R.C.R.No. 269 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944** **RCREV. NO. 269 OF 2015** **AGAINST THE JUDGMENT IN RCA 24/2007 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT** **CLAIMS TRIBUNAL), THALASSERY** **AGAINST THE ORDER DTD 21/12/2006 IN RCP 2/2005 OF RENT CONTROL** ## **COURT (MUNSIFF COURT), THALIPARAMBA REVISION PETITIONERS/APPELLANTS 2 AND 3 AND 2ND RESPONDENT/RESPONDENTS 2 TO 4 IN RCP:** - **1 K.A CHANDRAN S/O. KAIPACHERY ANDI, VAYATHOOR AMSOM DESOM, ULIKKAL POST, TALIPARAMBA TALUK.** - **2 K.A. HEMA** - **D/O. KAIPACHERY ANDI, VAYATHOOR AMSOM DESOM, ULIKKAL POST, TALIPARAMBA TALUK.** - **3 K.A. SHANTHA** - **D/O. KAIPACHERY ANDI, VAYATHOOR AMSOM DESOM, ULIKKAL POST, TALIPARAMBA TALUK.** **BY ADVS.SRI.O.V.MANIPRASAD** **SRI.JOSE ANTONY** ## **RESPONDENTS/RESPONDENT NO.1/DECEASED ORIGINAL PETITIONER AND HIS** ## **LEGAL REPRESENTATIVE:** - **1 KAVIL VARKKEY VEETTIL KANNAN NAIR S/O. PARU AMMA, VAYATHOOR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT-691001. (DECEASED)** - **2 CHERIYAKOMMATHU RAJEEVAN** - **S/O. KAVIL VADAKKEY VEETIL KANNAN NAIR, VAYATHOOR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT-691001.** **BY ADV SRI.M.SASINDRAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No. 269 of 2015** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.No. 269 of 2015** **------------------------------------------Dated this the 12[th] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 30/11/2013 in R.C.A.No.24/2007 on the file of the Rent Control Appellate Authority (RCAA), Thalassery, which appeal is against the order dated 21/12/2006 in R.C.P.No.2/2005 on the file of the Rent Control Court (RCC), Taliparamba. The revision petitioners herein are appellants 2 and 3 and the 2nd respondent in the appeal, and respondents 2 to 4 in the R.C.P. The respondents herein are the respondents in the appeal and the petitioners in the R.C.P. The parties and documents will be referred to as described in the R.C.P. 2. R.C.P.No.2/2005 was filed by the original petitioner Kannan Nair seeking eviction of the respondents under Sections 11(2)(b) and 11(3) of the Act. It was alleged that the petitioner, the owner of the petition schedule room bearing no.PKP VII-495 has let out the same to Kaippacheri 3 ## **R.C.R.No. 269 of 2015** Andi, the husband of the first respondent and father of respondents 2 to 4. On his death, the tenancy devolved on the respondents by virtue of Ext.A1 rent deed dated 26/03/2001. The monthly rent of the room was ₹450/-. The rent is in arrears from January 2003 onwards. It is also alleged that the petitioner's son, C.K.Rajeevan is unemployed. Hence the petitioner _bona fide_ requires the petition schedule room for his son, his dependent, for the purpose of starting a bakery business. Neither the petitioner nor his son is in possession of any room(s) suitable for business. It is also alleged that the respondents are not entitled to the benefit of the second proviso to Section 11(3) of the Act. 3. The third respondent is _ex parte_ . Respondents 1 and 2 filed counter denying allegation of arrears of rent and the _bona fide_ need. According to them, the petitioner's son Rajeevan is not a dependent of the petitioner. He is running several other businesses. They also claimed the protection of the second proviso to Section 11(3). The fourth respondent filed separate counter supporting the case of respondents 1 and 2. 4. During the pendency of the R.C.P., the original petitioner Kannan Nair, died and hence his son Rajeevan, for whom the need was alleged, was impleaded as supplemental second petitioner as per order dated 15/12/2005 in I.A.No.2279/2009. The R.C.P. was thereafter amended and 4 ## **R.C.R.No. 269 of 2015** impleadings brought in to the effect that the supplemental second petitioner has obtained title over the petition schedule room by virtue of Ext.A4 registered Will No.3/2002 of SRO, Ulikkal. Though the R.C.P. was amended, no additional counter is seen filed by the respondents. The RCC on an appreciation of the oral and documentary evidence and after hearing both sides, allowed the R.C.P. and ordered eviction under Sections 11(2)(b) as well as 11(3) of the Act. R.C.A.No.24/2007 filed by the respondents was dismissed confirming the findings of the RCC. Aggrieved by the concurrent findings, the respondents have come up in revision. 5. The only point that arises for consideration is whether the concurrent findings of the RCC and RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Adv.O.V.Maniprasad, the learned counsel for the revision petitioners and Adv.M.Sasindran, the learned counsel for the respondents. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an appellate authority. It is true that the power of the revisional court is limited to making a scrutiny of the records to satisfy itself as to the three tests laid down in Section 20 and it cannot convert itself into an evidence collecting or fact finding court. The revisional authority has to satisfy itself of the legality, 5 ## **R.C.R.No. 269 of 2015** regularity or propriety of the order or proceedings of the appellate authority. It can certainly intervene when the impugned order is illegal, irregular or improper. 8. It was submitted by the learned counsel for the respondents that the original petitioner as well as his son, the supplemental second petitioner, have played fraud on the court by suppressing material facts and filing a false affidavit to the effect that the second petitioner is the owner of the petition schedule room. Ext.A4 Will relied on by the second petitioner itself would disprove his case that he is the owner of the petition schedule room. Our attention was drawn to I.A.No.1768/2013 filed by the respondents before the appellate court for receiving additional documents. According to the respondents, the RCAA has wrongly dismissed the petition. Had the additional documents been admitted in evidence, it would have clearly showed that the second petitioner has no right in the petition schedule room and that it is his brother, Satheeshan, who is the actual owner of the property. The second petitioner has no case that he is a dependent of his brother. That being the position, the claim of the second petitioner that he is the owner of the petition schedule room on the basis of Ext.A4 Will, will have to fail and so the R.C.P. will necessarily have to be dismissed, goes the argument of the respondents. 6 ## **R.C.R.No. 269 of 2015** 9. In the schedule to the R.C.P., the petition schedule room is stated to be bearing no.PKP VII-495. As per the amended R.C.P., the case is that the second petitioner has obtained title over the petition schedule room as per Ext.A4 Will dated 13/05/2002, executed by his father, namely, the original petitioner. As noticed earlier, no additional counter is seen filed by the respondents disputing the case brought in by way of amendment to the R.C.P. Moreover, the respondents being strangers to the Will, cannot challenge the validity of the same also. As per Ext.A4 Will, the room bearing no.VII/497 has been bequeathed to the second petitioner and room bearing no.VII/495 has been given to the brother of the second petitioner, namely, Satheeshan. The documents produced along with I.A.No.1768/2013, which application was dismissed by the RCAA are the copy of the application dated 11/09/2003 submitted by one of the respondents under the RTI Act to the Secretary, Ulikkal Grama Panchayath; reply dated 07/10/2013 given by the Secretary, Ulikkal Grama Panchayath and a copy of the building tax receipt dated 21/12/2012 relating to room bearing no.VII/495. The aforesaid application for receiving additional documents was dismissed by the RCAA on the ground that it was highly belated. As these documents are also necessary to decide the dispute between the parties, the same requires to be brought in evidence. Hence, 7 ## **R.C.R.No. 269 of 2015** I.A.No.1768/2013 shall stand allowed and the documents shall stand marked as Exts.B6 to B8. 10. In Ext.B7 dated 07/10/2013, the reply given to Ext.B6 application by the Secretary, Ulikkal Grama Panchayath, it is stated that as per the assessment register maintained in the Panchayath, Satheeshan is the owner of the room bearing no.IX/106. It is also stated that license for conducting a business in the name and style 'Santha Bakery', has been issued in respect of the said room. It is not disputed that the respondent is conducting the said business in the petition schedule room. Ext.B8 dated 21/12/2012 is the building tax receipt which shows that tax was paid by Satheeshan in respect of room bearing no.IX/106. Our attention was also drawn to another reply dated 28/11/2015 given by the Secretary, Ulikkal Grama Panchayath, which is Ext.P6 in connected O.P.(R.C.) No.105/2019. This document shows that building no.UGP-VII-495, UGP-IX-106 and UGP-XI-676 relate to the same room and that from 1993-'94 to 06/01/2007, Kannan Nair was the owner of the said room and thereafter from 07/01/2007 till date, the records show that it is Satheeshan, who is the owner of the said room. These documents are not disputed by the second petitioner. Therefore referring to these documents, the argument advanced by the respondents is that the allegation in the amended R.C.P. that the second 8 ## **R.C.R.No. 269 of 2015** petitioner obtained title over the petition schedule room is false and apparently made to mislead the court. 11. The contention of fraud, suppression of material facts, misrepresentation etc., raised by the respondents do not seem to be right. Here, we refer to I.A.No.2279/2005 filed before the RCC seeking impleadment of the second petitioner in the R.C.P. Paragraph 1 of the said application reads - “ _My father was Petitioner in the above case. He is no more on 24-09-2005. During his lifetime he had executed a will pertaining the petition schedule shop room and other shop rooms. By virtue of 'Will' bearing No.3/202 of the SRO Ulikkal the petition schedule room particularly numbered with the new number as UGP VII/497 (PKPVII495)_ _bequeathed to me._ ” (Emphasis supplied). Therefore the specific case in the impleading petition is that the new number of the room bearing no.PKP VII/495 is UGP VII/497. The question whether this statement is true, is another matter. However the contention that, there was suppression of facts or fraud or misrepresentation by the second petitioner is not correct. No objection is seen raised to the impleading petition or to the petition for amending the R.C.P. No counter was also filed denying the allegation in the amended R.C.P. It probably may be a mistake committed in referring to the number of the petition schedule room. This is all the more likely because 9 ## **R.C.R.No. 269 of 2015** Ext.A4 Will, on the basis of which the second petitioner claims title over the room, is seen marked before the RCC without any objection being raised by the respondents herein. It is settled law that whenever a Will is used as evidence and for whatever purpose, one of the contesting witnesses if he is alive should be called for the purpose of proving its execution ( **Sarada v. Radhamani, 2017(2) KHC 527)** . Due execution of Will cannot be proved otherwise than by recourse to Section 68 of the Evidence Act and Section 63 of the Succession Act, as no distinction has been drawn by the statutory provision between an admitted Will and a disputed Will. Therefore, one of the attesting witnesses if he is alive should be called for the purpose of proving its execution whenever the Will is used as evidence or for whatever purpose. However, these mandatory provisions are not seen complied with before Ext.A4 Will was admitted in evidence. The respondents had never objected to the marking of the same also. There was also no counter/ objection filed to the allegation of the second petitioner that he obtained title over the tenanted premises as per Ext.A4 Will. 12. Further, there is concurrent finding regarding the grounds of eviction sought under Section 11(2)(b) and Section 11(3) of the Act. The respondents have not been able to show any illegality, irregularity or impropriety in the findings of the RCC or the RCAA as far as the findings on 10 ## **R.C.R.No. 269 of 2015** the said grounds are concerned. The main challenge is based on the number of the petition schedule room which appears to be a mistake. In these circumstances, we feel that to deny the petitioner the reliefs prayed for would certainly be a miscarriage of justice. Therefore, in our opinion, an opportunity must be granted to the petitioner to clarify the mistake if any committed, in referring to the number of the petition schedule room in the R.C.P. Interest of justice requires the petitioner to be given an opportunity to rectify the mistake that has crept in. This is especially so because the respondents have been unable to show anything to doubt the _bona fides_ of the need alleged in the petition. The finding relating to the _bona fides_ of the need and relating to the second proviso to Section 11(3) shall stand confirmed. In the result, the revision is allowed and the matter is remanded to the RCC, Taliparamba, to enable the petitioner to amend the pleadings, if so advised, and to adduce evidence in support of the same. Respondents are also given the liberty to bring in additional pleadings and evidence in reply, if so advised. However, it is made clear that the _bona fides_ of the need alleged and the finding relating to the second proviso to Section 11(3) shall not be re-agitated. The only aspect to be considered is whether the second petitioner has obtained title over the petition schedule room as claimed by 11 ## **R.C.R.No. 269 of 2015** him in the amended R.C.P. Since the R.C.P. is of the year 2005, the RCC is directed to dispose of the same within a period of two months from the date of receipt of a copy of this order. The parties shall appear before the RCC on **14/02/2023** . The Registry shall transmit the records forthwith. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/ 12 ## **R.C.R.No. 269 of 2015** ## **APPELLANTS' EXHIBITS** **EXT.B6 : TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY K.A.CHANDRAN, 3RD APPELLANT IN THE ABOVE CASE UNDER R.I.ACT DATED 11/9/2013** **EXT.B7 : REPLY SUBMITTED BY THE SECRETARY, ULIKKAL GRAMA PANCHAYATH DATED 7/10/2013** **EXT.B8 : TRUE COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE SECRETARY, ULIKKAL GRAMA PANCHAYATH IN THE NAME OF CHERIYAKOMATH SATHEESHAN**