Muhammed Kunhi & Fathimath Raheeda v. P. Kunhamad & P. Moideenkunhi (RCRev. No. 303 of 2012 & RCA.28/2011)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935** ## **RCRev..No. 303 of 2012 ()** ## **-------------------------RCA.28/2011 of RENT CONTROL APPELLANTE AUTHORITY (DISTRICT JUDGE) KASARAGOD** **IN RCP.16/2010 of RENT CONTROL COURT (MUNSIFF COURT),HOSDRUG** **REVISION PETITIONER/APPELLANTS/PETITIONER :** **------------------------------------------------------------------------** **1. MUHAMMED KUNHI, AGED 51 YEARS S/O.ABBAS MASTER, RESIDING AT BEKAL, PALLIKARE VILLAGE OF HOSDURG TALUK, REP.BY HIS POWER OF ATTORNEY HOLDER SUBAIR KUNNIL AGED 36 YEARS, S/O.LATE K.HAMZA HAJI, RESIDING AT BEKAL KUNNIL PALLIKARE VILLAGE OF HOSUDRG TALUK.** **2. FATHIMATH RAHEEDA, AGED 41 YEARS W/O.MUHAMMED KUNHI, RESIDING AT BEKAL, PALLIKARE VILLAGE OF HOSDURG TALUK** ## **BY ADV. SRI.SURESH KUMAR KODOTH** **RESPONDENTS/RESPONDENTS/RESPONDENTS :** **---------------------------------------------------------------------** **1. P.KUNHAMAD, AGED 56 YEARS S/O.ABDULLA, BUSINESS, POPOULAR HARDWARE, NORTH KOTTACHERRY, BALLA VILLAGE OF HOSDURG TALUK** **2. P.MOIDEENKUNHI, AGED 46 YEARS S/O.ABDULLA, BUSINESS, POPOULAR HARDWARE NORTH KOTTACHERRY, BALLA VILLAGE OF HOSDURG TALUK** **R1 & R2 BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-04-2013, ALONG WITH RCR. 304/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** **`T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.Nos.303/2012 & 304/2012 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9`[th] day of April, 2013** ## **`O R D E R`** ## **`Ramachandran Nair, J.`** Both these revisions arise from the same proceedings, namely, R.C.P.No.16/2010. The order passed in the rent control petition resulted in two appeals, namely, R.C.A.Nos.26/11 and 28/2011; R.C.A.No.26/2011 is filed by the respondents-tenants and R.C.A.No.28/2011 is filed by the petitionerslandlords; and a common Judgment has been passed against which the landlords have filed separate revision petitions here. 2. The landlords claimed eviction under Sections 11(2), 11(3)and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). The facts of the case show that the building bearing door Nos.KMC.W.1/105A to 105G of Kanhangad Municipality have been taken by the tenants allegedly as per agreement dated 21/08/1996. According to the landlords, the same is executed in favour of an agent by name Shri K.M.Sali. After expiration of the ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:2:-** contract period, a power of attorney holder named Shri Subair Kunnil was appointed for collection of rent. With regard to the rate of rent, it was fixed as `.13,500/- as per the said agreement which was enhanced after expiry of the stipulated period of two years. It is claimed that the tenants are liable to pay rent at the rate of `.19,000/- per month. 3. Regarding the _bona fide_ need pleaded, we find that the averment is that the second petitioner _bona fidely_ require the building to start a business in furniture. The Rent Control Court allowed the plea under Section 11(2) of the Act and rejected the plea under Section 11(3) of the Act. Both the tenants and landlords filed separate appeals against the order of the Rent Control Court. 4. We heard learned counsel for the petitioners Shri Suresh Kumar Kodoth and Shri Jawahar Jose learned counsel appearing for the respondents. 5. At the outset, learned counsel for the petitioners submitted that both the authorities have failed to have a proper approach in the matter. According to the learned counsel, the plea under ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:3:-** Section 11(3) of the Act has been brushed aside on the face of certain findings which cannot be supported in accordance with law. It is submitted that the second petitioner was examined as PW2 and has clearly spoken about the _bona fide_ need. PW1 who is the brother of the second petitioner has also been examined. According to the learned counsel, the rate of rent ought to have been accepted in the light of the production of agreement in evidence, between the parties. It is submitted that the same was rejected only on the finding that it is an unregistered one. Learned counsel for the petitioners submitted that the document has not been marked in evidence stating that it has been executed only in a `.50/- paper stamp paper. Therefore, the contention is that even if it is a document with deficit stamp, the same should have been impounded and dealt with accordingly. The court should have allowed the parties to to rely on the document for collateral purposes, especially, rate of rent which is permissible under law. 6. We have perused the orders passed by the authorities below. We will first come to the plea for ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:4:-** eviction under Section 11(3) of the Act. The Rent Control Court considered the matter in para.9. After referring to the evidence of PW2, it was observed that even though she intends to start a business of wooden furniture, in the cross-examination, she deposed that she did not know the rate of wood and also the wages of the workers. She could not say the exact measurement of the wood items required for making a furniture. She also deposed that she had no prior experience and knowledge for doing any business. The Rent Control Court, therefore, observed that no preparations and circumstances are there on the side of PW2 to prove that she is in _bona fide_ need of petition schedule premises for her business. Accordingly, it was concluded that it is only a mere desire rather than a _bona fide_ need. 7. When the Appellate Authority considered the matter, these items of evidence have again been analysed. Even though it was pleaded before the Appellate Authority that the evidence of PW1 will also lend support to the genuine _bona fide_ need pleaded by PW2, the Appellate Authority was also of the view that ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:5:-** PW1 has not explained that he will lend support to PW2 to do business. Even though, learned counsel for the petitioners submitted that evidence of PWs.1 and 2 if read together will establish the _bona fide_ need pleaded and, even though we have scanned through the evidence, we find no reason to vary from the findings rendered by the Rent Control Court and the Appellate Authority. 8. The Rent Control Court has entered the finding that PW2's need appears to be only in the form of a desire because of the lack of details in her deposition before the court. A person who intends to do a business cannot plead ignorance of the various aspects considering the business, the manner in which business is to be conducted and other details. The learned counsel for the petitioners argued for a reconsideration of the matter but we find that no other evidence is there except that of PW1. Even though we read through the deposition of PW1, we find that PW1 also has not elaborated on the details, especially, with regard to the support he may give to the second petitioner herein for conducting the business. Therefore, we are clearly of the view that except by ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:6:-** stating that she wants to have a business, she has not been able to prove it to the satisfaction of the fact finding authorities that a desire has matured into a genuine _bona fide_ need. Hence we confirm the findings. 9. As far as the second issue is concerned, the evidence in the form of documents produced by both sides and both parties have advanced their pleas. The Rent Control Court and the Appellate Authority mainly refused to consider the agreement as it is an unregistered one. Learned counsel for the petitioners relied upon the decision of a Division Bench of this Court in _**Aniyan v. Raveendran**_ **[2012 (4) KLT 786]** . The Bench speaking through one of us ( _A.V.Ramakrishna Pillai, J._ ), has considered the provisions of the Registration Act under Section 17 and in para.20, it has been held that the trend of judicial opinion is to the effect that unregistered documents which are compulsorily registrable under Section 17 of the Registration Act can be looked into only for collateral purposes. Collateral purpose has a limited scope and meaning. The purposes which are collateral and which are not collateral have been explained by the ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:7:-** Bench. One of the items under para.(c) under the head purposes which are collateral in nature is “for ascertaining the commencement of possession, rate of rent etc”. Therefore, the learned counsel is right in submitting that as far as the rate of rent is concerned, the document can be relied upon for collateral purposes. Of course, the acceptability of the plea is a matter for the court to consider. 10. We find from the orders that the document was not impounded but on the finding that it is unregistered, it was not looked into. The court could have taken an action for impounding the document and the matter could have been considered as to whether it can be gone into for collateral purposes. 11. After considering the matter in detail, we are of the view that the case can be sent back to the Rent Control Court itself for a re-consideration of the matter in the light of the observations made above and we do so accordingly. Both the parties are allowed to adduce further evidence also and all the items of evidence produced by both sides will be analysed by the Rent Control Court before entering a finding. ## **`R.C.R.Nos.303/2012 & 304/2012`** ## **-:8:-** 12. The tenant is in occupation of 7 rooms and the rent that is being paid seems to be of a total amount of `.6,000/- which appears to be too meagre in the light of the present day circumstances. Therefore, we are of the view that ends of justice will be served by directing the tenant as an interim measure to pay a monthly rent of `.15,000/- (Rupees fifteen thousand only) from 01/05/2013 onwards. We also make it clear that it is upto the court to fix the real rate of rent and the above fixation is only as a temporary measure. This will not have any reflection on the claims of both the parties. Once the rate of rent is fixed by the court, it will consider the liability of the tenant for payment of any arrears. Parties will appear on 03/06/2013. There will be a direction to expedite trial. The revision petitions are accordingly, disposed of. Sd/- ## **`(T.R. Ramachandran Nair, Judge.)`** Sd/- ## **`(A.V. Ramakrishna Pillai, Judge.)`** ``` ms ```