Shuhaib Kaippalakath and Rahiza Shunaib v. Government of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **RCRev..No. 81 of 2017 (B) -------------------------** **RCA 157/2013 of RENT CONTROL APPELLATE AUTHORITY/III ADDL. DISTRICT COURT, THALASSERY** **RCP 71/2012 of RENT CONTROL COURT/PRL.MUNSIFF COURT,KANNUR** **REVISION PETITIONERS/RESPONDENTS/PETITIONERS:** **---------------------------------------------** ## **1. SHUHAIB KAIPPALAKATH** - **S/O.ABOOBACKER HAJI, AGED 48 YEARS, RESIDING AT SUBAIDA MANZIL, KAZANAKOTTA NORTH, KANNUR-2, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SRI.P.V.ABDURAHIM, S/O.C.M.ABDULLA VYDIAR, AGED 59 YEARS, DOCTOR, PULIMARATHINKEEL NEW HOUSE, MUZHATHADAM ROAD, THAYATHERU, KANNUR-2.** ## **2. RAHIZA SHUNAIB** **D/O.P.V.ABDURAHIMAN, AGED 39 YEARS, PULIMARATHINKEEL NEW HOUSE, MUZHATHADAM ROAD, THAYATHERU, KANNUR-2, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SRI.P.V.ABDURAHIM, S/O.C.M.ABDULLA VYDIAR, AGED 59 YEARS,** **DOCTOR, PULIMARATHINKEEL NEW HOUSE, MUZHATHADAM ROAD, THAYATHERU, KANNUR-2.** **BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI** ## **RESPONDENT(S)/RESPONDENTS/APPELLANTS/RESPONDENTS:** **-------------------------------------------------** **1. THE GOVERNMENT OF INDIA REPRESENTED BY SUPERINTENDENT OF POST OFFICE, KANNUR DIVISION, KANNUR-670001.** **....2** **RCRev..No. 81 of 2017 (B)** **(2)** **2. THE SUPERINTENDENT OF POST OFFICE KANNUR DIVISION, KANNUR-670001.** **3. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POST, DAK BHAVAN, NEW DELHI-110011.** **R1-R3 BY SRI.K.SHRI HARI RAO, CGC SRI. N.NAGARESH ,ASG** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **OKB** K.HARILAL & A.M.BABU, JJ. --------------------------R.C.R. No.81 of 2017 --------------------------Dated this the 9[th] day of October, 2017 ## O R D E R ## **Harilal, J.** The legality and propriety of the divergent findings under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) have come up in this revision filed by the landlord. The parties are referred to as in the Rent Control Petition. According to the petitioners, they need the petition schedule building for the purpose of starting a business in Ayurvedic medicines in wholesale and retail. Further, the 1[st] petitioner, who is the husband of the 2[nd] petitioner, is working abroad and he will return at any time as his employment there is not safe or secured. It is further alleged that they intend to occupy the petition schedule building, after demolition and reconstruction of the same, as the existing building is very old and dilapidated. RCR.81/17 **:2:** 2. The petition schedule building is leased out to the respondents for functioning Kannur Tana Post Office and they filed a counter statement resisting the bona fide need alleged in the petition. According to the respondents the need projected in the petition is a pretense for eviction only. In order to prove the bona fides of the need the Power of Attorney holder of the petitioners was examined as PW1. After considering the evidence of PW1 and Exts.A1 to A11 the Rent Control Court found that the need projected is a bona fide one and an order of eviction was passed under section 11(3) of the Act. 3. In the appeal preferred by the petitioners, the Appellate Authority reversed the findings of the Rent Control Court and allowed the appeal on a finding that the petitioners failed to prove the bona fides of the need as the Power of Attorney holder alone was examined in evidence and he is not competent to speak about the bona fides of the need perceived in the minds of the RCR.81/17 **:3:** petitioners/landlords. 4. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. 5. The question to be considered is whether there is any illegality or impropriety in the finding of the Appellate Authority that the Power of Attorney holder, who was examined in lieu of the petitioners, is not competent to speak about the bona fides of the need perceived in the minds of the petitioners, who require the petition schedule building. 6. Going by the judgment passed by the Appellate Authority, it is seen that the Appellate Authority has arrived at such a finding in view of sections 3 and 60 of the Evidence Act and the decision of the Apex Court in **Joseph** **Mathew v. Jose Thomas [2005 (4) KLT 764 (SC)]** . Indisputably, it is well settled by a plethora of judicial precedents that bona fide need is a state of mind perceived in the mind of the landlord and it is the outcome of a RCR.81/17 **:4:** sincere and honest desire. As rightly pointed out by the Appellate Authority, as per Section 3 of the Evidence Act, any mental condition of which any person is conscious is also a fact and as per Section 60 of the Evidence Act oral evidence must, in all cases whatever, be direct and if oral evidence refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. In the above view, the Power of Attorney holder who was examined in evidence cannot give evidence as to the fact perceived in the mind of the petitioners. Certainly, he can be examined as a witness. But, his evidence cannot be considered as the evidence of the petitioners. So also the bona fide need is a fact within the knowledge of the landlords alone and the Power of Attorney holder is not a competent witness to speak about the facts within the special knowledge of the landlord. 7. In **Janki Vashdeo v. Indusind Bank [2005 (2)** RCR.81/17 **:5:** **KLT 265 (SC)]** the Supreme Court held 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 said party. In short, the Power of Attorney holder cannot be examined in lieu of the petitioner, in the capacity of landlord. 8. In the above analysis, we find that the Appellate Authority has rightly understood the legal position and rejected the evidence of PW1. No other evidence has been adduced in the instant case to prove the bona fides of the need. Therefore the Appellate Authority is justified in reversing the findings of the Rent Control Court and allowing the appeal. In the absence of any kind of illegality or impropriety in the impugned findings the revision fails. 9. Having regard to the facts and circumstance of the case, and for the interest of justice, we find that an opportunity can be given to the petitioners to adduce further proper evidence to prove their case in evidence. RCR.81/17 **:6:** Consequently, the impugned judgment will stand set aside and the Rent Control Petition is remitted back to the trial court for fresh consideration and disposal. The parties are given an opportunity to adduce further evidence. The Rent Control Court shall dispose the Rent Control Petition at the earliest, at any rate, within a period of three months from the date of appearance. The parties shall appear before the Rent Control Court on 10/11/2017. All pending interlocutory applications will stand closed. **Sd/-** K.HARILAL, Judge. Sd/A.M.BABU, Judge. okb.