Kerala High Court
Lalu Mathew vs Bino Alexander on 24 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
O.P.(RC) NO.17 OF 2022
AGAINST THE ORDER DATED 12.01.2022 IN I.A.NO.4 OF 2021 IN
R.C.A.NO.1 OF 2020 ON THE FILE OF THE RENT CONTROL
APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I),
MAVELIKKARA
PETITIONER/APPELLANT:
LALU MATHEW
AGED 47 YEARS, S/O.JOHN MATHEW, VALIYA MANNIL
(H), KEEZHVAIPOORU MURI, MALLAPPALLY VILLAGE,
CHENGANNUR, PATHANAMTHITTA.
BY ADVS.
JACOB P.ALEX
JOSEPH P.ALEX
MANU SANKAR P.
AMAL AMIR ALI
RESPONDENT/RESPONDENT:
BINO ALEXANDER
AGED 46 YEARS, S/O.C.D.ALEXANDER, CHIRAMEL
PUTHENVEETTIL, THITTAMEL MURI, CHENGANNUR
VILLAGE, ALAPPUZHA - 689 121.
BY ADV N.ASHOK KUMAR
THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL
HEARING ON 16.03.2022, THE COURT ON 24.03.2022 DELIVERED
THE FOLLOWING:
2
O.P.(RC) No17 of 2022
JUDGMENT
Ajithkumar, J.
The petitioner is the appellant in R.C.A.No.1 of 2020
pending before the Rent Control Appellate Authority
(Additional District Court-I), Mavelikkara. He has filed I.A.No.4
of 2021 in the appeal under Order XXVI, Rules 9 and 10A read
with Section 94(e) of the Code of Civil Procedure, 1908,
seeking appointment of a commission. The application was
dismissed by the Appellate Authority on 12.01.2022 as per
Ext.P6 order. Challenging the legality of the said order, this
original petition has been filed invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution
of India.
2. The respondent filed R.C.P.No.4 of 2017 before the
Rent Control Court (Munsiff), Chengannur, seeking eviction of
the petitioner under Section 11(3) of the Act. The claim of the
respondent was that he wanted the petition schedule shop
room, which has an area of about 750 sq.ft. and situated in
the ground floor of a three-storied building, for the purpose of
O.P.(RC) No17 of 2022
starting a computer shop and to run a dental clinic by his
wife, who is a dental surgeon. The petitioner resisted the
petition for eviction on various grounds as contained in Ext.P2
objection. The Rent Control Court, after trial, ordered eviction,
a copy of which is produced as Ext.P3. The said order is under
challenge in R.C.A.No.1 of 2020 filed by the petitioner.
3. The petitioner, on the basis of the contention that
during the pendency of the appeal the first floor area in the
building, having a plinth of above 1800 sq.ft. fell vacant, filed
I.A.No.4 of 2021. Ext.P4 is the copy of the said application.
The respondent filed an objection contending that it was quite
unnecessary to appoint a commission as he admits that the
first floor which was earlier occupied by M/s Kosamattom
Finance was surrendered to the respondent three months
before. The Appellate Authority on observing that in order to
decide the dispute involved in the appeal a report as sought in
Ext.P4 application was unnecessary and the application was
only an attempt to delay the proceedings in the appeal,
dismissed it as per Ext.P6 order.
O.P.(RC) No17 of 2022
4. On 21.01.2022, this petition was admitted and
notice was directed to be issued to the respondent.
Proceedings in the R.C.A.No.1 of 2020 was stayed for a period
of one month and the order has been extended from time to
time.
5. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
6. The contention of the petitioner is that considering
the need urged by the respondent, the first floor area now
remains vacant is very much suitable for that purpose. It is
also submitted that in the nature of the rival contentions, it is
absolutely necessary to ascertain whether both the upper
floors in the building are available vacant, the area of the said
portions of the building and such other matters. The learned
counsel further would contend that although a subsequent
event, the first floor getting vacant has a bearing on the need
urged by the respondent, and therefore, appointment of a
commission during the appellate stage has become inevitable.
O.P.(RC) No17 of 2022
In order to substantiate his contention that such subsequent
events can be brought in evidence, he placed reliance on Hasmat
Rai and another v. Raghunath Prasad [(1981) 3 SCC 103]
and Sheshambal (dead) through LRs. v. Chelur Corporation
Chelur Building and others [(2010) 3 SCC 470].
7. It was further contended that the Appellate
Authority has powers in the matter of enquiry in an eviction
proceedings as that of the Rent Control Court for which the
learned Counsel relies on the decisions in Irvin Johan
Jayarajan v. Madhavi @ Narayani Amma and others
[2009 (3) KLT SN 46] and Kunhammed Koyam v. M/s
Nallalam Saw Mills and others [2010 (4) KLT 79]. Yet
another point raised by the learned counsel for the petitioner
is that the landlord has no unfettered right to choose
whatever premises he wants, and therefore, the availability of
vacant possession of the first floor area in the building has a
decisive relevance and in that regard, he placed reliance on
Janatha Drugs v. Maithri Construction and others [2007
(4) KLT 625].
O.P.(RC) No17 of 2022
8. The learned counsel for the respondent, on the
other hand, would contend that the bona fide need of the
landlord has to be decided with reference to the purpose for
which he demands the building, and therefore, the fact that
the first floor area got vacated, has no relevance in this case.
It is submitted that the first floor of the building was
constructed in such a manner that it could be occupied by
some banking institutions only and therefore non-occupation
of the same by the respondent for the projected need of
starting a computer business and running a dental clinic is
quite justified.
9. The matters required to be ascertained in Ext.P4
commissioner application are the following:
'(1) To ascertain and report regarding the vacant two
floors situated on the first and second floor on the
petition schedule building.
(2) To ascertain and report regarding the floor area
of the above mentioned first and second floors
situated on the petition schedule building.
(3) To ascertain other matters which required by the
appellant at the time of visit by the Advocate
Commissioner.'
O.P.(RC) No17 of 2022
10. Although, it is stated in the affidavit filed in support
of Ext. P4 application that the first floor and second floor in
the building are now vacant, what is asserted during the
course of arguments is that the first floor was surrendered to
the respondent by the tenant. It is not stressed that the
second floor in the building is lying vacant. In the objection
filed by the respondent, Ext.P5, it is categorically admitted
that the first floor earlier occupied by M/s Kosamattom
Finance is now vacant. It is however asserted that the second
floor is occupied by a computer shop.
11. Having heard both sides and considered the
materials on record, we find that the first floor in the three-
storied building was surrendered to the respondent by the
tenet during pendency of R.C.A.No.1 of 2020.
12. In Hasmat Rai (supra) the Apex Court held that,
if the tenant is in a position to show that the need or
requirement of the landlord no more exists because of some
subsequent event, it would be open to the tenant to point out
such events and the court, including the Appellate Authority,
O.P.(RC) No17 of 2022
has to examine, evaluate and adjudicate the same. Similarly,
in Sheshambal (supra), the Apex Court held that while the
position is that the right to relief in a litigation must be judged
by reference to the date of commencement of the
proceedings, it is equally true that if subsequent to the
commencement of the litigation, certain developments take
place that have a bearing on the right to the relief claimed by
the party, such subsequent events cannot be shut out from
consideration. In view of that legal position, the Appellate
Authority is expected to examine the fact pointed out by the
petitioner as to whether the same has an impact on the relief
claimed by the respondent. Such a contention cannot simply
be brushed aside as a subsequent event.
13. This Court in Irvin John Jayarajan (supra) held
that 'the power of the Rent Control Appellate Authority and
the Rent Control Court to permit adduction of evidence and
hold enquiries are coterminous. Whatever power the Rent
Control Court has to receive evidence, the Appellate Authority
also has.' As regards the powers of the Appellate Authority
O.P.(RC) No17 of 2022
while dealing with an appeal, this court again in Kunhammed
Koya (supra) held that being Appellate Authority under
Section 18 of the Act, which has power co-equal with Rent
Control Court in the matter of adduction of evidence, the
Appellate Authority has power to permit adduction of evidence
if parties are desirous.
14. In the light of the above said principle, it is clear
that the Appellate Authority, in exercise of its powers under
Section 18(2) of the Act, can issue a commission, provided
the matters sought to be ascertained have relevance and
calling for such a report is necessary.
15. This Court in Janatha Drugs (supra) held that,-
'9. xx xx xx if it is shown by the tenant that the
landlord has some other vacant premises in his
possession, that by itself may not be sufficient to
negative the landlord's claim but in such a situation the
Court would expect the landlord to establish that the
premises which is vacant is not suitable for the purpose
of his occupation or for the purpose for which he
requires the premises in respect of which the action is
commenced in the Court. It would, however, be a bald
statement unsupported by the Rent Act to say that the
O.P.(RC) No17 of 2022
landlord has an unfettered right to choose whatever
premises he wants and that too irrespective of the fact
that he has some vacant premises in possession which
he would not occupy and try to seek to remove the
tenant. This approach would put a premium on the
landlord's greed to throw out tenants paying lower rent
in the name of personal occupation and rent out the
premises in his possession at the market rate."
16. The fact that the entire first floor area of the
building fell vacant during pendency of the Appeal certainly
has relevance while deciding the matter in dispute. But, what
are sought to be ascertained as per Ext.P4 commission
application are not disputed facts. The purpose of calling for a
report through a commission is elucidation of some matter
which is in dispute. Here the fact that the first floor of the
building belonging to the respondent was surrendered by the
tenant during the pendency of R.C.A.No.1 of 2020 is not a
disputed fact. The floor area of that portion is about 1800
sq.ft. and that fact, again, is not in dispute. As held in
Janatha Drugs (supra), it is for the landlord to establish
that the premises, which is vacant, is not suitable for the
purpose of his occupation or for the purpose for which he
O.P.(RC) No17 of 2022
requires the premises. Taking into account those aspects of
the matter, it cannot be said that a commission as requested
in Ext.P4 application, at the instance of the petitioner-tenant,
is required to be deputed. The Appellate Authority is
empowered to appoint a commission, is not a justification for
appointment of a commission. What is decisive is whether
such a report is necessary to take a just decision in the case.
The Appellate Authority has considered the requirement of
such a report and holding that it was unnecessary, the
application was dismissed. We are of the view that the
Appellate Authority rightly had dismissed the said application.
We do not feel that the said finding is wrong or an erroneous
exercise of jurisdiction requiring this Court to interfere by
invoking jurisdiction under Article 227 of the Constitution of
India. The original petition is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
O.P.(RC) No17 of 2022
APPENDIX OF OP (RC) 17/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION IN RCP
NO.4/22017 BEFORE THE RENT CONTROL
COURT, CHENGANNOOR.
Exhibit P2 TRUE COPY OF THE OBJECTION FILED IN
RCP NO.4/2017 BEFORE THE RENT CONTROL
COURT, CHENGANNOOR.
Exhibit P3 TRUE COPY OF THE ORDER DATED
28/10/2019 OF THE RENT CONTROL COURT,
CHENGANNOOR.
Exhibit P4 TRUE COPY OF THE IA NO.4 OF 2021 IN
RCA NO.1 OF 2020 BEFORE THE RENT
CONTROL APPELLATE AUTHORITY,
MAVELIKKARA.
Exhibit P5 TRUE COPY OF THE OBJECTION FILED IN IA
NO.4 OF 2021 IN RCA NO.1 OF 2020
BEFORE THE RENT CONTROL APPELLATE
AUTHORITY, MAVELIKKARA.
Exhibit P6 TRUE COPY OF THE ORDER DATED
12/01/2022 IN IA NO.4 OF 2021 IN RCA
NO.1 OF 2020 OF THE RENT CONTROL
APPELLATE AUTHORITY, MAVELIKKARA.
Exhibit P7 TRUE COPY OF I.A.NO.5 OF 2022 DATED
15.03.2022 FILED BY THE PETITIONER IN
R.C.A.NO.1 OF 2020 BEFORE THE RENT
CONTROL APPELLATE AUTHORITY,
MAVELIKKARA.
O.P.(RC) No17 of 2022
RESPONDENT EXHIBITS
Exhibit R1(A) TRUE COPY OF THE LETTER DATED
09.05.1996 ALONG WITH SPECIFICATION
FOR THE CONSTRUCTION OF STRONG ROOM
ISSUED BY THE BANK OF MADURA LTD. TO
THE RESPONDENT/LANDLORD.
Exhibit R1(B) TRUE COPY OF THE TERMINATION OF LEASE
AGREEMENT ISSUED BY THE ICICI BANK
DATED 31.05.2022 TO THE
RESPONDENT/LANDLORD.
Exhibit R1(C) TRUE COPY OF THE VACATING LETTER DATED
01.07.2021 ISSUED BY KOSAMATTOM
FINANCE LTD. TO THE
RESPONDENT/LANDLORD.
Exhibit R1(D) TRUE PHOTOGRAPHS OF THE PETITION
SCHEDULE BUILDING AND THE 1ST FLOOR
AREA CONTAINING STRONG ROOM & LOCKER
FACILITY.
