proviso to Section 11(3) are conjunctive and it is for the tenant to prove the same, viz, the decisions in **Kochappan Pillai v.** 9 R.C.Rev.No.301 of 2019 **Chellappan [1976 KLT 1], Francis v. Sreedevi Varassiar [2003 (2) KLT 230 (F.B.)], Thanuja Sunderdas v. Sisirkumar Raj [2008 (4) KLT 241 (F.B.)]** . Except for the averment that the landlord is in possession of several other vacant shop rooms, and that no other suitable room is available for him to shift his business, the tenant did not take any steps to adduce evidence to prove the said contention before the Rent Control Court. The said factual aspect of availability of vacant rooms could have been easily proved by taking out an Advocate Commission, but the respondenttenant did not choose to do so. The respondent-tenant failed to establish that any vacant room was in possession of the landlord at the time of filing the Rent Control Petition. It is pertinent to note that the tenant while adducing evidence as RW1, has admitted that he is running another business by the name N.P. Wood Work at Chirakal Panchayath on a partnership basis along with his son and the license pertaining to the said business is in his name. In view of the above, the finding of the Rent Control Court that the respondent-tenant failed to prove that he is entitled to the protection of the provisos to Section 11(3) of the Act is perfectly legal and sustainable. 10 R.C.Rev.No.301 of 2019 Even the Appellate Authority did not have a different view regarding those aspects. 11. The Appellate Authority also entered a finding that there is sufficient pleading in the petition with respect to dependency, as envisaged under Section 11(3) of the Act. It was also found by the Appellate Authority that even though the tenant contended that the petitioner-landlord is in possession of several other vacant shop rooms suitable for the proposed business of PW1, the tenant has not produced any evidence to prove the said contention before the Rent Control Court. Even after entering the findings as stated above, only based on Exhibit-B1 property tax assessment register produced by the respondent-tenant before the Appellate Authority, the order of eviction granted by the Rent Control Court was interfered with. 12. A party to a proceeding has no unbridled right to adduce evidence when the matter is pending in appeal. It is controlled and circumscribed by the conditions prescribed under Rule 27 of Order XLI of the Code of Civil Procedure, 1908. Going by the provisions of Order XLI, Rule 27 C.P.C, additional evidence could be produced before the Appellate Court only if the trial court refused to admit the said evidence 11 R.C.Rev.No.301 of 2019 or the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after exercise of due diligence, be produced by him at the time when the decree appealed against has been passed and that, whenever additional evidence is allowed to be produced by the Appellate Court, the court shall record the reasons for its admission. It is the duty of the person seeking the introduction of additional evidence to plead and prove compliance with the conditions enumerated in Order XLI, Rule 27 C.P.C. 13. The Apex Court in **Arjun Singh v. Kartar Singh and Others [AIR 1951 SC 193]** while examining the scope of admitting additional evidence under Order XLI, Rule 27 C.P.C held that the discretion of the court to receive and admit additional evidence is not an arbitrary one, but a judicial one circumscribed by the limitations specified in Order XLI, Rule 27 C.P.C. and that, if additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case has to be decided as if it was non- 12 R.C.Rev.No.301 of 2019 existent. In **State of U.P. v. Manbodhan Lal Srivastava, [AIR 1957 SC 912]** the Apex Court held that additional evidence cannot be permitted to be adduced at the appellate stage to remove lacunae in presenting the case at the proper stage and to fill in gaps. The same view was reiterated by the Apex Court in **Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [AIR 1968 SC 933]** holding that, as the party did not attempt to prove the documents sought to be produced as additional documents before the court below, he has no right to produce additional evidence in appeal. In **Lekhraj Bansal v. State of Rajasthan and Another [(2014) 15 SCC 686]** the Apex Court held that a party to an appeal shall not be entitled to produce additional evidence in the appellate court unless the conditions stipulated under Order XLI, Rule 27 C.P.C are satisfied. In **Govindan v. Raman [1993 (1) KLT SN 16(C.No.22)]** this Court held that merely because a party produces additional evidence the court cannot jump to the conclusion that the case requires remand and fresh consideration by the lower court and that, the remand can only be in a situation where the party could not produce evidence despite his diligence or when it was not available at 13 R.C.Rev.No.301 of 2019 the time when the decree was passed, otherwise the remand may amount to misuse of the power vested in the court. This Court further held that, in a case where the party seeks production of additional evidence, he has necessarily to establish sufficient grounds envisaged in Order XLI, Rule 27 (1) (aa) C.P.C. In **Md. Saifur Rahman v. State of Assam and Others [AIR 1985 Gau 107]** when the question of adducing additional evidence before the Appellate Court came up for consideration, the court held that when no evidence was adduced by the defendant on the point, the question of permitting them to adduce extra or additional evidence does not arise at all and held that only on the establishment of the requisite essential elements prescribed in clause (aa) of Order XLI, Rule 27 C.P.C, a party can ask for the indulgence to adduce additional evidence. 14. Exhibit-B1 property tax assessment register pertains to the year 2004-2005, i.e., 7 years before the filing of the Rent Control Petition. The respondent-tenant did not produce the said document before the Rent Control Court even though it was a piece of evidence available at the stage of the trial. The Appellate Authority went wrong in accepting the additional 14 R.C.Rev.No.301 of 2019 evidence, Exhibit-B1, in total disregard of the mandate of Order XLI, Rule 27 C.P.C. Further, the property tax assessment register of the year 2004-2005 will be of no use to the respondent-tenant to prove that there were vacant rooms in the ownership of the petitioner when the Rent Control Petition was filed in the year 2012. 15. The evidentiary value of an entry in the property tax or house tax assessment register relating to occupancy or vacancy of a building in a proceeding for eviction under the Kerala Buildings (Lease and Rent Control) Act came up for consideration in **Panoli AliKutty (** supra **)** _._ The Full Bench categorically held that Section 26 of the Act is only a provision which enables the parties to a proceeding under sub-section (1) of Section 5 of the Act to let in evidence as to the rental value of buildings, as fixed by the local authority for the relevant period, for the purpose of levying property tax or house tax, as the case may be, by producing certified copies of the extracts from the property tax or house tax assessment book of the local authority and that, the scheme of the Act does not indicate that the legislature intended the parties to a proceeding for eviction under the Act to prove the vacancy or 15 R.C.Rev.No.301 of 2019 occupancy of a building by producing certified extracts of the property tax or the building tax assessment book of the local authority. 16. The upshot of the above discussion is that in the facts and circumstances of this case the Rent Control Appellate Authority was wrong in interfering with the finding of the Rent Control Court and remitting the matter for reconsideration solely based on Exhibit-B1 building tax assessment register produced in the appellate proceedings. We, therefore, allow this Rent Control Revision Petition by setting aside the judgment of the Rent Control Appellate Authority (Additional District Judge IV), Thalassery, in R.C.A.No.173 of 2012 dated 19.03.2019 and restore the order of the Rent Control Court (Principal Munsiff), Kannur, in R.C.P.No.45 of 2012 dated 26.07.2012. 17. However, taking into consideration the fact that the respondent tenant is running a ration shop in the petition scheduled building and the situation prevailing in the country on account of the COVID-19 pandemic, we are inclined to accept the request of the respondent-tenant for grant of time to surrender vacant possession of the petition scheduled shop 16 R.C.Rev.No.301 of 2019 room. Six (6) months time is granted to the respondent-tenant to surrender vacant position of the petition scheduled shop room to the revision petitioners-landlords, subject to the following conditions: i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition scheduled shop room to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition scheduled shop room; ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; iii) Needless to say, in the event of the respondenttenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by 17 R.C.Rev.No.301 of 2019 this order to surrender vacant possession of the petition scheduled shop room will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. This Rent Control Revision is allowed as above. **ANIL K. NARENDRAN JUDGE** **VIJU ABRAHAM JUDGE** cks