Sabitha Ajith Kumar v. K. Damodharan and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 8[TH]DAY OF FEBRUARY 2023 / 19TH MAGHA,1944 ``` ## **`RCREV. NO. 127 OF 2019`** ``` AGAINST THE ORDER DATED 14.03.2017 IN IA.11055 OF 2016 IN RCP NO.27 OF 2014 OF RENT CONTROL COURT, THIRUVANANTHAPURAM CONCURRING WITH THE COMMON ORDER IN RCA NO.19 OF 2017 DATED 17.11.2018 OF THE RENT CONTROL APPELLATE AUTHORITY-IV (ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV), THIRUVANANTHAPURAM ``` ## **`REVISION PETITIONER/APPELLANT/PETITIONER:`** ``` SABITHA AJITH KUMAR, AGED 51 YEARS, W/O. AJITH KUMAR, AJAYA NIVAS, NANTHANCODE, KOWDIAR P.O, THIRUVANANTHAPURAM. ``` ``` BY ADV S.EASWARAN ``` ## **`RESPONDENT/RESPONDENT/COUNTER PETITIONER:`** - **`*1 K.DAMODAHARAN`** - **`T.C.26/2005-1 AND 26/2005-2, NEAR SWAPANA TOURIST HOME, GENERAL HOSPITAL ROAD, STATUE, THIRUVANANTHAPURAM-695001.-(DECEASED)`** - **`ADDL.R2 & R3 IMPLEADED`** - **`*ADDL.R2 ANITHA.D, AGED 63 YEARS,`** ``` D/O LATE K.DAMODAHARAN,T.C.26/20056-1&26/2005-2, NEAR SWAPANA TOURIST HOME,GENERAL HOSPITAL ROAD, STATUE,THIRUVANANTHAPURAM DISTRICT-695001. (LAILA BHAVAN,VALIYAKATTAKAL,VENJARAMOODU.P.O, THIRUVANANTHAPURAM DISTRICT-695507). ``` RCRev No. 127 of 2019 2 ``` *ADDL.R3ACHIN.D AGED 56 YEARS, D/O LATE K.DAMODAHARAN,T.C.26/20056-1&26/2005-2, NEAR SWAPANA TOURIST HOME,GENERAL HOSPITAL ROAD, STATUE,THIRUVANANTHAPURAM DISTRICT-695001. (LAILA BHAVAN,VALIYAKATTAKAL,VENJARAMOODU.P.O, THIRUVANANTHAPURAM DISTRICT-695507) ``` ``` *ADDITIONALRESPONDENTNOS.2AND3,BEINGTHELEGAL HEIRSOFDECEASEDR1,AREIMPLEADEDASPERORDERDATED 13.10.2021 IN I.A.NO.1 OF 2021 IN RCR. NO.127 OF 2019. ``` ``` BY ADVS. S.K.ADHITHYAN KEERTHI S. JYOTHI ``` ``` THISRENTCONTROLREVISIONHAVINGBEENFINALLYHEARDON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev No. 127 of 2019 3 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **------------------------------------------RCRev No. 127 of 2019 -------------------------------------------** Dated this the 8[th] day of February, 2023 ## **O R D E R** ## **Sophy Thomas, J.** The revision petitioner is the petitioner/landlord in RCP No.27 of 2014 pending before the Rent Control Court, Thiruvananthapuram. He is challenging the order of the Rent Control Appellate Authority in RCA No.19 of 2017. 2. The landlord filed the RCP under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as ‘The Act’). 3. The petition schedule building originally belonged to the father of the petitioner and he had leased out the schedule building to the respondent, who is none other than his own brother, for doing business on a monthly rental arrangement of Rs.300/- per month, for a period of two years and an unregistered agreement was executed on RCRev No. 127 of 2019 4 01.01.1987. Later, father of the petitioner executed a settlement deed settling the building and properties in favour of his wife. In that settlement deed itself, the tenancy arrangement with the respondent is noted. Later mother of the petitioner, on 10.05.2012 settled the aforesaid building and property in favour of the petitioner, and thus she became the landlord. 4. In RCP, The respondent/tenant raised a dispute regarding title of the landlord, and also the landlord-tenant relationship. He contended that the property was entrusted with him by the father of the petitioner, on an understanding that he or his successors need not vacate the premises. The execution of the lease agreement dated 01.01.1987 was also denied by the respondent. The rental arrangement was also not admitted. 5. The Rent Control Court found that the denial of title by the landlord was not _bona fide_ as borne out from Exts.A1 to A6 documents. Ext.A6 was the rental agreement dated 01.01.1987. Aggrieved by the order of the Rent Control Court, the respondent preferred RCA No.1 of 2015, and as per order dated 17.06.2016, the Appellate Authority remanded the matter for fresh consideration by the Rent Control Court, to decide whether the denial of title of the landlord by the tenant was _bona fide_ or not, allowing the revision petitioner as RCRev No. 127 of 2019 5 ## well the respondent to adduce evidence afresh. 6. May be because fresh evidence was ordered, the petitioner/landlord sought for fresh marking of Exhibits, including the rental agreement dated 01.01.1987, consequent to the remand. As per order dated 04.10.2016, the Rent Control Court, Thiruvananthapuram, refused to mark the same, as it was not a registered document. I.A.No.11055 of 2016, filed for review of the said order, was also dismissed by the Rent Control Court on 14.03.2017. So the landlord preferred RCA No.19 of 2017 before the Rent Control Appellate Authority and that RCA was also dismissed on 17.11.2018, against which, this revision has been preferred. 7. The original tenant is no more and his legal heirs were impleaded as additional respondents 2 and 3. The 2[nd] respondent did not appear and only the additional 3[rd] respondent entered appearance and opposed the revision petition filed by the landlord. 8. Heard learned counsel Sri.S.Easwaran appearing for the revision petitioner and learned counsel Sri.S.K.Adithyan appearing for the additional 3[rd] respondent. 9. It is doubtful as to whether an appeal in terms of Section 18 of the Act would lie against an order in the nature of one passed on I.A.No.11055 of 2016 filed for review of the order dated RCRev No. 127 of 2019 6 04.10.2016. Nevertheless, we are disposing of this revision petition preferred against the decision of the Appellate Authority on merits, as even otherwise, we are entitled to examine the correctness of the order on I.A.No.11055 of 2016, in exercise of the jurisdiction under Article 227 of the Constitution of India. 10. Now the short question posed before us is whether Ext.A6 document, which was once marked by the Rent Control Court, can be refused marking, when fresh evidence was ordered by the Rent Control Appellate Authority, to decide the question as to the landlord-tenant relationship. 11. According to the landlord, since the tenant disputed his title, and also the landlord-tenant relationship, he wanted to mark Ext.A6 rental agreement dated 01.01.1987, executed between the landlord and the tenant. It is true that the tenant is disputing the rental arrangement as well as the agreement dated 01.01.1987. It is to be noted that the rent agreement was earlier marked by the Rent Control Court as Ext.A6 as early as on 09.01.2015, through PW1-the landlord, without any objection from the part of the tenant. 12. Marking of a document as an Exhibit is only an administrative work for the convenience of the court, and that will not decide the question of admissibility of that document. Even though a RCRev No. 127 of 2019 7 document is marked as an Exhibit, its contents and execution has to be proved by admissible evidence. Marking of a document as Exhibit and admitting it in evidence are entirely different things. Even if a document is not admissible in evidence, it can be used for other collateral purposes also. 13. In **Narbada Devi Gupta v. Birendra Kumar** **Jaiswal** [(2003) 8 SCC 745], the Apex Court held that _‘The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’’_ 14. This proposition was affirmed by the Supreme Court in ## **Life Insurance Corporation of India and Another v. Ram Pal** **Singh Bisen** [(2010) 4 SCC 491], wherein it was held that _‘mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.’_ 15. According to the landlord, the rent agreement, which was once marked before the Rent Control Court, without any objection RCRev No. 127 of 2019 8 from the side of the respondent, cannot be denied marking, saying that it was not a registered document. RCP No.27 of 2014 is pending, for all these nine years for deciding as to the question of landlord-tenant relationship between the petitioner and respondent. On account of the order of the Rent Control Court refusing to mark the agreement dated 01.01.1987, the Rent Control Petition was dragged this much, not able to proceed further because of the stay order. So, interest of justice also demands that the Rent Control Revision has to be allowed, setting aside the order of the Rent Control Appellate Authority in RCA No.19 of 2017. In consequence, the order in I.A.No.11055 of 2016 of the Rent Control Court in RCP No.27 of 2014 also is set aside. 16. The Rent Control Court is directed to mark the agreement dated 01.01.1987, produced by the landlord as an Exhibit. The Rent Control Court has to decide the admissibility of that document, along with the question as to whether there was landlord-tenant relationship between the petitioner and the respondent. The Rent Control Court has to decide as to whether the agreement dated 01.01.1987 can be used for any other collateral purposes also, if at all, it is found not admissible for want of registration. RCRev No. 127 of 2019 9 17. The Rent Control Court has to mark the agreement dated 01.01.1987 immediately on receipt of a copy of this order, and its admissibility has to be heard within one week thereafter, and the RCP itself has to be disposed of within a period of one month therefrom, at any rate, before the court closes for summer recess. The Rent Control Court has to decide on the question of denial of title and the landlord-tenant relationship between the petitioner and respondent, untrammeled by any observations or directions made in this revision. With these directions, the Rent Control Revision stands allowed. The Registry of this Court has to transmit the lower court records forthwith, along with a copy of this order for enabling the Rent Control Court concerned to comply with the directions, within the stipulated time. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **SOPHY THOMAS JUDGE** DSV/09.02.2023