LALITHA RAVI Vs. SAROJINI AMMA

JUDGEMENT

(1.) Under challenge in this Writ Petition filed under Articles 226 and 227 of the Constitution of India is Ext.P6 order of the Rent Control Court, Thiruvananthapuram dismissing I.A.10867/09 filed by the petitioner/landlady for permission to examine the witnesses mentioned in Ext.P5 witness list on the side of the landlady. The Rent Control Petition is filed by the landlady invoking the ground under Section 11(3) on the need that the landlady who is presently residing at Pala town wants to shift her residence to the petition schedule building situated in Thiruvananthapuram city. The need projected is that the landlady is seriously ill due to Cancer and that she wants to come over to Thiruvananthapuram where much better treatment facilities are available. The RCP was filed on the strength of Ext.A1 power of attorney. The Rent Control Court and the Appellate Authority concurrently dismissed the Rent Control Petition essentially on two reasons. The first reason was that the landlady did not mount the witness box and give evidence. The second reason was that Ext.A1 power of attorney did not appear to be a genuine power of attorney. Against the judgment of the Appellate Authority confirming the order of the Rent Control Court dismissing the RCP, the landlady filed RCR.167/09 which was decided by this Court passing Ext.P1 order. By Ext.P1 order, this Court remanded the RCP to the Rent Control Court giving opportunity to the landlady for getting herself examined on commission. Pursuant to Ext.P1 the Rent Control Court appointed a commission who recorded the evidence of the landlady in chief as per Ext.P3 deposition. The Commissioner reported that cross examination had to be stopped "as the witness is not in a position to answer the questions put to her". Ext.P3 also contains the incomplete cross examination of the landlady. It is in the light of Ext.P3 that Ext.P4 (I.A. No.10867/09) was filed by the landlady. Ext.P4 I.A. is dismissed by Ext.P6 order mainly on the reason that allowing the I.A. will be beyond the scope of Ext.P1 remand order.

(2.) In this Writ Petition various grounds are raised challenging Ext.P6 and we have heard submissions of Sri.R.T.Pradeep, learned counsel for the petitioner and Sri.G.Ram Mohan, learned counsel for the respondent. Sri.Pradeep submitted that the health condition of the landlady is deteriorating daily and at the time when Ext.P1 order was passed by this Court, the landlady could not anticipate that her health condition will deteriorate to the extent it did when Ext.P3 deposition was recorded. To the report of the Commissioner that it is not possible to complete the examination in view of the health condition of the landlady no objection was filed. Sri.Pradeep, therefore, requested that the landlady be permitted to examine witnesses for the purpose of proving Ext.A1 and also for manifesting the bona fides of the need projected. Sri.Ram Mohan would take strong exception to the submissions of Sri.Pradeep. Sri.Ram Mohan submitted that when this Court was considering Ext.P1 RCR, the only request made on behalf of the landlady was that she be permitted to be examined on commission. It was that request only which was granted by this Court under Ext.P1. Granting the present I.A. will amount to reviewing Ext.P1. According to Sri.Ram Mohan granting the present I. A will cause serious prejudice to the respondent. Even in the chief examination recorded as per Ext.P3 nothing was stated by the landlady regarding the so called bona fide need. If the so called bona fide need is allowed to be established through substitute witnesses, prejudice will certainly be caused to the tenant. Regarding the request that witnesses be examined for proving Ext.A1, Sri.Ram Mohan submitted that the above request cannot be entertained in view of Ext.P1. Allowing examination of further witnesses will be a futile exercise as the evidence already on record and the circumstances attending on this case will clearly establish that the need is only a ruse. Sri.Ram Mohan also submitted that the landlady is deliberately kept away by the landlady's power of attorney holder who is a relative of the landlady. The power of attorney holder under Ext.A1 has an eye over the building and he is determined to evict the tenant by hook or by crook so that he can occupy the building for himself.

(3.) We have very anxiously considered the rival submissions addressed at the Bar. According to us, the short question that we are called upon to decide is whether Ext.P6 warrants interference. As rightly argued by Sri.Ram Mohan under Ext.P1 this Court passed the order of remand for the limited purpose of enabling the landlady to give evidence in support of the need projected by her in the RCP. But Ext.P3 report shows at least prima facie that it was not possible for the landlady to give evidence in full. That being so, we do not find any justice in saying that the landlady will not be allowed even to attempt to prove her bona fides by examining other responsible witnesses. The same is the position regarding Ext.A1. We are not at all impressed by the request of the landlady that Ext.P1 should be allowed to be proved by examining the Sub Registrar. According to us, for proving Ext.A1 power of attorney it is not mandatory that the Sub Registrar should himself be examined. We do not think that any legal prejudice will be caused to the tenant by permitting the landlady to examine responsible witnesses for establishing the bona fides of the need and also for the purpose of proving Ext.A1. We are sure that the Rent Control Court will take decision on the crucial question as to whether the need projected in the RCP is bona fide by evaluating the entire evidence which comes on record and the totality of the circumstances which attend in this case as brought out in evidence. We are also sure that while taking decision, the learned Appellate Authority will have due regard to the existing legal position as explained by binding judicial precedents of this Court and the Supreme Court. We also make it clear that though we have permitted the landlady to examine a witness or two, the admissibility and probative value of the evidence to be adduced by those is a matter for the Rent Control Court to decide.