IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 RCRev..No. 37 of 2009() ----------------------- RCA.8/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.11/2005 of RENT CONTROL COURT, TVM .................... RESPONDENT/COUNTER PETITIONER: -------------------------------------------------- VARIJAKSHAN, S/O.LATE GOVINDAN, AGED 70 YEARS, RESIDING AT T.C.5/1792, CHERUVAKKAL, SREEKARIYAM, THIRUVANANTHAPURAM. BY ADV. SRI.N.R.SURESH KUMAR RESPONDENT(S): APPELLANTS/PETITIONERS: -------------------------------------- 1. B.JAYAPALAN NAIR, S/O.BALAKRISHNA PILLAI AGED 57 YEARS, RESIDING AT SAROJA BHAVAN, GOVINDA MANAGALAM ROAD, VELLAYAMBALAM, TRIVANDRUM. 2. M.AMBIKAKUMARI, W/O.JAYAPALAN NAIR, AGED 50 YEARS, DOING BUSINESS AT SAROJA BHAVAN, -DO-. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No.37/2009 ------------------------ Dated this the 13th day of February, 2009 ORDER Pius C.Kuriakose, J. In this revision petition under Section 20 of the Act 2 of 1965, the tenant a senior citizen challenges the order of eviction passed by the Rent Control Appellate Authority against him under Section 11(2)(b) of the Act in modification of the order which had been passed by the Rent Control Court. The landlords respondents invoked the grounds under Section 11(2)(b), 11(4) (ii) and 11(4) (iii). The Rent Control Court and the Rent Control Appellate Authority concurrently declined order of eviction sought under Section 11 (4) (ii) and 11(4) (iii) and since there is no revision by the landlords against those orders, in this revision we are concerned only with the grounds under Section 11 (2) (b). 2. The landlords' allegation in the context of the ground under Section 11(2) (b) was that the contract rent is at Rs.200/- per mensem and that the same has been defaulted by the tenant from November 2001 onwards. The defence of the revision R.C.RNo.37/2009 2 petitioner to that allegation was that the contract rent is only Rs.25/- per mensem and that he is not a defaulter. The evidence before the Rent Control Court consisted of Exts.A1 to A5 and the oral testimonies of PWs 1 and 2 on the side of the landlords while it consisted of only Exts.B1 and B2 on the side of the revision petitioner tenant. One of the points which arose before the Rent Control Court in the context of the ground under Section 11(2) (b) was as to what was the contract rent. This point was answered by the Rent Control Court in favour of the revision petitioner tenant and it was found that the contract rent is Rs.25/- the rent originally fixed under Ext.B1 Rent chit in 1965. However, that court found that the revision petitioner had defaulted payment of rent even at the rate of Rs.25/- per mensum and accordingly passed an order of eviction under Section 11(2) (b). The landlords preferred appeal R.C.A. No.8/2006 against the order of the Rent Control Court. The appellate authority did not become inclined to interfere with the order declining eviction on the grounds under Sections 4 (2) and 11(4) (iii). However, the appellate authority would interfere with the findings of the Rent Control Court regarding the contract rent R.C.RNo.37/2009 3 and would hold that the contract rent is Rs.200/- per mensum. To decide so, the appellate authority relied on the oral evidence adduced by PW1 and PW2 and noticed that there was not even formal counter evidence to the oral evidence of PW1 and PW2. The appellate authority did notice that there was no documentary evidence supporting the landlords' case that the rent has been enhanced subsequent to Ext.B1 and that present rate is Rs.200/- per mensem. The appellate authority, however, was inspired by the oral evidence of PW1. The appellate authority also thought that it was highly improbable that the rent of a building having an admitted carpet area of 500 sq. feet was allowed to remain statistic since 1965. In other words, the appellate authority found that version of the landlords that the rent was enhanced over the years to Rs.200/- per mensem was much more probable than the contention of the tenant especially in the absence of any counter oral evidence on the side of the tenant. 3. Sri.N.R.Suresh Kumar, learned counsel for the petitioner has addressed us very strenuously. The learned counsel would draw our attention to the judgments of a Division Bench of this court in John v. Babu (1999 (3) KLT 269) and judgment of R.C.RNo.37/2009 4 another Division Bench of this court in Paul v. Pradeep (2006 (2) KLT 20).. The learned counsel argued that contract rent is an aspect which is capable of documentary evidence and in the absence of any documentary evidence the Rent Control Appellate Authority was not justified in relying on the oral evidence of PW1 and PW2. 4. We are unable to accept the submissions of the learned counsel. The ratio of the judgment of the Division Bench in John v.Babu (supra) is that the Rent Control Court is not entitled to take up on itself the duty of deciding the reasonable rate of rent payable in respect of the premises and substitute the same for the rent due by the tenant as mentioned in Section 11(2)(b). According to us, the above ratio cannot have any application in this case. In this case, what the appellate authority has done is to settle the dispute between the landlords and the tenant as to the contract rent relying on the evidence which was available on record. It was the oral evidence of PW1 and PW2 given in substantiation of the landlords' pleaded case that the contract rent on the date of issuance of the demand notice was Rs.200/- per mensem and not Rs.25/- the initially fixed rent. The oral R.C.RNo.37/2009 5 evidence of PW1 and PW2 inspired the Rent Control appellate authority, which under the statutory scheme is the final court on facts. This is not a case where the Rent Control Appellate Authority substituted the case of the parties and decided a reasonable rent. 5. The ratio of the judgment in Paul v. Pradeep(supra) is only that when the landlord fails to prove his case regarding the rate of rent payable by the tenant, the Rent Control Court will be justified in accepting the tenant's case regarding the rate of rent and passing an order of eviction under Section 11(2) (b) computing the arrears of rent at the rate admitted by the tenant. As already noticed, the facts situation in the present case is that the landlords adduced oral evidence, to which no counter evidence was adduced by the tenant. On reappreciating the evidence adduced by the landlords, the appellate authority found that the landlords' version regarding the contract rent is much more probable than the tenant's version and accepted the landlords' version regarding the rate of rent. Thus the ratio in Paul v. Pradeep(supra) also cannot have any application to the facts of this case. R.C.RNo.37/2009 6 6. The Evidence Act envisages proof of facts in issue by adducing evidence which may be oral or documentary. Though documentary evidence on aspects which are capable of documentary evidence can be safely treated to be qualitatively superior in situations where documentary evidence is admittedly not available direct oral evidence found to be credible can certainly be relied on. In this case there was evidence given by PW1 on oath and the tenant chose not to mount the witness box and give his evidence on oath. The evidence of PW1 inspired confidence in the mind of the court. Moreover we find that the learned District Judge has considered the broad probabilities of the matter. In civil cases there is no insistence on absolute proof, and the decision often turns on preponderance of probabilities. 7. Having regard to the nature of the building situated as it is within the limits of the Thiruvananthapuram Corporation, and the circumstance that the building is having an area of 500 sq.feet and is allowed to be used for residential as well as commercial purpose, we also feel that the version of the landlords that the rent which to begin with was Rs.25/- per R.C.RNo.37/2009 7 mensem has been increased over the years to the present rate of Rs.200/- is much more probable. At any rate, we do not find any illegality, irregularity or impropriety about the findings of the Rent Control Appellate Authority regarding the rate of rent and the consequential order passed under Section 12 (b). 8. As his last request, the learned counsel for the petitioner sought for two months' time to get order of eviction passed by the Rent Control Appellate Authority set aside by making requisite deposits. The learned counsel submitted that the Execution Court has already ordered delivery which may take place on 5/3/2009. 9. Having regard to the to the submissions of the learned counsel, we are of the view that there is justification for granting time till 30/3/2009 to the revision petitioner to make requisite deposits and get the order of eviction vacated. If the revision petitioner deposits, the entire arrears of rent, as found by the Rent Control Appellate Authority, on or before 30/3/2009 before the Rent Control Court together with interest at the statutory rates and also the cost, if any, allowed by the authorities below and files an application under Section 11 (2) (c) before that R.C.RNo.37/2009 8 court, that court will pass proper orders on the application with notice to the opposite sides treating the application to be one maintainable in law. Considering the above direction, the proceedings for execution including the proceedings for delivery will stand put off to 3/04//2009. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk