Jayarajan vs Mappala Raju

Ajithkumar, J.

Ext.P10 is an order passed by the Rent Control Court (Principal Munsiff-I), Kozhikode in I.A.No.3 of 2021 in R.C.P.No.97 of 2015. That is an application for appointment of an Advocate Commissioner. The Rent Control Court as per Ext.P10 order dated 11.02.2022 dismissed that application. The petitioner filed this original petition, invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside Ext.P10 order and to allow I.A.No.3 of 2021.

R.C.P.No.97 of 2015 was filed before the Rent Control Court by the respondents-landlords seeking eviction of the petitioner under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Ext.P1 is a copy of the rent control petition. The petitioner filed his counter statement, a copy of which is Ext.P2, refuting the bonafides of the requirement projected by the respondents and also raising a few other contentions.

When the rent control petition was posted for pre-trial steps, the petitioner has filed I.A.No.3 of 2021, a copy of which is Ext.P3, seeking to appoint an Advocate Commissioner. Following are the matters sought to be ascertained:- (i) the present status of two vacant rooms, which are situated adjoining the petition schedule shop room;

(ii) whether the respondents are trying to let out those rooms; and (iii) to make a report regarding the accounts maintained by the respondents-landlord with respect to their furniture business in two rooms in the same building. The Rent Control Court after hearing both sides, dismissed the application holding that matters required to be ascertained through Advocate Commissioner are quite unnecessary for deciding the rent control petition.

When the matter came up for admission on 24.02.2022, we heard the learned counsel appearing for the petitioner in detail.

The respondents are conducting a furniture business in two of the five rooms in the building in question.

In order to expand their business, they require the petition schedule shop room and also the other two rooms in the building. The tenants in the other rooms already surrendered vacant possession consequent to orders of eviction. The petitioner wants to ascertain through the Commissioner whether those two rooms have been kept vacant, whether the respondents have been taking steps for letting out the said rooms and also get a report with respect to the contents of statement of accounts maintained by the respondents regarding his furniture business.

The respondents categorically contended that their plan was to expand the furniture business by making use of all the three rooms, which had been in the possession of the tenants. They got vacant possession of the two of the said rooms. Only room remaining in the possession of the tenant is the petition schedule shop room.

There is no dispute as to the fact that two rooms, which were surrendered by the respective tenants are remaining vacant. When the respondents propose to expand the furniture business by making use of all the said three rooms after effecting necessary interior work, absolutely no evidence is required with respect to the status of the said two rooms. Admittedly, those two rooms are lying vacant. We fail to understand how a Commissioner can ascertain, whether or not the respondents have a plan to let out the said two rooms to third persons. The other aspects sought to be reported is with respect to the statement of accounts maintained by the respondents in regard to their business. Whether such a document is relevant or not is a question to be decided in the light of the rival pleadings. The rule is that the 'best evidence' shall always be produced in court. When the petitioner contends that the respondents are maintaining statement of accounts, the same is the primary evidence. If a Commissioner prefers a report regarding the contents of such a record of accounts, the same would only be a secondary evidence, which is inadmissible; since the primary evidence is very much available. In the said circumstances, appointment of a Commissioner as sought in Ext.P3 application is absolutely unnecessary. We are of the view that filing of such an application is a specious attempt to protract the rent control proceedings. The original petition is therefore liable only to be dismissed. Hence, we dismiss the same.