OP (RC) No. 3444 of 2012 (O)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934 ## **OP (RC).No. 3444 of 2012 (O)** RCP.4/2009 OF RENT CONTROL COURT,ATTINGAL PETITIONER: ------------- RIJU MUKUND S/O.MUKUNDAN,'SOORYA GARDENS', B.T.S.ROAD, ATTINGAL.P.O, TRIVANDRUM DISTRICT. BY ADVS.SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN RESPONDENTS: -------------- 1. SELVI W/O.KANNAN,VEL BHAVAN,MYTHANAM VARKALA.P.O, PIN-695 141. 2. P.T.RAMAR, S/O.THIRUKODI NADAR,SELVI VESSELS PARVATHIPURAM GRAMAM, ATTINGAL.P.O, TRIVANDRUM, PIN-695 101. R1 & 2 BY ADV. SRI.S.D.ASOKAN BY ADV. SRI.SABU GEORGE BY ADV. SRI.NIDHI BALACHANDRAN THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------O.P.(R.C.) NO.3444 OF 2012 O ---------------------------------------------------Dated this the 11[th] day of December, 2012** ## **JUDGMENT** ## **K.T.Sankaran, J.** The petitioner filed O.P.(BRC) No.4 of 2009 on the file of the Rent Control Court, Attingal against the respondents under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act. The petitioner also filed O.P.(BRC) No.5 of 2009 against another tenant. The petition schedule buildings in O.P. (BRC) Nos.4 of 2009 and 5 of 2009 form part of the same main building. The residential house of the petitioner/landlord is also situated in the same compound. The bona fide need put forward by the landlord is that he wants to construct a building for his own occupation after demolishing the petition schedule buildings in O.P. (BRC) Nos.4 and 5 of 2009. 2. The petitioner/landlord had approached this Court in O.P. (R.C.)No.2520 of 2012 for issuing a direction to the Rent Control ## **O.P.(R.C.) NO.3444 OF 2012 O** :: 2 :: Court to dispose of the Rent Control Petitions expeditiously. A Division Bench of this Court in Ext.P5 judgment dated 2.8.2012, directed the Rent Control Court to list the cases for trial and to dispose of the same without undue delay. 3. As directed by this Court, the Rent Control Court posted the cases for trial. In O.P.(BRC) No.4 of 2009, the landlord was examined as PW1 and another witness on his side was examined as PW2. The evidence of the petitioner/landlord was closed. Recording of evidence on the side of the tenants commenced and the respondents were examined as CPWs.1 and 2. At that juncture, the petitioner/ landlord filed three applications before the Rent Control Court as I.A.Nos.2183 of 2012, 2185 of 2012 and 2186 of 2012 to receive the witness schedule and allow the petitioner to examine the witnesses shown in the witness schedule, to recall PW2 and to examine him after directing him to produce certain records and also to review the order closing the evidence on the side of the landlord. The court below dismissed all these applications as per separate orders dated 4.10.2012, which are under challenge in this Original Petition (RC). ## **O.P.(R.C.) NO.3444 OF 2012 O** :: 3 :: 4. It would appear that when the respondents/tenants were examined, some questions were put to them with respect to certain bank accounts. The petitioner/landlord now wants to summon the documents relating to those bank accounts, to examine the persons who are in charge of those documents and to adduce evidence with respect to the same on the side of the petitioner. The court below held that the petitioner/landlord cannot be allowed to fill up the lacuna in the evidence by citing some other witnesses. It was also held that the petitioner has not indicated the purpose of summoning those witnesses. Accordingly, the court below dismissed I.A.No.2183 of 2012. We do not find any error or illegality in the order in I.A.No.2183 of 2012. 5. I.A.No.2185 of 2012 was filed to recall PW2 to elucidate certain matters. It is stated that in the plan produced by the petitioner/landlord the residential building is shown as the building to be demolished instead of the commercial building occupied by the tenants. The petitioner wants to recall PW2 and to direct him to produce the relevant documents and files to establish that the petitioner/landlord did not want to demolish his residential building. On the other hand, what he applied for was to demolish the ## **O.P.(R.C.) NO.3444 OF 2012 O** :: 4 :: commercial building. The learned counsel for the petitioner submitted that if the intention of the petitioner/landlord was to demolish his residential building, it was not necessary to file the Rent Control Petitions at all for that purpose, since the house was occupied by the landlord himself. According to the counsel, this itself shows that there is an evident mistake in the plan and it can be proved only on production of the relevant records. We are of the view that the prayer made in I.A.No.2185 of 2012, if allowed, would not cause any prejudice to the respondents/tenants. On the other hand, it would enable the Court to finally and completely adjudicate upon the disputes involved in the case. No party should be allowed to take advantage of the mistake, if any, occurred in the official records. We are of the view that summoning the relevant records and recalling PW2 and recording his evidence would only enable the Court to find out the truth. It would also enable the parties to have a fair fight on the real issues involved in the cases. According to us, the court below should have allowed I.A.No.2185 of 2012. Accordingly, we set aside the order in I.A.No.2185 of 2012 and allow that application. 6. I.A.No.2186 of 2012 was filed for recalling the order closing ## **O.P.(R.C.) NO.3444 OF 2012 O** :: 5 :: the evidence for two purposes, namely, (1) to recall PW2 and examine him; and (2) to allow the petitioner/landlord to examine certain other witnesses. We have already confirmed the order in I.A.No.2183 of 2012 and therefore, the question of reopening the evidence for the purpose mentioned in I.A.No.2183 of 2012 does not arise. However, it is necessary to recall the order closing the evidence and to reopen the evidence for the purpose of recalling PW2 and to further examine him for the purposes mentioned in I.A.No.2185 of 2012. Accordingly, we partly allow I.A.No.2186 of 2012 for the purpose of implementing the order in I.A.No.2185 of 2012. If the court finds that the records with respect to which PW2 is to be further examined is in the custody of any other officer, nothing prevents the Court from calling that particular officer as a witness for the production of documents and for the purpose of giving evidence with respect to those documents. 7. Learned counsel appearing for the respondents/tenants cited the decision of the Supreme Court in **Vadiraj Naggappa Vernekar (dead) through LRs.** v. **Sharadchandra Prabhakar Gogate** ((2009) 4 SCC 410), in which the Supreme Court held thus: ## **O.P.(R.C.) NO.3444 OF 2012 O** :: 6 :: “28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. 29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. 30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for reexamination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case.” ## **O.P.(R.C.) NO.3444 OF 2012 O** :: 7 :: On a careful consideration of the decision of the Supreme Court, we are of the view that the findings in paragraph 30 would fortify the view which we have taken as mentioned above. The Original Petition (R.C.) is partly allowed as mentioned above. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/