Refuse permission to examine witness to prove disputed fact

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:MR.JUSTICE K.T.SANKARAN,MR. JUSTICE A.M.BABU

14TH DAY OF DECEMBER 2016

OP (RC).No. 133 of 2016 (O)

PUSHPA JAYAN
Vs
NADEERA AHAMMED

1.Landlady   filed         R.C.P.99/2013                 before  the Rent     Control          Court,          Chavakkad         against tenant   and      sub-tenants.                The       proceedings reached the final hearing stage. Arrears of rent and sub-lease are the two grounds alleged in the rent control petition. A copy of the petition is Ext P1.

2.Petitioners      herein          are       the       sub-tenants. Respondent is the landlady. The tenant is not made a party in this original petition. Petitioners do not dispute the sub-lease. They   contend        the        sub-lease             to  be   not objectionable. They say that it was with the consent of the landlady the sub-lease was made. Ext P2 is a copy of the counter- statement filed by the sub-tenants in the rent control proceedings.

3.The power of attorney holder of the landlady was       examined   as  PW1.   The   sub-tenants produced a few rent receipts purported to have       been issued to them by PW1. PW1 denied the       signatures  in  those  rent   receipts. Therefore       the  sub-tenants  filed     three interlocutory       applications, namely, (i) I.A 10064/2016, (ii) I.A 10065/2016 and (iii) I.A 10066/2016. Copies of those applications are Exts P3, P4 and P5 respectively.

4.I.A 10064/2016 was filed to get the evidence re-opened. The evidence was sought to be re- opened to examine one more witness. I.A 10065/2016 was filed requesting to receive witness list       after condoning the delay in filing it.       The witness is stated to be the tenant of a room in the same building. His examination was sought in order to prove the disputed signatures in the disputed          rent receipts.       I.A   10066/2016   was   filed requesting to issue summons to the said witness.

5.The Rent Control Court dismissed all the applications. The orders in I.A 10064/2016, I.A 10065/2016 and I.A 10066/2016 are Exts P6, P7 and P8 respectively. Two reasons are stated to dismiss those applications. First, the competence of the witness to prove the disputed      fact  was  not   shown   to  the satisfaction of the court. Second, the fact proposed      to  be  proved   would  have  no relevance     as  the  disputed  receipts were issued in the name of the tenant.

6.Heard the learned counsel on both sides. Perused Exts P1 to P8.

7.Petitioners     herein  are  admittedly  sub- tenants. They say that the sub-lease was not objectionable. According to them, it was with       the  consent  of  the   landlady  the building was sub-let. In order to prove their case, the sub-tenants produced a few rent       receipts.  They  allege  that   those receipts were signed and issued by PW1 as the       power  of  attorney   holder  of   the landlady. PW1 denied the signatures in those receipts to be his. Therefore, the sub- tenants sought for the examination of a witness to prove the disputed signatures to be those of PW1. Should the sub-tenants be denied such an opportunity is the question.

READ  SC : One Night Stand is not Domestic Relationship

8.Sub-tenants      are  certainly  not  necessary parties       in  a  rent   control  proceedings between the landlady and the tenant. It is so even in cases where sub-lease is taken as a ground for eviction. But if they are made parties       to  the   proceedings,  they   are entitled to contest and produce evidence as every party in any litigation could do.

9.The Rent Control Court said that it was not satisfied of the competence of the proposed witness to prove the disputed fact. That was one       reason  why   the   Rent  Control   Court dismissed the applications. The sub-tenants wanted to examine the witness to prove that the      signatures   in  the   disputed   receipts belonged to PW1. The sub-tenants chose a tenant of the same building to prove the disputed signatures. He was chosen perhaps he might have received rent receipts signed by PW1. The competence of a witness to prove  a fact is normally a matter to be decided  after reading his evidence and not before  his       examination unless his incompetence is  so patent.

10.Section 67 of the Indian Evidence Act reads thus:-

“If a document is alleged to be signed
or to have been written wholly or in
part by a person, the signature or the
handwriting of so much of the document
as is alleged to be in that person’s
handwriting must be proved to be in his
handwriting”.

In view of Section 67 it is obligatory for the       sub-tenants    to   prove   the   disputed signatures to be the signatures of PW1. They only sought an opportunity to prove the disputed signatures. Section 67 which deals with proof of signature and handwriting does not state the manner in which it should be proved. It may be proved by any kind of evidence. The signature of a person may be  proved by another person who is acquainted  with       the  signature   of   the  former.   That  precisely was what the sub-tenants wanted to  attempt.       They    should    be   afforded   the  opportunity. The competence of the witness  to prove the disputed signatures may be  assessed after his evidence is recorded. Let not it be decided before he goes to the witness box.        The evidence need not be shut out. We are unable to accept the first reason given by the Rent Control Court to dismiss Exts P3 to P5 applications.

11.The fact sought to be proved by the sub- tenants did not appear to the Rent Control Court to be relevant. That was the second reason         given  for    dismissing   the applications. The Rent Control Court said that it was not relevant since the disputed receipts stood in the name of the tenant. The Rent Control Court did not state any other       reason for holding it  to  be not relevant. We are unable to agree with that reasoning too. The receipts issued in the name of the tenant were produced by the sub- tenants. The receipts might have gone into the hands of the sub-tenants through the hands of the tenant. PW1 might have issued the receipts to the sub-tenants when rent was received from them. Possibilities are many.       How  did the sub-tenants  get the receipts is certainly a relevant question if the receipts were really issued by PW1. That question       too  can  be  decided only  after collecting the whole evidence in the case. Let the evidence come first. The second reason given by the Rent Control        Court is also not acceptable.

READ  Distant relatives 498A quashed with Section 482 Cr.P.C

12.We are convinced that both the reasons given        by  the  Rent   Control Court   for rejecting         the   applications  are    not convincing. It appears that the Original Petition deserves to be allowed. But the learned counsel for the landlady does not allow us to stop this judgment here.

13.The       learned  counsel has  cited  several judicial       pronouncements  to  contend  that collection of rent from the sub-tenants and issuance of receipts to them are not fatal to a proceedings seeking eviction on the ground of sub-lease. We are not referring to those decisions. For, we are of the view that the circumstances under which rent was collected from the sub-tenants and receipts were issued to them are also matters for decision       after   collection    of  the   entire evidence. It is not a matter to be decided at any time before that.

14.But we propose to mention two of the decisions cited by the learned counsel. The decisions are (i) Tresa v. Joseph (2005 (4) KLT 435) and (ii) Raghavan v. Sreedhara Panicker       (2001   (1)   KLT  772). These two decisions are also cited to highlight that collection of rent from a sub-tenant is not fatal to a claim for eviction on the ground of sub-lease. But we are on another point. 15.We may first extract Section 11(4)(i) of the       Kerala    Buildings    (Lease    and    Rent Control) Act (‘the Act’ for short).

(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,-

(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion   thereof if the lease does not confer on him any right to do so.

16.A Division Bench of this Court in Tresa’s case (supra) interpreted Section 11 (4)(i) as under:

“S.11(4)(i) of the present Act consists
of  two  parts;  one  relating  to  the
transfer of the tenant’s rights under
the lease and the other relating to the
sub-lease.  Transfer  of  the  tenant’s
right if made without the consent of
the  landlord,   S.11(4)(i)  would   be
attracted. If the tenant sub-lets the
entire building or any portion thereof,
if the lease does not confer on him any
right to do so, then also S.11(4)(i) is
attracted. The expression “without the
consent of the landlord” relates only
to the transfer of right under the
lease; it does not apply to the sub-
lease.  As regards sub-lease to be not
objectionable, the lease must confer on
the tenant a right to do so. A consent
letter issued by the landlord after the
lease does not entitle the tenant to
sub-let so as to avoid the application
of  S.11(4)(i)  of  the  Act.  Even  if
consent  is  granted  by  the  landlord
after  the  lease,   the  landlord   is
entitled to apply under S.11(4(i), if
the lease does not confer on the tenant
a right to sub-let.”

READ  Far relatives 498A quashed

This interpretation may favour the landlady. For, the sub-tenants do not have a case that the lease permitted the tenants to sub-let the premises. Their case is only that the lessee consented to the sub-lease.

17.Before the pronouncement in Tresa’s case, another Division Bench in            Raghavan’s case (supra) held as follows at paragraphs 3 and 4 of the judgment :

3. “S.11(4(i) of the Act provides
that  a  tenant  is   liable  to  be
evicted if, after the commencement
of the Act, the tenant, without the
consent of the landlord, transfers
his right under the lease or sublets
the entire building or any portion
thereof,  if  the   lease  does  not
confer on him the right to do so.
The two circumstances in which a
subletting by a tenant does not lead
to an order for eviction under S.11
(4)((i)  of  the     Act,   are  the
circumstance where the lease or the
instrument of lease confers on him
the  right   to   do   so  and   the
circumstance where the subletting is
made  with   the   consent  of   the
landlord. According to us, in a case
where the lease does not authorise
the tenant to sublet, the consent of
the  landlord  contemplated  by  the
section is a consent obtained prior
to the subletting or a consent for
the subletting. The Section speaks
of a transfer of the right under the
lease  or  subletting  without   the
consent of the landlord as a ground
for eviction”.

4.  “On  a  proper  reading  of the
provision,  it  is  clear  that the
subletting should be with consent,
to escape the consequences envisaged
by that provision. In other words,
the   consent   must   precede  the
subletting………”

The       interpretation      in   Raghavan’s    case (supra) may favour the sub-tenants. For, their case is that the very sub-lease was made with the consent of the landlady.

18.There is an apparent conflict between the two Division Benches in interpreting Section 11(4)(i) of the Act. But we do not propose to make a request to refer the question to a larger bench. For, this is not a matter to be     decided     now.   It  is   a  matter  to  be considered while deciding the rent control petition.       It   should   not   appear   that  we simply skipped a point which was brought to our notice by the learned counsel for the landlady. That is the sole reason why we have referred to Tresa’s case and Raghavan’s case in this judgment.

In the result, the Original Petition is allowed. No costs. Exts P6, P7 and P8 orders are        set  aside.       I.A   10064/2016,  I.A 10065/2016 and I.A 10066/2016 on the file of the       Rent  Control      Court   stand  allowed. Evidence is re-opened. The witness list is received. The Rent Control Court shall issue summons to the witness.

Sd/-
K.T.SANKARAN
Judge

Sd/-
A.M.BABU
Judge

Leave a Comment

Your email address will not be published. Required fields are marked *