hold good for yet another reason as well. Besides being the
person, who filed the rent control petition, projecting the
bonafide need for occupation of the petition schedule shop
room for starting business for her husband, she is a
competent witness to depose for her husband in view of the
provision under Section 120 of the Evidence Act. Sec.120 of
the Indian Evidence Act, 1872 which reads thus:
Sec 120. Parties to civil suit, and their wives or
husbands. - Husband or wife of person under criminal
trial.- In all civil proceedings the parties to the suit, and
the husband or wife of any party to the suit, shall be
competent witnesses. In criminal proceedings against any
person, the husband or wife of such person, respectively,
shall be competent witness.
8. True that the area of operation of CPC is limited by
Section 23 of the Act. The said Section under the caption
'Summons etc.-' specifies the provisions of CPC which are
applicable to rent control proceedings. It also undoubtedly
reveals that the authorities under the Act are given powers
of which are vested in a civil court when dealing with
matters enumerated therein which admittedly includes
'examining witnesses on oath' under sub-section (1) (d).
Thus, it is evident that when dealing with 'examination of
witnesses on oath' it has the power vested in a Court under
the Code of Civil Procedure when trying a suit and therefore,
in the light of the provision under Section 120, the husband
or wife of any party in the said suit shall be a competent
witness in such a proceeding before the Rent Control Court.
In such circumstances, going by Sec. 120 of the Evidence Act,
the petitioner who is none other than the spouse of the
person for whose need eviction of the revision petition is
sought for, has to be treated as a competent witness and
since she was examined as PW1 the non-examination of the
husband of the petitioner would be of no consequences. It is
relevant to note, in the case on hand, the very rent control
petition itself was filed by her on the ground of bonafide
requirement of the shop room in question, for her husband
to start the business. In the circumstances it cannot be said
that she had deposed in respect of matters which were not
within her personal knowledge. There is no case for the
revision petitioner that she had not deposed before the Rent
Control Court in tune with the pleadings in the Rent Control
Petition regarding the bonafide need or that something
which would discredit her version was elicited from her. A
long and short of the discussions is that there is no merit in
the contention based on the non-examination of the
landlady's husband.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
&
MR. JUSTICE K.P.JYOTHINDRANATH
R.C.R.No. 13 of 2018
MANGATTIL UMMER Vs UMMU HABEEBA
Dated:16th day of January, 2018
under Section 11(3) of Kerala Building (Lease and Rent
Control) Act 1965 (herein after referred as “the Act” only), is
under challenge in this revision petition, preferred by the
respondent-tenant. The respondent herein, the petitioner in
R.C.P No.18/2014 on the file of the Rent Control Court, Tirur,
who is the landlady filed the same citing the ground of
bonafide need to start a wholesale medical distribution shop
for her jobless husband. It was further pleaded therein that
her husband was working in medical distribution field and
presently, he is depending on her and she is ready to give
him necessary financial assistance as well, for setting up the
said business. Before the Rent Control Court, on the side of
the petitioner/the respondent herein, she was examined as
PW1 besides getting marked Exts. A1 to A4. On the side of
the revision petitioner/the respondent therein, his Power of
Attorney holder, Mr. Salim.M was examined as RW1. No
documentary evidence was adduced on his side. Ext.C1 is
the commissioners report dated 22.01.2016 and Ext.C2 is
the sketch appended therein. After evaluating the evidence
on record and considering the rival contentions, the Rent
Control Court allowed the petition under Section 11(3) of
the Act and directed the revision petitioner to put the
petitioner in vacant possession of the petition schedule room
within the time stipulated thereunder. Feeling aggrieved by
the said order, the revision petitioner herein took up the
matter in appeal as R.C.A.No.22/2016. The Rent Control
Appellate Authority, as per the impugned judgment
dismissed the appeal and confirmed the order passed by the
Rent Control Court. It is in the said circumstances, that theR.C.R.No. 13 OF 2018 3
captioned revision petition has been filed.
2. Heard the learned Counsel for the revision
petitioner as also the learned Counsel for Caveator.
3. The tenancy is not in dispute. Evidently, the
revision petitioner disputed the bonafide need raised by the
respondent herein. However, on evaluating the evidence on
record, including the oral and documentary evidence, the
Rent Control Court arrived at a conclusion that the bonafide
need manifested in actual need and the petitioner had
succeeded in establishing the same and the said findings got
confirmance in the impugned appellate order. As noticed
herein before, the bonafide need projected in the petition is
that the petitioner's jobless husband, who was earlier
working in the field of medical distribution intends to start a
business of his own in the field of medical distribution and
for setting up the same, petition schedule room is required.
Evidently, this requirement was found genuine and there is
concurrent finding on the issue of bonafide need underR.C.R.No. 13 OF 2018 4
Section 11(3) of the Act. Before adverting to the contentions,
we ween that it is only worthwhile to refer to a
Constitutional Bench decision of the Hon'ble Apex Court in
Hindustan Petroleum Corporation Ltd. V. Dilbahar Singh
reported in 2014(4) KLT 182 (SC). It was held therein that
a finding of fact recorded by Court/Authority below, if
perverse or has been arrived at without consideration of the
material evidence, or such finding is based on no evidence or
misreading of the evidence or is grossly erroneous that, if
allowed to stand, it would result in gross miscarriage of
justice, are circumstances where the revisional court could
exercise its jurisdiction. This is because in such
circumstances it would not be treated as a finding in
accordance with law. In the light of Hindustan Petroleum's
case (supra), it is evident that there is only a little scope for
interference with a concurrent finding or facts in exercise of
revisional jurisdiction. Therefore, the question is whether
the revision petitioner has made out any such ground orR.C.R.No. 13 OF 2018 5
grounds for invocation of the revisional jurisdiction, in the
case on hand?
4. Though many a grounds were raised by the
revision petitioner to challenge the judgment passed by the
Appellate Authority confirming the order passed by the Rent
Control Court, the core contention is with respect to the nonexamination
of the husband of the petitioner-landlady for
whose requirement, eviction of the revision petitionertenant
from the petition schedule building was sought for.
We will, therefore, consider the question whether nonexamination
of the said person, who is none other than the
husband of the petitioner-landlady, is fatal enough to entail
dismissal of the Rent Control Petition, filed under Section
11(3) of the Act. To buttress the contention that it is grave
enough to entail dismissal of the rent control petition, the
learned Counsel for the revision petitioner relied on a
decision of Division Bench of this Court in J.C.R.Trading (P)
Ltd. v. Varghese reported in 2009(1) KLT 963. We areR.C.R.No. 13 OF 2018 6
afraid, the said contention raised by the petitioner relying on
the decision in J.C.R.Trading (P) Ltd (supra) cannot be
sustained for more than one reason.
5. A perusal of decision in J.C.R.Trading (P) Ltd's
Case (supra) would reveal that it was a case where, the
petition for eviction was filed on the ground of bonafide
need for own occupation and also for requirement for
additional accommodation. The landlord was not examined
before the Rent Control Court and in fact, only his power of
attorney holder was examined. In such circumstances, based
on the provisions of Rules 1 and 2 of Order III of the Code of
Civil Procedure (for short 'the Code') the Hon'ble Apex Court
held that the word “acts” employed under Rules 1 and 2 of
Order III, of the Code could mean only “acts” done by the
Power of Attorney holder in exercise of the power granted
by the instruments. The term “acts” “would not include
deposing in place and instead of the principal.” In Janki
Vashdeo v. Indusind Bank reported in 2005(2) KLT 265R.C.R.No. 13 OF 2018 7
(SC), the Apex Court held that the Power of Attorney holder
would be competent to depose for the principal in respect of
acts done by the Power of Attorney holder in pursuance of
the Power of Attorney and he could not depose for the
principal as relates acts in respect of which the principal
alone could have a personal knowledge and as such, in such
circumstances, the principal alone could be entitled to be
cross examined. Evidently, the nub of the decision is that, in
such circumstances, only the principal would be the
competent person to depose and the Power of Attorney
holder would not be a competent witness. Firstly, it is to be
noted that in case on hand, the landlady who is the petitioner
before the Rent Control Court is none other than the wife of
the person for whom she requires eviction of the revision
petitioner from the petition schedule room. Evidently, she
got herself examined as PW1. The Rent Control Court
upheld the contention raised by the respondent-landlady
relying on the decision of this Court in Cannanore DrugR.C.R.No. 13 OF 2018 8
House (M/S), Kannur v. Cheriya Melat Abdul Azeez (2013
KHC 2518), Mustafa Haji v. Umbichi (2004 (2) KLT 1110)
and Devayani v. Pulickaparambil Hamsa Haji (1997(1)
KLJ 230) and upheld the bonafide need projected by her. In
those decisions the court held the non-examination of the
dependent, son of the landlord concerned, as not fatal to the
petition for own use and occupation of the son when the
landlord was examined in support of the intention of his son.
6. In the facts circumstances, obtained in the case on
hand the question is whether non-examination of the
husband of the petitioner for whose occupation of the
petition schedule room the revision petitioner is sought be
evicted from there, could be taken as a reason fatal enough
to dismiss the application. In the decision in Lakshmi v.
Labbah Kunju Ameer Hamsa reported in 2005 (3) KLT
627, this Court held that the question whether the landlord
bonafidely or genuinely requires the building, could be
assessed by Court by examining the landlord or the
dependent concerned. In the light of the decisions referred
above, the contention of the revision petitioner can only be
said to be bereft of any merit.
7. The contention of the revision petitioner cannot
hold good for yet another reason as well. Besides being the
person, who filed the rent control petition, projecting the
bonafide need for occupation of the petition schedule shop
room for starting business for her husband, she is a
competent witness to depose for her husband in view of the
provision under Section 120 of the Evidence Act. Sec.120 of
the Indian Evidence Act, 1872 which reads thus:
Sec 120. Parties to civil suit, and their wives or
husbands. - Husband or wife of person under criminal
trial.- In all civil proceedings the parties to the suit, and
the husband or wife of any party to the suit, shall be
competent witnesses. In criminal proceedings against any
person, the husband or wife of such person, respectively,
shall be competent witness.
8. True that the area of operation of CPC is limited by
Section 23 of the Act. The said Section under the caption
'Summons etc.-' specifies the provisions of CPC which are
applicable to rent control proceedings. It also undoubtedly
reveals that the authorities under the Act are given powers
of which are vested in a civil court when dealing with
matters enumerated therein which admittedly includes
'examining witnesses on oath' under sub-section (1) (d).
Thus, it is evident that when dealing with 'examination of
witnesses on oath' it has the power vested in a Court under
the Code of Civil Procedure when trying a suit and therefore,
in the light of the provision under Section 120, the husband
or wife of any party in the said suit shall be a competent
witness in such a proceeding before the Rent Control Court.
In such circumstances, going by Sec. 120 of the Evidence Act,
the petitioner who is none other than the spouse of the
person for whose need eviction of the revision petition is
sought for, has to be treated as a competent witness and
since she was examined as PW1 the non-examination of the
husband of the petitioner would be of no consequences. It is
relevant to note, in the case on hand, the very rent control
petition itself was filed by her on the ground of bonafide
requirement of the shop room in question, for her husband
to start the business. In the circumstances it cannot be said
that she had deposed in respect of matters which were not
within her personal knowledge. There is no case for the
revision petitioner that she had not deposed before the Rent
Control Court in tune with the pleadings in the Rent Control
Petition regarding the bonafide need or that something
which would discredit her version was elicited from her. A
long and short of the discussions is that there is no merit in
the contention based on the non-examination of the
landlady's husband.
8. We are also of the considered view that the
authorities below rightly rejected the revision petitioner's
contention that the shop room in question is not suitable for
the proposed business in the light of the decisions in Sait
Nagee Purushotham & Co. Ltd v. Vimalabai PrabhulalR.C.R.No. 13 OF 2018 12
[(2005)(4)KLT 452], Jerry Joseph v. Selvaraj [(2002 (2)
KLT 129] and Mohamood Haji v. Devootty Amma [(2004
(2) KLT 248)]. In those decisions, in unambiguous terms
this Court held that the privilege to choose the nature of
business as also the place of business, is that of the landlord
and the tenant cannot dictate terms to the landlord, on such
matters.
The revision petitioner's claim for the benefit under the
first and second provisos to Section 11(3) of the Act, was
rejected by the authorities below. According to the revision
petitioner, the authorities below did not properly consider
the fact that the revision petitioner had not assigned any
special reason to support an order of eviction. Except the
assertion of the revision petitioner that the landlady and her
husband got other rooms in their possession, no evidence
whatsoever was adduced by the revision petitioner to
establish the said contention. Even the details of such vacant
room/rooms were not furnished by the revision petitioner.
In the rent control petition the landlady had categorically
stated that she got no vacant room in her possession in the
same city, town or village. In such circumstances, the finding
that the revision petitioner-tenant is not entitled to avoid an
order of eviction under the first proviso to Section 11(3) of
the Act can only be held as the rightful conclusion in the light
of the evidence on record. The question whether revision
petitioner is entitled to invoke protection of second proviso
to Section 11(3) of the Act has also been answered by the
authorities negatively. In order to claim the protection
under the second proviso the tenant has to prove the
ingredients of both the limbs viz 1) that he is depending for
his livelihood mainly on the income derived from trade or
business carried on in such building; 2) there is no other
suitable building available in the locality for him to carry on
such trade or business. As noticed herein-before, the power
of attorney holder of the revision petitioner alone was
examined on the side of the revision petitioner. In other
words, the revision petitioner had not mounted the box.
How can the power of attorney holder be a competent
witness of the tenant in regard to the first limb of the second
proviso to Section 11(3) of the Act? Earlier, the notice issued
to the revision petitioner by the Rent Control Court was
returned with the endorsement: 'the address is abroad'.
After substituted service of notice and upon his failure to
enter appearance, the revision petitioner was set exparte
and later, it was set aside at the instance of the power of
attorney holder. As RW1 the power of attorney holder
deposed that he has been conducting business in the petition
schedule room, on behalf of the revision petitioner-tenant
and was getting a profit of Rs.500/- per day, from the said
business. He would further state that the revision petitioner
used to pay the entire amount of profit amount to him on
certain occasions. He would also depose that he could not
produce any document to show that the income from the
petition schedule room is the main source of income of theR.C.R.No. 13 OF 2018 15
revision petitioner. Unless there is documentary evidence
supporting the version of a power of attorney holder of a
tenant as regards the income of the tenant concerned being
derived from the tenanted shop room, he cannot claim to be
competent witness in that regard. Normally, what is the
income from such a business and whether it is his main
source of income, are matters within the personal
knowledge of the tenant concerned. The very oral testimony
of PW1 itself would reveal that he was having no knowledge
as to whether the income being derived from the business
conducted in the shop in question, is the main source of
income of the revision petitioner. Ext C1 report submitted
by the Advocate Commissioner is to the effect that several
vacant rooms are available in the locality. The Rent Control
Court in paragraph 15 of the order mentioned that though
the said fact was put to RW1 he had failed even to deny the
same. At any rate, the fact is that the revision petitioner had
failed establish both the aforesaid conditions and therefore,R.C.R.No. 13 OF 2018 16
we find no reason to uphold the contentions of the revision
petitioner that it is the improper consideration by the
authorities below that deprived him the protection under
the second proviso to Section 11(3) of the Act. In the
circumstances, we find no merit in the revision petition and
it is liable to be dismissed.
7. When we are about to part with the case by
dismissing it the learned Counsel appearing for the revision
petitioner sought for some reasonable time for the revision
petitioner/the tenant to give vacant possession of the
petition schedule building. On that question, we heard the
learned counsel for the Caveator, the petitioner in the Rent
Control Petition. On consideration of the rival submissions,
we are of the considered view that six months time can be
granted for that purpose. The revision petitioner shall file an
affidavit carrying an undertaking that he would give vacant
possession of the petition schedule building to the
respondent-landlady/petitioner in the Rent Control Petition,
forthwith, on expiry of the aforesaid period. Such an
affidavit shall be filed before the Rent Control Court within
two weeks from the date of receipt of copy of this order. If
execution petition is pending such an affidavit shall be filed
before that Court where it is pending. Needless to say that
the revision petitioner shall continue to pay the monthly
rent at the admitted rate during the aforesaid period.
However, any two consecutive default in payment of rent
would entail automatic recalling of the aforesaid benefit.
Subject to the above, this revision petition is dismissed.
There will be no order as to costs.
Sd/-
C.T.RAVIKUMAR, JUDGE
Sd/-
K.P.JYOTHINDRANATH, JUDGE
18.01.2018
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