Lalu Mathew v. Bino Alexander

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 O.P.(RC) NO.17 OF 2022** **AGAINST THE ORDER DATED 12.01.2022 IN I.A.NO.4 OF 2021 IN R.C.A.NO.1 OF 2020 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I),** ## **MAVELIKKARA** ## **PETITIONER/APPELLANT:** **LALU MATHEW AGED 47 YEARS, S/O.JOHN MATHEW, VALIYA MANNIL (H), KEEZHVAIPOORU MURI, MALLAPPALLY VILLAGE, CHENGANNUR, PATHANAMTHITTA.** **BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. AMAL AMIR ALI** ## **RESPONDENT/RESPONDENT:** **BINO ALEXANDER** **AGED 46 YEARS, S/O.C.D.ALEXANDER, CHIRAMEL PUTHENVEETTIL, THITTAMEL MURI, CHENGANNUR VILLAGE, ALAPPUZHA - 689 121.** **BY ADV N.ASHOK KUMAR** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 16.03.2022, THE COURT ON 24.03.2022 DELIVERED THE FOLLOWING:** 2 O.P.(RC) No17 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner is the appellant in R.C.A.No.1 of 2020 pending before the Rent Control Appellate Authority (Additional District Court-I), Mavelikkara. He has filed I.A.No.4 of 2021 in the appeal under Order XXVI, Rules 9 and 10A read with Section 94(e) of the Code of Civil Procedure, 1908, seeking appointment of a commission. The application was dismissed by the Appellate Authority on 12.01.2022 as per Ext.P6 order. Challenging the legality of the said order, this original petition has been filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. The respondent filed R.C.P.No.4 of 2017 before the Rent Control Court (Munsiff), Chengannur, seeking eviction of the petitioner under Section 11(3) of the Act. The claim of the respondent was that he wanted the petition schedule shop room, which has an area of about 750 sq.ft. and situated in the ground floor of a three-storied building, for the purpose of 3 ## O.P.(RC) No17 of 2022 starting a computer shop and to run a dental clinic by his wife, who is a dental surgeon. The petitioner resisted the petition for eviction on various grounds as contained in Ext.P2 objection. The Rent Control Court, after trial, ordered eviction, a copy of which is produced as Ext.P3. The said order is under challenge in R.C.A.No.1 of 2020 filed by the petitioner. 3. The petitioner, on the basis of the contention that during the pendency of the appeal the first floor area in the building, having a plinth of above 1800 sq.ft. fell vacant, filed I.A.No.4 of 2021. Ext.P4 is the copy of the said application. The respondent filed an objection contending that it was quite unnecessary to appoint a commission as he admits that the first floor which was earlier occupied by M/s Kosamattom Finance was surrendered to the respondent three months before. The Appellate Authority on observing that in order to decide the dispute involved in the appeal a report as sought in Ext.P4 application was unnecessary and the application was only an attempt to delay the proceedings in the appeal, dismissed it as per Ext.P6 order. 4 O.P.(RC) No17 of 2022 4. On 21.01.2022, this petition was admitted and notice was directed to be issued to the respondent. Proceedings in the R.C.A.No.1 of 2020 was stayed for a period of one month and the order has been extended from time to time. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. The contention of the petitioner is that considering the need urged by the respondent, the first floor area now remains vacant is very much suitable for that purpose. It is also submitted that in the nature of the rival contentions, it is absolutely necessary to ascertain whether both the upper floors in the building are available vacant, the area of the said portions of the building and such other matters. The learned counsel further would contend that although a subsequent event, the first floor getting vacant has a bearing on the need urged by the respondent, and therefore, appointment of a commission during the appellate stage has become inevitable. 5 ## O.P.(RC) No17 of 2022 In order to substantiate his contention that such subsequent events can be brought in evidence, he placed reliance on **Hasmat** **Rai and another v. Raghunath Prasad [(1981) 3 SCC 103]** and **Sheshambal (dead) through LRs. v. Chelur Corporation Chelur Building and others [(2010) 3 SCC 470]** . 7. It was further contended that the Appellate Authority has powers in the matter of enquiry in an eviction proceedings as that of the Rent Control Court for which the learned Counsel relies on the decisions in **Irvin Johan Jayarajan v. Madhavi @ Narayani Amma and others [2009 (3) KLT SN 46]** and **Kunhammed Koyam v. M/s Nallalam Saw Mills and others [2010 (4) KLT 79]** . Yet another point raised by the learned counsel for the petitioner is that the landlord has no unfettered right to choose whatever premises he wants, and therefore, the availability of vacant possession of the first floor area in the building has a decisive relevance and in that regard, he placed reliance on Janatha **Drugs v. Maithri Construction and others [2007 (4) KLT 625]** . 6 O.P.(RC) No17 of 2022 8. The learned counsel for the respondent, on the other hand, would contend that the bona fide need of the landlord has to be decided with reference to the purpose for which he demands the building, and therefore, the fact that the first floor area got vacated, has no relevance in this case. It is submitted that the first floor of the building was constructed in such a manner that it could be occupied by some banking institutions only and therefore non-occupation of the same by the respondent for the projected need of starting a computer business and running a dental clinic is quite justified. 9. The matters required to be ascertained in Ext.P4 commissioner application are the following: '(1) To ascertain and report regarding the vacant two floors situated on the first and second floor on the petition schedule building. (2) To ascertain and report regarding the floor area of the above mentioned first and second floors situated on the petition schedule building. (3) To ascertain other matters which required by the appellant at the time of visit by the Advocate Commissioner.' 7 O.P.(RC) No17 of 2022 10. Although, it is stated in the affidavit filed in support of Ext. P4 application that the first floor and second floor in the building are now vacant, what is asserted during the course of arguments is that the first floor was surrendered to the respondent by the tenant. It is not stressed that the second floor in the building is lying vacant. In the objection filed by the respondent, Ext.P5, it is categorically admitted that the first floor earlier occupied by M/s Kosamattom Finance is now vacant. It is however asserted that the second floor is occupied by a computer shop. 11. Having heard both sides and considered the materials on record, we find that the first floor in the threestoried building was surrendered to the respondent by the tenet during pendency of R.C.A.No.1 of 2020. 12. In **Hasmat Rai (supra)** the Apex Court held that, if the tenant is in a position to show that the need or requirement of the landlord no more exists because of some subsequent event, it would be open to the tenant to point out such events and the court, including the Appellate Authority, 8 ## O.P.(RC) No17 of 2022 has to examine, evaluate and adjudicate the same. Similarly, in **Sheshambal (supra)** , the Apex Court held that while the position is that the right to relief in a litigation must be judged by reference to the date of commencement of the proceedings, it is equally true that if subsequent to the commencement of the litigation, certain developments take place that have a bearing on the right to the relief claimed by the party, such subsequent events cannot be shut out from consideration. In view of that legal position, the Appellate Authority is expected to examine the fact pointed out by the petitioner as to whether the same has an impact on the relief claimed by the respondent. Such a contention cannot simply be brushed aside as a subsequent event. 13. This Court in **Irvin John Jayarajan (supra)** held that 'the power of the Rent Control Appellate Authority and the Rent Control Court to permit adduction of evidence and hold enquiries are coterminous. Whatever power the Rent Control Court has to receive evidence, the Appellate Authority also has.' As regards the powers of the Appellate Authority 9 O.P.(RC) No17 of 2022 while dealing with an appeal, this court again in **Kunhammed Koya (supra)** held that being Appellate Authority under Section 18 of the Act, which has power co-equal with Rent Control Court in the matter of adduction of evidence, the Appellate Authority has power to permit adduction of evidence if parties are desirous. 14. In the light of the above said principle, it is clear that the Appellate Authority, in exercise of its powers under Section 18(2) of the Act, can issue a commission, provided the matters sought to be ascertained have relevance and calling for such a report is necessary. ## 15. This Court in **Janatha Drugs (supra)** held that,- '9. xx xx xx if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the 10 O.P.(RC) No17 of 2022 landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate.” 16. The fact that the entire first floor area of the building fell vacant during pendency of the Appeal certainly has relevance while deciding the matter in dispute. But, what are sought to be ascertained as per Ext.P4 commission application are not disputed facts. The purpose of calling for a report through a commission is elucidation of some matter which is in dispute. Here the fact that the first floor of the building belonging to the respondent was surrendered by the tenant during the pendency of R.C.A.No.1 of 2020 is not a disputed fact. The floor area of that portion is about 1800 sq.ft. and that fact, again, is not in dispute. As held in **Janatha Drugs (supra),** it is for the landlord to establish that the premises, which is vacant, is not suitable for the purpose of his occupation or for the purpose for which he 11 O.P.(RC) No17 of 2022 requires the premises. Taking into account those aspects of the matter, it cannot be said that a commission as requested in Ext.P4 application, at the instance of the petitioner-tenant, is required to be deputed. The Appellate Authority is empowered to appoint a commission, is not a justification for appointment of a commission. What is decisive is whether such a report is necessary to take a just decision in the case. The Appellate Authority has considered the requirement of such a report and holding that it was unnecessary, the application was dismissed. We are of the view that the Appellate Authority rightly had dismissed the said application. We do not feel that the said finding is wrong or an erroneous exercise of jurisdiction requiring this Court to interfere by invoking jurisdiction under Article 227 of the Constitution of India. The original petition is accordingly dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(RC) No17 of 2022 ## **APPENDIX OF OP (RC) 17/2022** ## **PETITIONER EXHIBITS** **Exhibit P1** **TRUE COPY OF THE PETITION IN RCP NO.4/22017 BEFORE THE RENT CONTROL COURT, CHENGANNOOR.** - **Exhibit P2 TRUE COPY OF THE OBJECTION FILED IN RCP NO.4/2017 BEFORE THE RENT CONTROL COURT, CHENGANNOOR.** **Exhibit P3** **TRUE COPY OF THE ORDER DATED 28/10/2019 OF THE RENT CONTROL COURT, CHENGANNOOR.** **Exhibit P4** **TRUE COPY OF THE IA NO.4 OF 2021 IN RCA NO.1 OF 2020 BEFORE THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA.** **Exhibit P5** - **TRUE COPY OF THE OBJECTION FILED IN IA NO.4 OF 2021 IN RCA NO.1 OF 2020 BEFORE THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA.** **Exhibit P6** - **TRUE COPY OF THE ORDER DATED 12/01/2022 IN IA NO.4 OF 2021 IN RCA NO.1 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA.** - **Exhibit P7** **TRUE COPY OF I.A.NO.5 OF 2022 DATED 15.03.2022 FILED BY THE PETITIONER IN R.C.A.NO.1 OF 2020 BEFORE THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA.** 13 O.P.(RC) No17 of 2022 ## **RESPONDENT EXHIBITS** **Exhibit R1(A) TRUE COPY OF THE LETTER DATED 09.05.1996 ALONG WITH SPECIFICATION FOR THE CONSTRUCTION OF STRONG ROOM ISSUED BY THE BANK OF MADURA LTD. TO THE RESPONDENT/LANDLORD.** **Exhibit R1(B) TRUE COPY OF THE TERMINATION OF LEASE AGREEMENT ISSUED BY THE ICICI BANK DATED 31.05.2022 TO THE RESPONDENT/LANDLORD. Exhibit R1(C) TRUE COPY OF THE VACATING LETTER DATED 01.07.2021 ISSUED BY KOSAMATTOM FINANCE LTD. TO THE RESPONDENT/LANDLORD. Exhibit R1(D) TRUE PHOTOGRAPHS OF THE PETITION SCHEDULE BUILDING AND THE 1ST FLOOR AREA CONTAINING STRONG ROOM & LOCKER FACILITY.**