Manoj & Neethu Sudarsan v. Salam, Saly, Sakeer and Sameer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA,** ## **1943** ## **OP (RC) NO. 93 OF 2021** **AGAINST THE ORDER DATED 27.08.2021 IN R.P.NO.3 OF 2020 IN I.A NO.8348/2019 IN R.C.P NO.89/2018 OF RENT CONTROL** **COURT(MUNSIFF), ERNAKULAM - ORIGINAL PETITIONERS/PETITIONERS/PETITIONERS/RESPONDENTS TENANTS:** **1 MANOJ AGED 53 YEARS S/O SREEKUMAR, THAZHAVILA HOUSE, KALAMACHAL.P.O, ANCHAL, VAMANAPURAM, THIRUVANANTHAPURAM, NOW DOING BUSINESS AT DOOR NO.33/593, KADAVIL MANSION, EDAPPALLY TOLL, ERNAKULAM.** **2 MRS.NEETHU SUDARSAN, W/O.SUDARSAN, SIVA PATHMAM, 31/217, PEECHINGAPARAMBU ROAD, EDAPPALLY NORTH, ERNAKULAM, DOOR NO.33/593 (OLD NO.620/B7KALAMASSERY MUNICIPALITY, KADAVIL MANSION, EDAPPALLY.P.O, TOLL JUNCTION, ERNAKULAM-682024. BY ADVS. K.G.CLEETUS PETERLAL** ## **- RESPONDENTS/RESPONDENTS/RESPONDENTS/PETITIONERS LANDLORDS:** **1 SALAM AGED 55 YEARS S/O.T.K.KUNJUMOIDEEN, POOVATHUMMOTTIL HOUSE, EDAPPALLY.P.O, TOLL GATE, ERNAKULAM-682024.** 2 O.P.(RC) No.93 of 2021 **2 SALY, AGED 51 YEARS S/O.T.K.KUNJUMOIDEEN, POOVATHUMMOOTTIL HOUSE, EDAPPALLY.P.O, TOLL GATE, ERNAKULAM-682024.** - **3 SAKEER, AGED 47 YEARS S/O.T.K.KUNJUMOIDEEN, POOVATHUMMOOTTIL HOUSE, EDAPPALLY.P.O, TOLL GATE, ERNAKULAM-682024.** - **4 SAMEER, AGED 42 YEARS S/O.T.K.KUNJUMOIDEEN, POOVATHUMMOOTTIL HOUSE, EDAPPALLY.P.O, TOLL GATE, ERNAKULAM-682024.** **BY ADVS. JOBY JACOB PULICKEKUDY ANIL GEORGE** **THIS OP (RENT CONTROL) HAVING FINALLY HEARD ON 15.11.2021, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.93 of 2021 ## **J U D G M E N T** ## Ajithkumar, J The petitioners are the respondents-tenants in the R.C.P. No.89 of 2018 on the file of the Rent Control Court(Munsiff), Ernakulam. They filed interlocutory application No.8348 of 2019 in the RCP for appointment of a commission. That application was allowed as per Ext.P4 order dated 07.01.2020 in part. Since a few queries were disallowed, the petitioners filed Review Petition No.3 of 2020. The Rent control Court dismissed the review petition. This original petition, under Article 227 of the Constitution of India is filed challenging legality of Ext.P7, the order in the Review Petition. 2. The Rent Control Petition was filed by the respondents seeking eviction under Sections 11(2)(b), 11(4)(iii) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioners filed objections resisting the claim for eviction. They took up a contention with reference to the requirement of additional accommodation urged by the respondents, that the 4 O.P.(RC) No.93 of 2021 appellants are owners of two other shopping complexes in the locality and that the petition schedule room does not suit to the requirements of the respondents. The petitioners filed Ext.P3 commission application saying that a report regarding the matters mentioned therein are required to prove their defence pertaining to the plea for eviction under Section 11(8) of the Act. 3. The Rent Control Court, as per Ext.P4 order, allowed the application for appointment of commission. The Court however, found that query nos.(i),(ii),(iv),(vi),(viii) and (xiii) in Ext.A3 application could not be allowed. The petitioners took exception to that order and filed Ext.P5 Review Petition. They contended that answers to the said queries were also absolutely essential to prove their case and the Rent Control Court disallowed the said request without adverting to the real question in controversy in the case. Ext.P7 is the order on the Review Petition. Rent Control Court, relying on the decision in **Thomas B.Y@Sajimon v. Joseph B.Y [2020 (4) KLT 640]** , dismissed the Review Petition. 5 O.P.(RC) No.93 of 2021 4. Heard Adv.Sri.K.G.Cleetus, the learned counsel appearing for the petitioners and Adv.Sri.Joby Jacob Pulikkakudy, learned counsel appearing for the respondents. 5. The learned counsel appearing for the petitioners although contended that Ext.P4 order is wrong, he now insists to allow query nos.(i) and (vi) alone. In his view, those matters are absolutely necessary to prove his defense. Following are query nos.(i) and (vi): “(i) To ascertain and report the name of the persons occupied in Buildings XXXIII/593 housed in 'Kadavil Mansion”, Toll Junction, Edappally and the nature of business running therein. (vi) To ascertain and report the shop rooms used for the business in the name and style M/s.Dream Recording Studio, housed in the 2[nd] floor of Kadavil Mansion is belonged to petitioners and to report whether it is run by the petitioners themselves or not.” 6. The learned counsel appearing for the respondents 6 O.P.(RC) No.93 of 2021 contended that irrelevant facts were sought to be ascertained and the learned Rent Control Court rightly had disallowed the same. He would submit that the petitioners with the sole object of delaying disposal of the petition for eviction approached this Court. It may be noted that the respondents did not chose to object appointment of a Commission, before the Rent Control Court. Therefore the question needs to be considered is as to whether querry nos.(i) and (vi) posed in Ext.P3 application can be allowed or not. 7. Question no.(i) has two parts; to ascertain the name of the person occupying Building No. XXXIII/593, presumably of Kochi Corporation and, the nature of business being run in that building. The first part of the question is to ascertain who is in possession and occupation of the said building. What required to be ascertained in question No.(vi) is as to whether the business concern M/s.Dream Recording Studio housed in the 2[nd] floor of 'Kadavil Mansion' is owned and run by the respondents. Thus the first part of query no.(i) and query no.(vi) are to ascertain 7 O.P.(RC) No.93 of 2021 ownership and possession of building/shop rooms. 8. Ownership of an immovable property is a fact which needs to be proved by production of the title deed. If the commissioner is asked to ascertain and report as to the ownership of the buildings, what the commissioner can report is the oral account of the contents of documents; namely, the title deeds. 9. Section 63 of the Evidence Act defines secondary evidence. Fifth item in Section 63 is, ‘oral accounts of the contents ’ of a document given by some person who has himself seen it . Therefore, if an oral account of the contents of title deeds is included in the report of the commissioner, that is only secondary evidence and, naturally, the bar for admission of secondary evidence is attracted. Section 64 of the Evidence Act is based on the 'best evidence' rule, which is fundamental. Section 64 mandates that documents must be proved by primary evidence except in the cases where the secondary evidence is permitted. If the primary evidence is not available only, one is entitled to let in secondary evidence. In other words, on establishing the 8 O.P.(RC) No.93 of 2021 foundation for entitling production of secondary evidence as enumerated in Section 65 alone, one can adduce secondary evidence to prove a fact. 10. Secondary evidence is permitted only in compliance to section 65 of the Evidence Act. Section 65(a) reads thus:- “65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:— (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;” 11. There is absolutely no such situation in this case. It may further be noted that Section 91 of the Evidence Act insists that in all cases in which any matter is required by law to be 9 O.P.(RC) No.93 of 2021 reduced to the form of a document, no evidence shall be given in proof of that matter except the document itself or secondary evidence of its contents, in case in which the secondary evidence is admissible under the provisions contained in the Act. As per Section 17 of the Registration Act, 1908 all non-testamentary instruments which create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property shall be registered. Therefore, the title documents referred to above are documents coming within the purview of Section 91 of the Evidence Act. 12. The law on the point has been elucidated by the Apex Court in **Tukaram S. Dighole v. Manikrao Shivaji Kokate [(2010) 4 SCC 329]** . The Court explained when secondary evidence can be permitted to prove contents of a document. It was held, “Chapter V of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that the contents of documents may be proved either by primary or by secondary evidence. As per Section 62 of the Evidence Act, primary evidence means the 10 O.P.(RC) No.93 of 2021 document itself produced for the inspection of the Court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following Sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non - production of primary evidence is satisfactorily proved” 13. Going by the said principle of law, the petitioner has no right to adduce secondary evidence, that is to say, oral accounts of the contents of the title documents to prove ownership of the buildings. 14. The Rent Control Court took the view that for ascertaining possession of the building/shop room no commission can be deputed. For that, the Rent Control Court placed reliance on **Thomas B.Y.(supra)** . The question there was whether a commission can be deputed to ascertain and report to the Court as to who among the plaintiff and the defendant to the suit has been in possession of the disputed property. The Court after referring to **D.Kuttiyappan and others v. Meenakshi Ammal** 11 O.P.(RC) No.93 of 2021 ## **Polytechnic unit of Meenakshi Ammal Trust and others** **[2005 (4) MLJ 592]** held that an Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment of an immovable property. 15. A Commissioner can ascertain as to who is in possession and enjoyment of a building by either verifying the relevant document or asking to persons having knowledge about such possession. When the Commissioner makes a report on the basis of the information gathered from others, that is only hearsay information. Hearsay is no evidence and it is hit by Section 60 of the Evidence Act. As held in **Retnamma and others v.** ## **Mehaboob and others [2013 (2) KHC 670 : 2013 (2) KLT** **648]** facts which are inadmissible in evidence as hearsay cannot be admitted in evidence under the shield of Order XXVI, Rule 10(2) of the Code. In view of what is stated above, we are of the view that the questions posed for ascertaining the ownership and possession of building/shop rooms cannot be allowed. We are, however, of the 12 O.P.(RC) No.93 of 2021 view that the Commissioner can be asked to ascertain the second part of query no.1 which is to ascertain the nature of business in Building No.XXXIII/593, housed in the Building Complex named ‘Kadavil Mansion’. To that extent, Ext.P3, order in I.A.No.8348 of 2019 and P7, order in R.P.No.3 of 2020 in I.A.No.8348 of 2019 in R.C.P.No.89 of 2018 are modified. The Rent Control Court will issue direction to the Commissioner in the said terms. The original petition is disposed of accordingly. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/P.G. AJITHKUMAR JUDGE** PV 13 O.P.(RC) No.93 of 2021 ## **APPENDIX OF OP (RC) 93/2021** - **PETITIONER EXHIBITS Exhibit P1** **Exhibit P2** **TRUE COPY OF THE R.C.P.NO.89/2018 ON THE FILE OF RENT CONTROLLER, ERNAKULAM DATED 23.5.2018.** - **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN DATED 15.11.2018 IN R.C.P.NO.89/2018** **Exhibit P3 TRUE COPY OF THE COMMISSION APPLICATION I.A.NO.8348/2019 IN R.C.P.NO.89/2018 DATED 19.11.2019 ON THE FILE OF RENT CONTROLLER, ERNAKULAM.** - **Exhibit P4 TRUE COPY OF THE ORDER DATED 7.1.2020 IN I.A.NO.8348/2019 IN R.C.P.NO.89/2018 OF THE RENT CONTROLLER,ERNAKULAM** - **Exhibit P5 TRUE COPY OF THE REVIEW PETITIONER R.P.NO.3/2020 OF THE RENT CONTROLLER, ERNAKULAM DATED 23.2.2020.** - **Exhibit P6 TRUE COPY OF THE OBJECTION DATED 28.2.2020 FILED BY THE RESPONDENTS IN R.P.NO.3/2020 ON THE FILEOF RENT CONTROL COURT, ERNAKULAM** - **Exhibit P7 TRUE COPY OF THE ORDER DATED 27.8.2021 IN R.P.NO.3/2020 IN I.A.NO.8348/2019 IN R.C.P.NO.89/2018 OF THE THIRD ADDL.MUNSIFF & RENT CONTROLLER, ERNAKULAM.**