O.K. Rayiz v. Puthiyapparambath Sreeja

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 RCRev..No. 349 of 2018 AGAINST THE JUDGMENT IN RCA 55/2012 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 31-05-2018 AGAINST THE ORDER/JUDGMENT IN RCP 30/2010 of RENT CONTROL COURT, KANNUR DATED 30-11-2011 ## REVISION PETITIONER/S: O.K.RAYIZ, AGED 41 YEARS S/O. MUHAMMED KUNHI, BUSINESS, O.K. REALTONES BUILDERS AND DEVELOPERS, 298B, LAWN APARTMENTS, T.K. JUNCTION, THANA, KANNUR DISTRICT. BY ADVS. SRI.P.U.SHAILAJAN SMT.D.N.NISHANI SMT.VIDYA KURIAKOSE SRI.M.SURESH KUMAR SRI.V.SREEJITH (K/1398/2000) ## RESPONDENT/S: PUTHIYAPARAMBATH SREEJA, D/O. JANARDHANAN, DENTIST, KANNUR AMSOM, KANNOKKARA DESOM, KANNUR TALUK, KANNUR DISTRICT - 670 012 BY ADVS. SRI.SHAJI THOMAS SRI.JEN JAISON SRI.K.BABU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR No. 349/2018 -2- ## **ORDER** ## K. Harilal,J. The sole question that arises in this revision petition is, has the revisional court, power under Section 20 of the Kerala Buildings (Lease and Rent Control) Act to entertain the interrogatories as provided under Order XI Rule 1 of CPC to bring out the subsequent events allegedly happened after the filing of the Rent Control Petition. 2. The revision petitioner herein is the tenant, who is confronting with an order of eviction passed by the Rent Control Court, Kannur under Section 11(3) of the Act in RCP No. 30 of 2010, which stands confirmed by the Appellate Authority, Thalassery in RCA No.55 of 2012. The parties are referred to as in the Rent Control Petition. According to the petitioner, both the petitioner and her husband are dental doctors by profession and now they are residing in the first floor of the building. Two rooms in the ground floor are in occupation of the respondent under the lease arrangement and he is conducting office of his consultancy firm. Now the petitioner has been conducting a clinic in a portion of the first floor, where she has been residing with her family. Her husband has been conducting Dental clinic at Chakkarakkal. Since Chakkarakkal is far away from the petitioner’s residence and the children are studying in Gems International School, Kannur, it has become necessary to shift RCR No. 349/2018 -3- the practice of the petitioner and her husband to Kannur. If the practice is not shifted to Kannur, it will adversely affect the studies of the children and also the practice of the petitioner and her husband as dental surgeon. So, they decided to start a dental clinic in the petition schedule room and the room adjacent to the petition schedule room. The petitioner has already initiated legal proceedings to get vacant possession of the room adjacent to the petition schedule room from the possession of the tenant, who occupies the said room. By utilizing the petition schedule room and the room adjacent to the petition schedule room, the petitioner and her husband can very well start a dental clinic. So, they decided to shift their practice completely from Chakkarakkal to Kannur. They have no other buildings of their own to run a dental clinic. Since the small room attached to the residence of the petitioner in the upstair portion is used as Dental Clinic, patients are facing inconvenience to reach the first floor as there is no lift facility. 3. The respondent resisted the claim for eviction contending that the need projected is not _bona fide_ . According to the respondent, the husband of the petitioner has been conducting a well established and a full-fledged dental Hospital at Chakkarakkal in a tenanted building. The construction of the Building for the clinic is going on at Chakkarakkal and that therefore there is no need to shift their practice to Kannur. So also, they contended that the children of the petitioner are not studying in RCR No. 349/2018 -4- Gems International School, Kannur and they have already completed their school education. 4. On the rival pleadings, both parties adduced evidence and considering the evidence on record, the Rent Control Court found that the need projected in the petition is _bona fide_ and the claim for eviction is not barred by the first proviso and the respondent is entitled to get protection under the second proviso. In appeal, the appellate authority also confirmed the said findings and dismissed the appeal. 5. In this revision petition, the learned counsel for the revision petitioner/respondent vehemently contended that the _bona fide_ need projected in the Rent Control Petition has become abated as they have got vacant possession of the entire second floor of the building and they have already shifted their residence from the first floor and the same was let out to another tenant. In order to bring out the aforesaid subsequent events, the petitioner has filed interrogatories as I.A. No. 3 of 2018 under Order XI Rule 1 of and Section 151 of CPC. 6. According to the revision petitioner/respondent, the question in the interrogatories are intended to bring out the fact that the petitioner has already shifted her residence from the first floor of the building and the same was let out to a new tenant and thereby, the entire first floor of the building is available to the petitioner for starting a dental clinic. In order to substantiate the maintainability of the interrogatories, the RCR No. 349/2018 -5- learned counsel placed reliance on _**Parthakumar P.M. v. Venugopalan**_ [2009(2) KHC 279] and contended that the Rent Control Court has power to entertain interrogatories in terms of Section 23 of the Act. Since the revision is also continuation of the suit, the Revisional Court can also entertain the interrogatories. In fact, we are afraid of the said submission, which has been put forward without understanding the purpose of interrogatories provided under Order XI of CPC in its correct perspective and jurisdictional difference between the trial court, appellate court and the revisional court. On an analysis of Order XI of CPC, it could be seen that the interrogatories are intended to elucidate the answers from the parties so as to narrow down the fact in issue and for enabling the parties to cross examine the opposite party on the basis of the answers given by them to the interrogatories. It is not a device to collect answers in evidence from the opposite party at any stage, whether it is an appeal or revision. We find that the interrogatories can be filed in the trial court only. It can never be entertained in a revision,which is confined to the legality, propriety and regularity of the findings of the courts below only. We have gone though the decision relied on by the petitioner. In that decision, this Court has held that the interrogatories can be entertained in a Rent Control Petition and that does not mean that it can be filed in the revision also. No purpose would be served by getting answers to the RCR No. 349/2018 -6- interrogatories in revision. It is trite law that the revisional court cannot be converted into evidence collecting forum. [ _**Kerala Sugar Agencies v. Jose**_ (1992 KHC 106)] As regards the subsequent events, it is trite law that in rent control proceedings, subsequent events having fundamental impact can be considered during the appellate stage also. But, it is for the parties to bring up any evidence regarding subsequent events, if it is having fundamental impact on the fact in issue, by resorting to Order XLI Rule 27 of the Code of Civil Procedure. We, however, find that even Order XLI Rule 2 cannot be resorted to in a revisional court. The revisional court cannot re-appreciate the evidence on factual findings unless the findings are perverse. 7. In the above view, I.A. No. 3 of 2018 filed under Order XI Rule 1 and Section 151 of the Code of Civil Procedure is liable to be dismissed in _limine_ and we do so. 8. Coming to the subsequent events having fundamental impact alleged in this revision petition, it is the case of the revision petitioner that the petitioner has already shifted her residence from the first floor of the building and now the entire first floor is available for running the Dental Clinic. Therefore, it appears that the _bona fide_ need itself has become abated, according to the learned counsel. In the above context, it is pertinent to note that in the Rent Control Petition itself, the petitioner has specifically pleaded that since the small room which is RCR No. 349/2018 -7- used by the petitioner as a dental clinic attached to the residence of the petitioner is in the upstair portion, patients are facing inconvenience to reach the first floor, since there is no lift facility. Going by the impugned judgment, it could be seen that when the petitioner was examined as PW1, she has stood by the pleadings in the Rent Control Petition. In view of the aforesaid pleadings, we find that even if the petitioner has shifted her residence from the first floor and the entire first floor is available to her, the same has no fundamental impact on the _bona fides_ of the need projected in the Rent Control Petition and it cannot be held that the need has become abated. The ground floor is always convenient and more desirable than first floor for conducting a Dental clinic as the patients may find difficulty in reaching the first floor. No other points have been raised in this revision petition. Hence this revision petition is dismissed. 9. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given six months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of a copy of this judgment. 2. The revision petitioner shall file an affidavit expressing an RCR No. 349/2018 -8- undertaking that he is ready and willing to vacate the tenanted premises within a period of six months from today. 3. The affidavit shall be filed before the Execution Court within two - weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** sd/- _Rv_ RCR No. 349/2018 -9-