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2022 DIGILAW 22 (KER)

DOSTH MOTORS v. SEBIN K. XAVIER S/O K. A. XAVIER

2022-01-06

ANIL K.NARENDRAN, P.G.AJITHKUMAR

body2022
JUDGMENT : P.G. AJITHKUMAR, J. 1. The respondent-landlord filed Rent Control Petition No. 138 of 2015 for eviction before the Rent Control Court (Additional Munsiff-III), Ernakulam against the petitioner-tenant. Eviction was sought under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent was examined as PW-1 at the trial. Exts.A1 to A11 were marked. Immediately thereafter, the respondent filed I.A. No. 21 of 2021 under Order XVIII, Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 to recall PW-1 for further examination. The Rent Control Court allowed that application. The said order, produced as Ext.P6, is impugned in this Original Petition filed under Article 227 of the Constitution of India. 2. On 25.10.2021, when the matter came up for consideration, Advocate A. Balagopal entered appearance for the respondent. On that day, proceedings in the rent control petition was ordered to be stayed for three weeks. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The learned counsel appearing for the petitioner would contend that the impugned order is totally wrong since the object behind recalling of PW-1 is to fill up lacuna in evidence, which is totally prejudicial to the petitioner. It is contended that the respondent in his proof affidavit stated the entire evidence required in the light of the contention in the rent control petition and produced all documents on his side. After exhaustive cross-examination of PW-1 by the petitioner herein, I.A. No. 21 of 2021 was filed. Therefore, the order allowing recalling of PW-1 is legally incorrect and liable to be set aside. 5. The learned counsel appearing for the respondent would contend that in the light of the contention of the petitioner that there was no landlord-tenant relationship, PW-1, who is power of attorney of the respondent in her proof affidavit stated regarding the facts sufficient to establish the landlord-tenant relationship and nothing more. 5. The learned counsel appearing for the respondent would contend that in the light of the contention of the petitioner that there was no landlord-tenant relationship, PW-1, who is power of attorney of the respondent in her proof affidavit stated regarding the facts sufficient to establish the landlord-tenant relationship and nothing more. The respondent was under the bona-fide impression that the Rent Control Court was considering only the question regarding denial of landlord-tenant relationship in the light of the second proviso to Section 11(1) of the Act and only when she was cross-examined by the learned counsel for the tenant, touching grounds for eviction set forth in the Rent Control Petition, she realised that the court proposes to consider the whole matter and not merely the question regarding maintainability. It was only for that reason, the respondent filed I.A. No. 21 of 2021. 6. Ext.P3 is a copy of the proof affidavit filed by PW-1 before the Rent Control Court. A perusal of Ext.P3 would reveal that evidence to prove existence of the landlord-tenant relationship alone has been stated in it. Absolutely nothing touching the grounds for eviction, namely, arrears of rent and bona-fide need has been stated in the proof affidavit. 7. Ext.P6 is the impugned order. Main contention of the petitioner is that if PW-1 is examined again, that will amount to filling up of lacuna in the evidence on the side of the respondent. The Rent Control Court while dealing with that contention observed that the preliminary point, whether the denial of landlord-tenant relationship is bona-fide, has already been relegated to be decided after trial on the eviction petition. It means that the Rent Control Court decided to record evidence on all the issues involved in the case and to decide the question regarding maintainability thereafter. 8. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. As per the first proviso to Section 11(1), nothing contained in the Section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act. As per the first proviso to Section 11(1), nothing contained in the Section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act. As per the second proviso to Section 11(1), where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona-fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this Section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 9. Whenever there is denial of title of the landlord or the landlord-tenant relationship, the Rent Control Court is obliged to decide that question and depending upon the finding thereon, the court has to proceed further either directing the petitioner to approach the civil court or proceed to consider the grounds for eviction on merits. When the Rent Control Court was satisfied that recording evidence was necessary to decide the question regarding maintainability, there is nothing illegal in ordering that the issues can be considered after recording evidence. 10. The principle envisaged in Order XIV, Rule 2 of the Code of Civil Procedure, 1908 is that the court is expected to pronounce the judgment on all issues, subject to the exception that if the preliminary issue relates to the jurisdiction of the court or a bar created by any law, it is possible for the court to decide the case on such preliminary issue. Therefore, the general rule is that the court should pronounce its judgment on all issues. Section 23 of the Act does not say that the provisions of Order XIV are applicable to a proceeding under the Act. However, when a preliminary question relating to landlord-tenant relationship arises in a petition under Section 11 of the Act and the court is of the opinion that only on recording evidence that question can be decided, there is nothing wrong for the court to direct recording of evidence on all issues. In that regard, the principle underlying Order XIV, Rule 2 of the Code can be followed in a Rent Control Petition. 11. In that regard, the principle underlying Order XIV, Rule 2 of the Code can be followed in a Rent Control Petition. 11. Having considered the matter in the above perspective, we are of the view that the Rent Control Court rightly had allowed I.A. No. 21 of 2021. By recalling PW-1 for further examination, the petitioner does not put to any prejudice inasmuch as, he will get every opportunity for cross- examination. Of course, while doing so, the Rent Control Court shall guard against PW-1 withdrawing from any admissions made before court during her earlier examination. 12. In view of what are stated above, the Original Petition is dismissed.