IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 RCRev..No. 202 of 2009(C) ------------------------------ RCA.19/2007 of D.C & RENT CONTROL APPELLATE AUTHORITY,TRIVANDRUM RCP.2/2005 of RENT CONTROL COURT, ATTINGAL .................... REVISION PETITIONER/APPELLANT/PETITIONER ----------------------------------------------------- BASHEER, S/O.KASIM, AGED 69 YEARS, RESIDING AT SABI MANSION, MAKOM, KIZHUVILAM VILLAGE, THIRUVANANTHAPURAM DIST. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): RESPONDENT/COUNTER PETITIONER ------------------------------------------------------------- ABBAS, S/O.MUHAMMED HUSSAIN, AGED ABOUT 54 YEARS, RESIDING AT HUSSAIN VILLA, MARKET ROAD, ATTINGAL, THIRUVANANTHAPURAM DIST. ADV. M.A.ZUHRA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.202 of 2009 ------------------------------------------------ Dated this the 13th day of December, 2010 ORDER Pius C. Kuriakose, J The landlord is the revision petitioner. He sought to evict the tenant on the grounds of arrears of rent, bona fide need for own occupation and the ground of acquisition of other buildings by the tenant. As for the order of eviction sought by the landlord on the ground under sub Section 3 of Section 11, the same has attained finality at the hands of the Apex Court. It is the judgment of the Rent Control Appellate Authority declining order of eviction under Section 11(2)(b) and the judgment confirming the order of the Rent Control Court declining order of eviction under Section 11(4) (iii) which is under challenge in this revision. R. C. R. No.202 of 2009 -2- 2. We shall first deal with the judgment of the Appellate Authority confirming the order of the Rent Control Court declining eviction under Section 11(4)(iii). We remind ourselves of the contours of this Court's jurisdiction under Section 20. Having scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court, we find that the findings entered therein regarding the existence or otherwise of the eviction ground under Section 11(4)(iii) are founded on legal evidence available on record. We do not find any warrant for interfering with such findings and the decision taken by the statutory authorities concurrently as we do not find any illegality, irregularity or impropriety as envisaged by Section 20. We confirm the judgment of the Appellate Authority to the extent the same pertains to the ground under Section 11(4)(iii). 3. We shall now deal with the order of eviction passed R. C. R. No.202 of 2009 -3- under Section 11(2)(b). The allegation of the landlord was that the rent at the rate of Rs.3,000/- per mensem is in arrears from 01/09/03 and that the same is not paid in spite of statutory demand notice issued under the proviso to Section 11(2)(b). The defence of the tenant was that the rent alleged was promptly paid and that the landlord had not issued a receipt against the payments received by him. Neither side produced any document of the evidence for proving the rival contentions. The landlord was examined as PW1, tenant was examined as RW1 and an employee of the tenant was examined as RW2. The learned Rent Control Court would notice Section 9 of Act 2 of 1965 and find that under Section 9, the tenant has a right to insist on getting a receipt and the statute provides a remedy to him if the landlord is not ready to issue a receipt. The Rent Control Court, however, would blame the landlord for not having R. C. R. No.202 of 2009 -4- produced any document including counterfoils of the receipts which according to that court should have been kept. It appears that the oral evidence of RW1 inspired the Rent Control Court more than that of PW1. The Rent Control Court declined eviction order preferring the tenant's oral evidence to that of landlord's oral evidence. The Appellate Authority would reappraise the evidence and concur with the finding of the Rent Control Court. Sri.R.S.Kalkura, the learned counsel for the revision petitioner would assail the judgment of the Appellate Authority on the various grounds raised in the revision petition. The learned counsel referred to Section 9 and submitted that the statutory authorities should not have declined the order of eviction under Section 11(2)(b) as the tenants have no case that they have resorted to Section 9. According to him, plea of discharge without receipt is a plea which should not have been R. C. R. No.202 of 2009 -5- accepted at all. On an aspect which is capable of documentary evidence it is such evidence that should be adduced as the rule is always one of best evidence. 4. May be in view of the finality attained by the eviction order passed under Section 11(3) nobody has come forward to resist the submissions of Sri.Kalkura. We have considered Sri.Kalkura's submission. We have kept in mind Section 9 of Act 2 of 1965. Though we do find merit in the submission of Sri.Kalkura, we are not inclined to decide the issue whether the eviction order is liable to be passed against the respondent under Section 11(2)(b), particularly as the eviction order passed against the respondent as 11(3) has been confirmed by the Supreme Court and the Supreme Court has granted a fairly long period of nine more months' time to the tenants for surrender. There is another reason why we are not inclined to decide the issue. We are R. C. R. No.202 of 2009 -6- informed that the landlord has already filed a suit for recovery of arrears of rent. We therefore, dispose of the RCR confirming the negative order passed against the landlord under Section 11(4)(iii) and observing that the finding entered by the statutory authorities in the context of the ground under Section 11(2)(b) will not bind the Civil Court while deciding the suit already filed by the landlord. The Civil Court shall decide the issue of arrears of rent afresh uninfluenced by those findings and on the basis of the evidence that comes on record before the Civil Court. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-