Husband or Wife of any Party shall be a Competent Witness in a Proceeding before Rent Control Court [Case Law]

Evidence Act, 1872 -S.120 - Building (Lease and Rent Control) Act 1965 (Kerala) - S. 11(3) - Husband or wife of any party shall be a competent witness in a proceeding before the Rent Control Court.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.

R.C.R.No. 13 OF 2018

Dated this the 16th day of January, 2018

AGAINST THE JUDGMENT IN RCA 22/2016 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT), TIRUR DATED 31-10-2017 AGAINST THE ORDER IN RCP 18/2014 of RENT CONTROL COURT (MUNSIFF COURT), TIRUR DATED 30-01-2016 

PETITIONER/APPELLANT/PETITIONER

MANGATTIL UMMER

BY ADVS.SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY 

RESPONDENTS/RESPONDENTS/PETITIONER

UMMU HABEEBA 

BY ADV. SRI..RAJIT (CAVEATOR) 

O R D E R 

C.T. RAVIKUMAR , J 

The concurrent findings in a rent control petition filed 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 the 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 under 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 or 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 are 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 265 (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 Drug 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 Prabhulal [(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 the 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, 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.