Abdulla Haji C K vs Moidu Palollathil
2024 Latest Caselaw 12864 Ker

Citation : 2024 Latest Caselaw 12864 Ker
Judgement Date : 22 May, 2024

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

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

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:

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.