Chethil Tharemmal Rasheeda vs Peedikayilakath Muhammad
2021 Latest Caselaw 21851 Ker

                                                                C.R.

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                  &
           THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY,THE 3RD DAY OF NOVEMBER 2021/12TH KARTHIKA,1943
                    O.P.(RC) NO. 83 OF 2021
AGAINST THE ORDER DATED 10.08.2021 IN I.A.NO.2 OF 2021 IN
  R.C.P.NO.4 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF
                        COURT), PAYYOLI
PETITIONER:

            CHETHIL THAREMMAL RASHEEDA
            AGED 42 YEARS
            W/O.MUHAMMAD, IRINGAL AMSOM DESOM,
            KOTTAKKAL (PO), KOYILANDY TALUK,
            KOZHIKODE (DIST.) - 673 521.
            BY ADV K.DEEPA (PAYYANUR)


RESPONDENT/S:

            PEEDIKAYILAKATH MUHAMMAD
            AGED 58 YEARS
            S/O.ABOOBACKER HAJI, 'MUSTHALEEF', IRINGAL
            AMSOM DESOM, KOTTAKKAL (PO), KOYILANDY TALUK,
            KOZHIKODE (DIST.) - 673 521.
            BY ADVS.
            SRI.B.KRISHNAN
            SRI.R.PARTHASARATHY



     THIS O.P.(RENT CONTROL) HAVING COME UP FOR FINAL
HEARING     ON   03.11.2021,    THE   COURT   ON   THE   SAME    DAY
DELIVERED THE FOLLOWING:
                                   2
O.P.(RC) No. 83 of 2021


                                                                    C.R.

                            JUDGMENT

Ajithkumar, J.

The respondent filed Rent Control Petition No.4 of 2017

before the Rent Control Court (Munsiff Court), Payyoli seeking

eviction of the petitioner under Section 11(2)(b) and 11(3) of

the Kerala Buildings (Lease and Rent Control) Act, 1965. The

petitioner filed Interlocutory Application No.2 of 2021 in the

R.C.P. for appointment of a commission. The respondent

resisted it by filing a counter affidavit. The Rent Control Court

dismissed the application as per Ext.P5 order dated

10.08.2021. The petitioner challenges legality of Ext.P5 order

in this original petition filed under Article 227 of the

Constitution of India.

2. Heard the learned counsel appearing for the

petitioner and the respondent.

3. The learned counsel for the petitioner submitted

that the respondent gave evidence as PW1 in the R.C.P and

during cross examination he undertook to take out a

O.P.(RC) No. 83 of 2021

commission, but later shied away and hence, the petitioner

was compelled to file I.A.No.2 of 2021. The learned counsel

would contend that the claim for eviction under Section 11(3)

of the Act was resisted by the petitioner on the ground inter

alia that the respondent has been in possession of several

other vacant rooms. PW1 admitted that he owns 14 rooms.

However he took a stand that those rooms were let out to

others, which according to the petitioner is untrue. It was in

the said circumstances the petitioner was compelled to take

out a commission, but the Rent Control Court illegally

disallowed the application, I.A.No.2 of 2021.

4. Per contra, the learned counsel appearing for the

respondent would contend that a question was put dubiously

to PW1 asking his willingness to take out a commission and

sticking to the inadvertent answer given by him the petitioner

wanted to take out a commission, which was an attempt to

delay and obstruct trial of the case.

5. Chakko P. Mathew v. Kuttappan [2002 KHC

583] and Vayalilakath Abdul Nazar v. Paruthuthodi

O.P.(RC) No. 83 of 2021

Mammad Koya [2011 (2) KLT 914] are the authorities

sufficient to hold that the burden to prove the first proviso to

section 11(3) of the Act is on the tenant. In Ashraf v.

Shamnas [2020 KHC 3391] it was further held that only if

it is established by the tenant that there are other suitable

buildings in the possession of the landlord for the need

projected, the burden shifts to the landlord to prove special

reasons.

6. Therefore, it is the burden of the petitioner-tenant

to prove availability of vacant rooms with the respondent and

only on such proof, the respondent-landlord has the liability to

show special reasons to get an order of eviction. In that view

of the matter, it was only prudent for the petitioner to take

out a commission sufficiently early, if she wanted to prove the

fact of availability of vacant rooms with the respondent. All

the same, had there been vacant rooms available in the

possession of the respondent, it would be a reasonable

expectation of the petitioner to bring that fact in evidence

through cross examination of the respondent. Having failed,

O.P.(RC) No. 83 of 2021

the petitioner filed the application for appointing a commission

for local inspection. In a normal situation, a commission

application to collect evidence after commencement of trial is

not justified. In this case we notice that during cross-

examination, PW1 stated his preparedness to take out a

commission for the specific purpose of showing that no vacant

room is available with him. It was on 02.08.2021. Having

failed only the petitioner filed I.A.No.2 of 2021 on

08.08.2021. After considering the above facts and

circumstances, we are of the view that the Rent Control Court

ought to have allowed the application, which ultimately would

help the court to take a just decision in the case.

7. The second query posed in the application for

appointment of commission is, 'to examine the rent

agreements with respect to the rooms let out by the

respondent and make a report'. We are afraid, a

commissioner deputed for local inspection can be asked to

make such a report. The application, I.A.No.2 of 2021 was

filed under Order XXVI, Rule 9 of the Code of Civil Procedure,

O.P.(RC) No. 83 of 2021

1908 read with Section 23 of the Act. A commission so

appointed has to ascertain and report to the court the facts he

noticed on his local inspection and that are required or proper

for elucidating the matter in dispute. Position may be different

if appointment is under Rule 11 or 13 of Order XXVI of the

Code.

8. The report of a commissioner shall form part of the

record and be in evidence in the suit by virtue of the

provisions of Order XXVI, Rule 10(2) of the Code. This is a

rule of evidence as is seen in many statutes other than the

Indian Evidence Act, 1872. Even though the said provision

enables the court to receive a report of a commission in

evidence without examination of the commissioner in court,

that does not enable the court to receive in evidence

inadmissible items contained in the report. What is exempted

is oral examination of the commissioner, who is an officer of

the court, to prove the facts that are perceived by him during

the inspection and stated in his report. To that extent Order

XXVI, Rule 10(2) of the Code is an exception to the rule

O.P.(RC) No. 83 of 2021

contained in section 60 of the Evidence Act that oral evidence

must always be direct.

9. What the commissioner has to report with

reference to the question No.2 in I.A.No.2 of 2021 mentioned

above is the oral account of the contents of documents;

namely, rent agreements. Section 63 of the Evidence Act

defines secondary evidence. Fifth item in Section 63 is, 'oral

accounts of the contents of a document given by some person

who has himself seen it'. Therefore, if oral account of the

contents of rent agreements is included in the report of the

commissioner, that is only secondary evidence and, naturally,

the bar for admission to secondary evidence is attracted.

Section 64 of the Evidence Act is based on the 'best evidence'

rule, which is fundamental. Section 64 mandates that

documents must be proved by primary evidence except in the

cases where the secondary evidence is permitted. If the

primary evidence is not available only, one is entitled to let in

secondary evidence. In other words, on establishing the

foundation for entitling production of secondary evidence as

O.P.(RC) No. 83 of 2021

enumerated in Section 65 alone, one can adduce secondary

evidence to prove a fact.

10. It may be noted that when the petitioner demands

the commissioner to verify the lease agreements, it

presupposes existence of such documents. If so, after

complying with the provisions of Section 65(a) of the Evidence

Act, only secondary evidence can be allowed to be let in.

Section 65(a) reads thus:-

"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--

(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;"

There is absolutely no such situation in this case and hence

the petitioner cannot go for secondary evidence in relation to

the lease agreements.

O.P.(RC) No. 83 of 2021

11. It may further be noted that Section 91 of the

Evidence Act insists that if a matter reduced to the form of a

document, no evidence can be given in proof of the terms of

such matter, except the document itself or secondary

evidence of its contents, in case in which the secondary

evidence is admissible under the provisions contained in the

Act. Going by the said provision also, the petitioner has no

right to adduce secondary evidence, that is to say, oral

accounts of the contents of lease agreements in question.

12. Upshot of the above discussion is that Order XXVI,

Rule 9 of the Code does not contemplate appointment of a

commission for examination of a document and report to the

court about its contents. Hence, we hold that the second

question posed in Ext.P3 commission application is not liable

to be allowed. The other matters sought to be ascertained in

the application are permissible.

13. Accordingly, we allow this Original Petition. On

setting aside Ext.P5 order dated 10.08.2021, I.A.No.2 of 2021

in R.C.P.No.4 of 2017 on the file of the Rent Control Court,

O.P.(RC) No. 83 of 2021

Payyoli is allowed, except with respect to the second query in

it. The Rent Control Court will take the follow up.

14. The trial of R.C.P.No.4 of 2017 is almost complete.

Being an old case, the Rent Control Court is directed to finally

dispose of the same, as expeditiously as possible, at any rate,

within a period of three months from the date of receipt of a

certified copy of this judgment.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE

dkr

O.P.(RC) No. 83 of 2021

APPENDIX OF OP (RC) 83/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION FILED BEFORE THE RENT CONTROL COURT, PAYYOLI AS R.C.P.NO.04 OF 2017 BY THE PETITIONER/RESPONDENT HEREIN.

Exhibit P2 TRUE COPY OF THE COUNTER STATEMENT FILED IN R.C.P.NO.04 OF 2017 BY THE RESPONDENT/PETITIONER HEREIN.

Exhibit P3 TRUE COPY OF THE COMMISSION PETITION DATED 08/08/2021 FILED AS I.A.NO.02 OF 2021 IN R.C.P.NO.04 OF 2017 BY THE PETITIONER HEREIN TO APPOINT AN ADVOCATE COMMISSIONER.

Exhibit P4 TRUE COPY OF THE COUNTER IN I.A.NO.02 OF 2021 IN R.C.P.NO.04 OF 2017 BY THE RESPONDENT HEREIN.

Exhibit P5 TRUE COPY OF THE ORDER OF THE RENT CONTROL COURT IN I.A.NO.02 OF 2021 IN R.C.P.NO.04 OF 2017.