N.T. Thomas v. Suresh Pai

**RCRev..No.317 OF 2019** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941** **RCRev..No.317 OF 2019** **AGAINST THE ORDER IN RCP 10/2015 DATED 15-12-2016 OF MUNSIFF COURT, CHANGANACHERRY** **AGAINST THE JUDGMENT IN RCA 6/2017 DATED 10-06-2016 OF ADDITIONAL DISTRICT COURT,KOTTAYAM** **- REVISION PETITIONER APPELLANT IN RCA/COUNTER PETITIONER IN RCP:** **N.T.THOMAS (WRONGLY SHOWN AS M.T. THOMAS IN THE JUDGEMENT IN R.C.A) AGED 62, S/O. THOMAS, NELLIPPALLIL HOUSE, RUBI NAGAR, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, (UNION UPHOLSTERY, CHANGANASSERY). BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER SMT.MEERA P.** **RESPONDENT/-RESPONDENT IN RCA/PETITINER IN RCP:** **SURESH PAI AGED 53, S/O. MOHANDAS, SREENIVASA BUNGLOW, VAZHAPPALLTY EAST MURI, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 001 R1 BY ADV. SRI.T.P.PRADEEP R1 BY ADV. SRI.S.SREEDEV R1 BY ADV. SRI.P.K.SATHEES KUMAR R1 BY ADV. SMT.NITHYA VIJAYAN R1 BY ADV. SMT.MINIKUMARY M.V. R1 BY ADV. SRI.K.RAMACHANDRAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13-12-2019, THE COURT ON 31-01-2020 PASSED THE FOLLOWING:** **RCRev..No.317 OF 2019** **2** **“C.R.”** ## **ORDER** ## **Dias,J.** The revision petitioner is the appellant in RCA No.6 of 2017 of the Rent Control Appellate Authority ( for brevity hereinafter referred to as 'Appellate Authority'), Kottayam. The respondent in this Rent Control Revision is the respondent in the above appeal. 2. This rent control revision is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Changanassery in RCP No.10/2015. The parties are for the sake of convenience, referred to as per their litigate status in this rent control revision as 'revision petitioner' and 'respondent.' **RCRev..No.317 OF 2019** **3** 3. The respondent had filed the rent control petition ( hereinafter referred to as 'RCP') against the revision petitioner, through his wife and power of attorney holder Smt.Asha Pai, seeking an order of eviction of the petition schedule shop room (hereinafter referred to as 'shop room') under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'Act'). 4. The case of the respondent before the Rent Control Court, shorn of exhaustive pleadings, was as follows: the respondent's husband is the landlord of the shop room. The shop room is given on rent to the revision petitioner, who is running a business under the name 'Union Upholstery.' The monthly rent for the shop room is fixed at Rs.300/- per month. The shop room had devolved on the **RCRev..No.317 OF 2019** ## **4** respondent's husband by will deed bearing No.104/2003 of the Sub-Registry Office, Changanassery. The factum of inheritance was informed to the revision petitioner. From November 2013 onwards, the revision petitioner has stopped paying rent to the respondent and his wife. Thus, the revision petitioner has committed default in payment of rent. The respondent is employed abroad. It is the respondent’s wife who is managing the business for and on behalf of her husband. The shop room is needed for the respondent's wife's business. The respondent demanded the revision petitioner to give vacant possession of the shop room and to pay the entire arrears of rent. Despite issuing notice to the revision petitioner, he has refused to vacate the shop room. He also did not send any reply notice. The respondent’s wife is running a petrol pump. In connection **RCRev..No.317 OF 2019** **5** with the above business, she proposes to start a business of vehicle accessories. For the said the room is The purpose, shop required. respondent has no vacant buildings. There are other vacant rooms available in the locality, suitable for the revision petitioner to shift his business. So, no harm would be caused to the revision petitioner by shifting the business from the shop room. Hence the RCP is filed. 5. The revision petitioner contested the proceedings. He filed a written objection, _inter alia_ , contending as follows: He is conducting upholstery business in the shop room for over 40 years. The shop room was taken on lease by him from one Sri.Venketeswara Pai. He has denied the allegations in the RCP. He has also denied the allegation that he had taken the shop room from the respondent and his wife. It is his case that Sri.S.Venketeswara Pai and his wife **RCRev..No.317 OF 2019** **6** Manorama Pai were collecting rent from him. Venketeswara Pai was running a petroleum retail outlet. The respondent is the nephew of Venketeswara Pai. The respondent is working in Africa for the last 15 years. No valid notice terminating the lease has been issued. The shop room has an area of less than 100 sq.ft, which is not suitable for the respondent's business. The revision petitioner had sent rent by money order to the landlord, but the same was returned 'unaccepted.' Neither the respondent nor his power of attorney holder has demanded rent from the revision petitioner. The respondent is conducting a petrol pump in Changanassery, Kayamkulam, and other various places. He is a Mechanical Engineer by profession. The bona fide need projected by the respondent is only a ruse for eviction. 6. The revision petitioner further averred **RCRev..No.317 OF 2019** **7** that he is depending on the income derived from the business being conducted in the shop room. He needs an amount of Rs.10,000/- per month for his livelihood. He is suffering from renal colic, and the income derived from the business is insufficient to meet his medical expenses. There are no other shop rooms in the locality suitable to shift his business. Hence the RCP be dismissed. 7. The respondent's wife and the Advocate Commissioner were examined as PW1 and PW2. Exts.A1 to A10 were marked through PW1, and Ext.C1 report was marked through PW2. The revision petitioner was examined as DW1, and the Tahsildar was examined as DW2. Exts.B1 to B4 were marked through the revision petitioner. 8. The Rent Control Court, after evaluating the pleadings and evidence on record, ordered eviction under Section 11 (2)(b) and 11(3) of the **RCRev..No.317 OF 2019** **8** Act and directed the revision petitioner to put the respondent in possession within one from the date of order. 9. Aggrieved by the order passed by the Rent Control Court, the revision petitioner filed RCA No.6/2017 before the Appellate Authority. The Appellate Authority, after considering the pleading and evidence, by impugned judgment partly allowed the appeal. The Appellate Authority found that the revision petitioner had subsequent to the filing of the appeal, deposited the entire arrears of rent. Hence the order of eviction under Section 11(2)(b) of the Act was set aside. However, the order of eviction under Section 11(3) of the Act was upheld. The revision petitioner was granted four months’ time to vacate the shop room. 10. It is challenging the concurrent findings of the Rent Control Court and the Appellate **RCRev..No.317 OF 2019** ## **9** Authority ordering eviction under Section 11 (3) of the Act, that this Rent Control Revision is filed. 11. Heard Sri.P.B.Krishnan, the learned counsel for the revision petitioner and Sri.S.Sreedev, the learned counsel for the respondent. 12. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop room under Section 11(3) of the Act. According to him, the courts below have not evaluated the pleadings with the law in its proper perspective. The bone of argument was that, courts below have failed to consider that the RCP was not properly framed. According to him, the bona fide need of the respondent has not been pleaded in the RCP. The evidence of the power of attorney holder is not recognised under Section 11(3) of the Act. **RCRev..No.317 OF 2019** **10** The business of the respondent is being conducted by his power of attorney holder. The finding of the Appellate Authority that it is sufficient if the power of attorney holder verifies the rent control petition is wrong. 13. The learned counsel for the revision petitioner relied on the decision of the Hon'ble Supreme Court in _Joseph Mathew v. Jose Thomas [2005 (4) KLT 764 (SC)], and the decisions of this Court in Ratheesh Kumar v. Jithendra Kumar [2005 (2) KLT 669] and Sudheer v. Raman Menon [2018 (1) KLT 791]_ to drive home his contention that in a petition filed under Section 11(3) of the Act, the evidence tendered by the power of attorney holder is insufficient and is fatal, and the petition is to be dismissed. 14. The learned counsel for the revision petitioner invited our attention to the pleadings in the RCP. He pointed out that the power of **RCRev..No.317 OF 2019** **11** attorney holder of the respondent, the respondent’s wife, has signed the RCP in the status of the respondent, and not as the respondent’s authorised agent. He also pointed out that in paragraphs 4 and 5 of the RCP, it is specifically averred that it is the power of attorney holder who needs the shop room for her business and not for any bona fide need of the respondent. There is also no plea that the power of attorney holder is a dependent on the respondent. Likewise, the power of attorney holder has described herself as the respondent in many places in the pleadings. He also argued that the landlord had refused to mount the box, and that he has failed to prove his state of mind, which is rudimentary in a petition under Section 11 (3) of the Act. The above omissions and latches are fatal and, therefore, the RCP is to be dismissed. **RCRev..No.317 OF 2019** **12** 15. Per Contra, the learned counsel for the respondent argued that the courts below have rightly appreciated the pleadings and evidence on record and have come to the legitimate conclusion that the respondent is in bona fide need of the building. According to the learned counsel, the argument that there is inconsistency in the pleading is a hyper-technical contention. The Appellate Authority has observed in paragraph 22 of the judgment that the pleadings must be liberally construed, and that a pedantic approach to defeat justice should be avoided. The learned counsel relied on the decision of the Hon'ble Supreme Court in _Ramkubai (Smt) deceased by Lrs & Ors v. Hajarimal Dhokalchand Chandak & Ors [(1999) 6 SCC 540]_ and the decisions of this Court in _Sivadasa Panicker v. Travancore Mats & Matting Co. [2009 (1)KLT 393], Muahmmed Jerees v._ **RCRev..No.317 OF 2019** ## **13** _Darunnajath Arabic College [2017(2)KHC 887 (DB)] and Ummer v. Ummu Habeeba [2018 (2) KLT 679]._ The learned counsel argued that the Honourable Supreme Court and this Court have declared the law that the non-examination of the landlord is not fatal to proceedings, and that the power of attorney holder of the landlord is competent to give evidence on behalf of her Principal. 16. The questions that emerge for consideration in this Rent Control Revision are: (i) Whether the landlord or his dependent has to be examined in a proceeding for eviction filed under Section 11(3) of the Act? (ii) Can the pleadings be signed by the power of attorney holder in an individual capacity without stating that she is the agent of the landlord? (iii) Whether there is any irregularity or impropriety in the order **RCRev..No.317 OF 2019** ## **14** and judgment passed by the courts below concurrently allowing the respondent's prayer for eviction under Section 11(3) of the Act? 17. As the above points are interrelated, we deem it appropriate to consider them together. 18. The Honourable Supreme Court in _Joseph Mathew (_ supra), has declared the law that, in a case where the landlord has not examined himself as a witness, instead his power of attorney and son was examined, the same is insufficient, particularly when there is absence of pleadings that the landlord required the premises for his son. Nevertheless, the Supreme Court permitted the landlord to withdraw the eviction proceedings with liberty to file a fresh original petition on the same cause of action. 19. The Honourable Supreme Court arrived at its conclusions based on the ratio decidendi in **RCRev..No.317 OF 2019** ## **15** _Janki Vashdeo Bhojwani v Indusind Bank Ltd & Ors [2005 (2) SCC 217],_ wherein it is laid down that a general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. It was further held that no one can delegate the power to appear in the witness box on behalf of himself, and to appear in a witness box is altogether a different act inasmuch as a general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 20. In _Ramkubai (supra)_ the Honourable Supreme Court held that where the eviction on the ground of bona fide need was for the purpose of carrying on the business of the son, who was the landlady’s power of attorney holder, it was sufficient that power of attorney holder son deposed as a witness. **RCRev..No.317 OF 2019** ## **16** 21. Following _Janki Vashdeo Bhojwani (supra)_ a Division Bench decision of this Court in _Ratheesh Kumar (supra),_ held that _“_ where a party to the suit does not appear in the witness box and states his own case on oath and does _-_ not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.” The power of attorney holder can appear only in his personal capacity and cannot appear on behalf of the party in the capacity of that party. _Bona fide_ means, the state of mind. **That state can be manifested the who only by person entertains a desire to have the building for his own occupation.** None of the persons who need the building has chosen to speak about his need. It was held that it could not, therefore, be said that either the landlord has established the need for own occupation or that the need **RCRev..No.317 OF 2019** ## **17** alleged was _bona fide._ The only person who can speak about his need is not examined. The finding of the Rent Control Court as well as the Appellate Authority based on the evidence of his brother suffer from the vice of a decision based on no evidence. The Division Bench also relied on the decision in _Vidhyadhar v. Manikrao [(1999) 3 SCC 573]_ , wherein the very same principles were laid down. 22. Another Division Bench decision of this Court in _Sudheer (supra) (rendered by one among us, Justice K.Harilal)_ has also held that unlike the bona fide employed under Section 11(3), 11(7) and 11(8) of the Act, the bona fides of the facts constituting the statutory requirement under Section 11(4)(iv) of the Act can be proved by other evidence, without examining the landlord himself. 23. Going by the averments in the RCP, it is **RCRev..No.317 OF 2019** ## **18** an undisputed fact that, the respondent filed the RCP through his wife, his power of attorney holder. The bona fide need projected by the respondent was for him, but the pleadings were to the contrary. Undisputedly, there is inconsistency in the pleading in the R.C.P. The respondent did not mount the box, but only his power of attorney holder gave evidence as PW1. Going by the ratio decidendi referred to in the above authoritative precedents, we have no doubt in our mind that the non-examination of the respondent who wants the shop room for his bona fide need and the conspicuous absence of pleadings that the power of attorney holder is a dependent of the respondent, the same are fatal to the RCP. 24. The decision of this Court in _Ummer (supra)_ , heavily relied by learned counsel for the respondent, where this Court held that in view **RCRev..No.317 OF 2019** **19** of Section 120 of the Evidence Act, the husband and wife of any party in a suit is a competent witness in a proceeding before the Rent Control Court, therefore, the non-examination of the husband is of no consequences. According to us, the decision has been pronounced without considering the law declared by the Supreme Court in _Joseph Mathew, Ramkubai, Vidhyadhar and Ratheesh Kumar (supra)._ Hence the said decision can in no way help the respondent. The other decision relied on by the learned counsel for the respondent is _Muhammed Jerees (supra), which_ was rendered under Section 11(7) of the Act. This Court in _Sivadasa Panicker (supra)_ has held that there is a difference between the bona fide need under Section 11(3) and 11 (4) (iv) of the Act. Hence _Muhammed Jerees (supra)_ will also not support the respondent. **RCRev..No.317 OF 2019** **20** 25. Therefore, in view of the specific pleading in the RCP that the respondent needs the shop room for his own bona fide need, and that power of attorney holder has described herself as the respondent at many places in the R.C.P and further the refusal of the respondent to mount the box and give evidence to prove his case have all proved fatal. We are of the opinion that the concurrent findings of the courts below are erroneous, improper and irregular. The courts below have passed the judgment and order without considering the authoritative precedents on the question of the bona fide need under Section 11(3) of the Act. 26. Hence, we allow the rent control revision and set aside the impugned judgment and the order passed by the courts below in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. In the facts and **RCRev..No.317 OF 2019** **21** circumstances of this case, we deem it appropriate to grant liberty to the respondent to file a fresh rent control petition under Section 11(3) of the Act seeking an order of eviction against the revision petitioner. The parties shall bear their respective costs. Sd/- **K.HARILAL, JUDGE** Sd/- **C.S.DIAS,JUDGE** ma/30/1/2020 /True copy/ P.S to Judge **RCRev..No.317 OF 2019** **22**