Abdulla Haji C K vs Moidu Palollathil

Kerala High Court

Abdulla Haji C K vs Moidu Palollathil on 22 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                    THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                          &
                    THE HONOURABLE MR. JUSTICE EASWARAN S.
       WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                            OP (RC) NO. 201 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 10.11.2023 IN RCP NO.34 OF 2022
OF MUNSIFF COURT, NADAPURAM
PETITIONER(S)/PETITIONERS IN IA NOS.3 AND 4/2023 AND PETITIONERS
IN RCP:

       1      ABDULLA HAJI C K
              AGED 62 YEARS
              S/O. KUNHALI CHAKKIDANDI HOUSE, VELLIYOD AMSOM,
              BHOOMIVATHUKKAL DESOM, KODIYOORA P.O.,
              KOZHIKODE DISTRICT, PIN - 673506

       2      PILACHERI MAMI HAJJUMMA,
              AGED 70 YEARS
              W/O. MAMMU HAJI, SWASTHAM, KUMMANKODE AMSOM,
              NADAPURAM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT,
              PIN - 673504

              BY ADVS.
              R.K.MURALEEDHARAN
              ATHIRA A.MENON


RESPONDENT(S)/RESPONDENT IN IA NOS.3 AND 4/2023 AND RESPONDENT IN
RCP:

              MOIDU PALOLLATHIL,
              AGED 52 YEARS
              S/O.SOOPPY HAJI VALAYAM AMSOM, CHERUMOTH DESOM
              CHERUMOTH P.O, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN
              - 673517

              BY ADVS.
              M.PROMODH KUMAR
              MAYA CHANDRAN(K/2573/1999)


       THIS   OP    (RENT   CONTROL)    HAVING   COME   UP   FOR   ADMISSION   ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (RC) NO. 201 OF 2023         -2-



                             JUDGMENT

AMIT RAWAL, J.

1. Orders dated 10.11.2023 Exts.P8 and P9 dismissing I.A.Nos.3 and 4 of 2023 seeking the assistance of the Rent Controller at the instance of the petitioners - landlords for appointment of the Commissioner to inspect the adjacent building and also accepting the documents, are under challenge in the present petition.

2. Petitioners - landlords instituted the Rent Petition RCP No.34 of 2022 for seeking the eviction of the respondent - tenant on various grounds including the ground of bona fide necessity. Since the parties are at variance, at the stage when the landlord was examining himself, was extensively cross-examined on 27.10.2023. In his testimony/cross examination it has come that about 140 rooms are available in the adjacent building. The cross examination was to the extent by taking the benefit of the proviso to Section 11(3) of the Kerala OP (RC) NO. 201 OF 2023 -3- Buildings (Lease and Rent Control) Act. It is pertinent to mention here that during the stage of evidence of the petitioners - landlords, two applications Exts.P5 dated 27.10.2023 and P6 dated 26.10.2023 were submitted for taking the assistance of Advocate Commissioner for inspecting the adjacent building which was the subject matter of cross examination and also to place on record Assessment Register to show that the rooms were not vacant, which have been erroneously declined.

3. Learned counsel appearing on behalf of the petitioners submitted that both the applications have been dismissed primarily on the ground that the petitioners - landlords wanted to fill up the lacunae and appropriate stage has not come as the evidence is still going on. The finding would have been justified had the prayer been made for placing on record the additional evidence. Thus, the orders are illegal and perverse.

4. On the other hand, learned counsel appearing on behalf of the tenant submitted that the prayer in the OP (RC) NO. 201 OF 2023 -4- application Ext.P5 was with respect to the inspection of the disputed building and not with regard to the additional building but do not deny the fact that the evidence of the landlords is still continuing.

5. We have heard learned counsel for the parties and appraised the paper book. The impugned orders declining the applications reads as under: "I.A.03/23 in R.C.P.34/2022

ORDER Both sides represented. This is a petition to append the Advocate Commissioner. The prayer in the petition is that at the time of evidence of PW1 and PW2. PW2 has mistakenly stated about 140 rooms. So, to prove the same an Advocate Commissioner has to be appointed. At present, the evidence of the case has already started and PW1 and PW2 got examined. If there was mistake in the deposition could have been cleared at the time of re examination which has not been done. The present application is only to fill up the lacunae. The petition is only to be dismissed with cost."

ORDER Both sides represented. Heard both sides. This is a petition to receive the documents. The documents produced are highly belated and has not even produced at the time of trial. It is only to fill up the lacunae crept in the evidence of PW1 and PW2. The petition lacks bonafides.

Hence, the petition dismissed with cost."

6. We would have been in agreement with the orders had the landlords evidence been completed and stage could have been for additional evidence but, that is not the position here in this case. Evidence was going on and after cross examination two applications, as stated above, Exts.P5 and P6 have been filed. Landlord cannot be denied an opportunity to prove the case in support of the pleadings, thus, we are of the view that the orders impugned are illegal and perverse and are accordingly set aside. Applications aforesaid are allowed. Trial Court is directed to appoint the Advocate Commissioner to ascertain the availability of rooms in OP (RC) NO. 201 OF 2023 -6- the adjacent building to which the specific questions as evident from the cross examination dated 13.10.2023 Ext.P4 were put and also place on record the documents subject to the mode of proof.

Original petition stands allowed.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE vv OP (RC) NO. 201 OF 2023 -7- APPENDIX OF OP (RC) 201/2023 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE MEMORANDUM IN RCP NO.

34/2022 ON THE FILE OF MUNSIFF OF NADAPURAM DATED 31.08.2022 Exhibit-P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT DATED 25.07.2023 Exhibit-P3 TRUE COPY OF THE CHIEF AFFIDAVIT OF PW2 DATED 07.10.2023 Exhibit-P4 TRUE COPY OF THE CROSS EXAMINATION OF THE PW2 DATED 13.10.2023 Exhibit-P5 TRUE COPY OF THE IA NO. 3/2023 ALONG WITH THE AFFIDAVIT FILED BY THE PETITIONERS DATED 27.10.2023 Exhibit-P6 TRUE COPY OF THE AFFIDAVIT ALONG WITH IA NO. 4/2023 IN RCP NO. 34/2022 ON THE FILE OF MUNSIFF OF NADAPURAM (IN- CHARGE) DATED 26.10.2023 Exhibit-P7 TRUE COPIES OF THE COUNTER STATEMENT FILED BY THE RESPONDENT DATED 06.11.2023 Exhibit-P8 TRUE COPY OF THE ORDER IN IA NO.

3/2023 IN RCP NO. 34/2022 ON THE FILE OF MUNSIFF OF NADAPURAM DATED 10.11.2023 Exhibit-P9 TRUE COPY OF THE ORDER IN IA NO.

4/2023 IN RCP NO. 34/2022 ON THE FILE OF MUNSIFF OF NADAPURAM DATED 10.11.2023