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2017 DIGILAW 926 (KER)

Abdul Azeea v. Soudha

2017-06-22

K.HARILAL, P.SOMARAJAN

body2017
ORDER Harilal, J. These Revision Petitions are filed challenging the common judgment dated 8.2.2016, passed by the Rent Control Appellate Authority, Thalassery, in R.C.A.Nos.37 and 43 of 2012. The Petitioners in R.C.R.No.168 of 2017 are the landlords and the petitioner in R.C.R.Nos.216 and 217 of 2016 is the tenant. The landlords filed R.C.P.No.22 of 2010, on the files of the Rent Control Court, Taliparamba, seeking an order of eviction under Sections 11 (2) (b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court allowed the petition under Sections 11(2)(b) and 11(4) (i), but dismissed the claim under Section 11(3) of the Act. Both the parties preferred appeals and, after considering the appeals filed by both parties, the Appellate Authority confirmed the findings under Section 11(2)(b), but reversed the findings under Sections 11(3) and 11(4)(i) of the Act. These Revision Petitions are filed challenging the legality and propriety of the concurrent finding under Section 11(2) (b) and the divergent findings under Sections 11(3) and 11(4)(i) of the Act. 2. According to the landlords, the third petitioner needs the petition schedule building for staring a mobile phone sales and service centre. He is aged 24 years and he has no avocation at all for his livelihood. So also, the landlords contended that the tenant sub-leased the petition schedule building to the second respondent in the Rent Control Petition and thereafter, he went abroad and now he is employed abroad. Further it was contended that the shop room was let out on rent @ Rs. 800/- per month and subsequently it was enhanced to Rs.1,955/-. The tenant resisted all the aforesaid contentions and denied emphatically that the need projected is a ruse for eviction only. Further it was contended that he used to go abroad, but even now he is running the shop and the second respondent is a salesman only in his shop. As regards the claim under Section 11(2)(b) of the Act, according to the tenant, the rent was not enhanced to Rs. 1,955/-, but it was enhanced to Rs.1,760/-. Similarly, the rent was not in arrears as he has tendered the rent by way of Demand Draft, but the landlords refused to accept the same. As regards the claim under Section 11(2)(b) of the Act, according to the tenant, the rent was not enhanced to Rs. 1,955/-, but it was enhanced to Rs.1,760/-. Similarly, the rent was not in arrears as he has tendered the rent by way of Demand Draft, but the landlords refused to accept the same. On the aforesaid rival pleadings, the courts below have arrived at a concurrent finding under Section 11(2)(b) and divergent findings under Sections 11(3) and 11(4)(i) of the Act. 3. Heard the learned counsel appearing for the landlords and the learned counsel appearing for the tenant. The learned counsel appearing for the tenant advanced the arguments mainly contending that the Appellate Authority has went wrong in reversing the findings under Section 11(3) of the Act. According to him, by appreciating the evidence on record, the Appellate Authority has treated the landlords and the tenant differently, in the matter of accepting additional evidence produced by both parties. Learned counsel further submitted that in order to substantiate the contention that the tenant was permanently employed abroad, he has produced his passport before the Appellate Authority, but the Appellate Authority rejected the said application on a finding that as a matter of right the parties cannot adduce additional evidence before the Appellate Authority. However, when the landlords produced the document which was marked as Ext.A13 in the Appellate Authority under the same provision, without considering the reason of non-production of the same before the Rent Control Court, the Appellate Authority accepted and marked the document in evidence. 4. Per contra, learned counsel for the landlords advanced arguments to justify the acceptance of Ext.A13 in evidence in the appellate stage and rejection of the document produced by the tenant before the Appellate Authority. 5. We have carefully gone through the analysis made by the Appellate Authority on the application filed by both parties under Order XLI Rule 27 of the Code of Civil Procedure. It is true that the Appellate Authority allowed the application filed by the landlords and rejected the application filed by the tenant under the same provision. We further find that the Appellate Authority, after accepting the partition deed produced in evidence in the appellate stage, placed reliance on the said document and reversed the finding under Section 11(3) of the Act on the basis of that document alone. We further find that the Appellate Authority, after accepting the partition deed produced in evidence in the appellate stage, placed reliance on the said document and reversed the finding under Section 11(3) of the Act on the basis of that document alone. Thus, the divergent findings made by the Appellate Authority stands based on Ext.A13, which was produced in the appellate stage only. Needless to say, the Rent Control Court relied on Ext.A7 to arrive at a finding that the need projected by the landlords was not a bona fide one. Ext.A13 is a partition deed whereby the landlords had effected partition with respect to some shop rooms referred to by the Appellate Authority in the judgment for reversing the findings of the Rent Control Court. According to the landlords, Exts.A7 and A13 partition deeds were executed on the same day and instead of Ext.A13, Ext.A7 was produced in evidence before the Rent Control Court. Even if that contention is accepted, we find that the findings are based not only on the partition deed but also on the basis of the evidence adduced by the parties referring to the partition effected between the petitioners. Thus, by producing the document before the Appellate Authority the tenant has lost an opportunity to cross examine the landlords in view of Ext.A13 and the missing of that opportunity would cause prejudice to him. Therefore, we are of the opinion that the Appellate Authority went wrong in accepting Ext.A13 partition deed as such in evidence, in the appellate stage, without granting an opportunity to the tenant to cross examine the landlords on the basis of the said document. Hence, the matter requires fresh consideration with respect to the claim under Section 11(3) of the Act by the Rent Control Court, after affording an opportunity to both parties to adduce further evidence in this perspective. 6. Similarly, as regards the reversal of the finding under Section 11(4)(i) by the Appellate Authority, we find that the document produced by the tenant was rejected on the reason that the explanation given by the tenant for not producing the document before the Rent Control Court is not satisfactory. We are of the opinion that an opportunity can be given to the tenant to produce the document before the Rent Control Court enabling the landlords to cross examine the tenant on the basis of Ext.A2. We are of the opinion that an opportunity can be given to the tenant to produce the document before the Rent Control Court enabling the landlords to cross examine the tenant on the basis of Ext.A2. Thus, the finding under Section 11(4)(i) of the Act also requires fresh consideration, after affording an opportunity to adduce further evidence to both parties. 7. Coming to the concurrent finding under Section 11(2)(b) of the Act, according to the landlords, the rent was Rs.1,955/- per month, but the tenant contended that it was only Rs.1,760/- per month. We have gone through the concurrent finding. We find that, as rightly found by the courts below, Ext.B1 series documents cut the root of the case of the landlords that rent was enhanced to Rs.1,955/- even before 13.12.2007. Admittedly, the tenant has not paid the entire arrears with interest and notice charge, within fifteen days from the date of receipt of the notice, requiring payment of arrears, issued under section 11(2)(b) and the case of the tenant is that subsequently he tendered the said amount by way of Demand Draft. As rightly held by the courts below, subsequent payment, fifteen days after the receipt of the notice under Section 11(2)(b), is of no consequence at all. But, as rightly held by the courts below, it can be considered on an application under Section 11(2)(b) of the Act. Therefore, the concurrent finding under Section 11(2)(b) of the Act do not require any interference by this Court exercising revisional jurisdiction and the concurrent finding under Section 11(2)(b) will stand confirmed. 8. The Rent Control Petition is remitted back to the Rent Control Court for fresh consideration after affording an opportunity to both parties to adduce further evidence, including production of documents. The Rent Control Court shall dispose of the Rent Control Petition in view of the above findings, within a period of two months from the date of receipt of a copy of this order. Hence, R.C.R.No.216 of 2016 is hereby dismissed and R.C.R.Nos.217 of 2016 and 168 of 2017 are allowed in part. No order as to costs.