IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP (RC).No. 1077 of 2010(O) --------------------------- RCA.9/1999 of D.C. & SESSIONS COURT,KOLLAM .................... PETITIONER ------------------------------ UPENDRAN, S/O.K.K.PANICKER, AGED 69 YEARS, MUTHEDATHU BUNGLOW, ASHTAMUDI, THRIKKARUVA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. UMADEVI AMMA, D/O.GOMATHY AMMA, PUNNOR VEEDU, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM DISTRICT. PIN.691 014. 2. GOMATHY AMMA, PUNNOR VEEDU, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM DISTRICT. PIN.691 014. THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - O.P.(Rent Control)No.1077 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 ORDER Basheer, J. The tenant of a commercial building has filed this petition under Article 227 of the Constitution of India impugning Exts.P4 and P6 orders passed by the Rent Control Appellate Authority, Kollam in R.C.A.No.9/1999 pending before that court. 2. Eviction proceedings have been initiated by respondents/landlords under Section 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act 1965 on the plea that they want to expand their business in tailoring and other allied works. Initially, the Rent Control Court ordered eviction as prayed for. However, the Appellate Authority set aside the above order and dismissed the eviction petition. 3. The above order passed by the Rent Control Appellate Authority was challenged before this court in R.C.R.No.73/2003. This court allowed the revision petition and remitted the case to the O.P.(RC)No.1077/2010 2 Appellate Authority for fresh disposal in accordance with law. 4. In the above order, this court had made it clear that the parties would be at liberty to adduce further evidence in the matter. Petitioner/tenant moved three applications before the Appellate Authority after remand. 5. In I.A.No.2698/2010, the prayer was to summon the Secretary of Thrikkadavur Grama Panchayath as a witness to give evidence with respect to the present occupancy position of building Nos. 168, 173, 174, 175 and 176 in Ward No. 7 of the said panchayath during the period between 1999 till date and to produce the relevant registers in respect of the above buildings and speak about the grant of licence to the occupiers to conduct business. Petitioner also sought to get himself examined to give evidence in respect of the above issue. 6. In I.A.No. 2699/2010, the prayer was to issue an Advocate Commission to conduct a local inspection of the petition schedule building and to report whether the building was in actual possession and use of the landlords. The other aspect which the Advocate Commissioner was expected to report was whether building Nos. O.P.(RC)No.1077/2010 3 168,173, 174, 175 and 176 in Ward No. 7 are situated on the northern side just adjoining the petition schedule building and also to furnish the name and address of the persons who were conducting business in the five buildings referred to above with particular reference to the date of starting of their business and such other allied matters. 7. In I.A.No.2807/2010, the prayer was to receive the certificate issued in favour of the petitioner by Private Paramedical Association, Thiruvananthapuram certifying that petitioner has been registered under the said Association. 8. The Appellate Authority by Exts.P4 and P6 orders dismissed I.A.Nos. 2698/2010 and 2699/2010. The learned Judge took the view that the prayer for issue of a commission was totally misconceived, especially since all these matters, which are now sought to be elicited through issue of commission, could have been brought on record when Advocate Commissioner was appointed at the appellate stage earlier. 9. We have carefully perused the affidavit filed by the petitioner in support of the application for issue of a commission . The O.P.(RC)No.1077/2010 4 specific case of the petitioner appears to be that during the pendency of the eviction proceedings, five shop rooms have been got vacated by the landlords and they have subsequently let them out to tenants without putting them to their own use. As has been noticed already, the prayer in the commission application is to direct the Advocate Commissioner to inspect the five shop rooms allegedly let out by the landlords after institution of the eviction proceedings and give details of the occupiers. The other prayer in the commission application is to report whether the upstair portion of the tenanted building is now being used by the landlords as claimed by them. It is seen averred by the petitioner that such an establishment had never been functioning as claimed by the landlords. 10. A reading of the affidavit filed by the petitioner will undoubtedly show that he wants a rowing enquiry to be held by the Advocate Commissioner as to whether the landlords had ever conducted such a business or whether they are continuing to do so; apart from reporting whether five shop rooms mentioned earlier had been got vacated by them after the institution of the eviction O.P.(RC)No.1077/2010 5 proceedings way back in 1995. In our view the Appellate Authority was justified in rejecting the prayer for issue of a commission. Therefore, we are satisfied that no interference is warranted with Ext.P6 order by which the said application has been dismissed by the appellate authority. 11. While dismissing the application for summoning the Secretary of the Grama Panchayath ( I.A.No.2698/2010) as a witness to give evidence with respect to the licence issued to the occupiers of the five shop rooms referred to earlier, the Appellate Authority observed that it will only result in wasting time of the court. The learned Judge further observed that the affidavit filed in support of the application did not give any clue about the purpose for which the witness was sought to be examined. 12. As has been mentioned earlier, the case of the petitioner is that the landlords have let out five buildings in Ward No. 7 of Thrikkadavur Grama Panchayath to various tenants and that those tenants are now conducting business in those buildings. Petitioner wanted the Secretary to produce the relevant Registers and give O.P.(RC)No.1077/2010 6 evidence in that regard. We do not find any reason why petitioner cannot obtain certified copies of the necessary documents containing licence particulars from the Panchayath and produce them before the court. If the certified copies are produced, the court can necessarily consider them. We are of the view that, to that extent, the prayer made in I.A.No.2698/2010 is liable to be allowed. However, we make it clear that if the Appellate Authority is of the view that there is any difficulty for the petitioner to produce the relevant records from the panchayath, sufficient opportunity shall be afforded to adduce such other evidence as may be necessary. It is true that petitioner has also sought permission from the court to get himself examined as a witness. We do not find any reason why the court shall not grant permission to the petitioner to give evidence. 13. As regards the prayer for reception of the certificate issued in favour of the petitioner by the Private Paramedical Association, it is brought to our notice that the court has not passed any orders on that application so far. Yet again, we do not find any reason why the petitioner cannot be permitted to get the said document admitted in O.P.(RC)No.1077/2010 7 evidence while he is being examined in the court. 14. While disposing of R.C.R.No.73/2003, we had directed the Appellate Authority to dispose of the appeal within three months from the date of receipt of a copy of the judgment. We are informed that the appeal is being posted for hearing from time to time and the dead line is to end in February 2011. In that view of the matter, we do not find any reason why the Appellate Authority shall not give reasonable opportunity to the petitioner to let in evidence as indicated earlier. The Original Petition ( Rent Control) is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. O.P.(RC)No.1077/2010 8