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Kerala High Court

Sereena vs Valsan on 2 December, 2019

Author: C.S.Dias

Bench: K.Harilal, C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR.JUSTICE K.HARILAL

                                   &

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

  MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941

                         OP (RC).No.196 OF 2019

   AGAINST THE ORDER/JUDGMENT IN RCP 2/2016 OF THE RENT CONTROL
                          COURT, VAIKOM

PETITIONER/S:

                SEREENA, AGED 37 YEARS
                W/O. NISHAMON, HOUSE WIFE, RESIDING AT NISHA MANZIL,
                THALAYOLAPARAMBU KARA, VADAYAR VILLAGE AT VAIKOM
                TALUK, THALAYOLAPARAMBU (PO), KOTTAYAM DISTRICT 686
                605.

                BY ADV. SRI.G.SREEKUMAR (CHELUR)

RESPONDENT/S:

      1         VALSAN, AGED 63 YEARS, S/O. KUNJURAMAN,TAILOR BY
                PROFESSION RESIDING AT KALAICKAL (H),
                THALAYOLAPARAMBU KARA, VADAYAR VILLAGE AT VAIKOM
                TALUK, PROPRIETOR, PANTS-HOUSE, THALAYOLAPARAMBU
                (PO), VAIKOM, KOTTAYAM DISTRICT 686 605.

      2         SUNIL,SECRETARY, THALAYOLAPARAMBU GRAMA PANCHAYATH,
                THALAYOLAPARAMBU, THALAYOLAPARAMBU (PO), VAIKOM,
                KOTTAYAM DISTRICT, 686 605.

                R1 BY ADV. SRI.NAGARAJ NARAYANAN
                R1 BY ADV. SRI.SAIJO HASSAN
                R1 BY ADV. SRI.BENOJ C AUGUSTIN
                R1 BY ADV. SRI.RAFEEK. V.K.
                R1 BY ADV. SRI.U.M.HASSAN
                R1 BY ADV. SMT.P.PARVATHY
                R1 BY ADV. SMT.SURYA P SHAJI
                R1 BY ADV. SHRI.MANAS P HAMEED
                R1 BY ADV. SHRI.GAUTHAM MOHAN H.
                R2 BY ADV. SRI.T.A.SHAJI (SR.)
                R2 BY ADV. SRI.ATHUL SHAJI
          THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
          02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE
          FOLLOWING:
                                 2
  OP(RC) 196 of 2019




                         JUDGMENT

C.S.DIAS, J.

This original petition is filed by the petitioner in R.C.P No.2/2016 of the Rent Control Court, Vaikom, under Article 227 of the Constitution of India, challenging Ext P8 order passed by the Rent Control Court.

2. The petitioner has filed the above rent control petition, seeking an order of eviction, against the first respondent.

3. It is the case of the petitioner that, the tenant has denied the petitioner's ownership over the petition schedule premises, compelling the petitioner to seek production of Ext X-2 document (Ext P-6 in the O.P) from the bank from whom the first respondent has allegedly obtained financial assistance. The first respondent denied possessing any licence issued by the second respondent.

4. The Secretary of the second respondent 3 OP(RC) 196 of 2019 denied issuing Ext X-2 licence from his office, while he was cross-examined, as there were no records.

5. In the above factual background, the petitioner filed Ext P-4 application seeking to issue notice to the second respondent, to show cause why he should not be punished for an offence under Sec.344 of the Code of Criminal Procedure (Cr.P.C for short). This Court by Ext P-5 judgment directed the Rent Control Court to take a decision on Ext P-4 within a month.

6. The Rent Control Court by Ext P-8 impugned order found that the prayer in the application was not allowable and consequently dismissed the application.

7. Assailing Ext P-8 order, the present original petition has been filed.

8. We have heard Sri.Sreekumar.G, the learned counsel for the petitioner and Sri.Nagaraj 4 OP(RC) 196 of 2019 Narayanan, the learned counsel for the respondent.

9. From the findings in the impugned order, it is clear that the Rent Control Court casted a doubt on the genuinity of Ext X-2 document produced and refused to accept the document as reliable to take action under Sec.344 of the Cr.P.C and consequently rejected the petitioner's claim for prosecution.

10. Sec.344 (1) of Cr.P.C reads as follows:-

344. Summary procedure for trial for giving false evidence - (1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance 5 OP(RC) 196 of 2019 of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.

(emphasis supplied)

11. Reading of Sec.344(1) makes it clear that, a decision as to giving false evidence or fabricating false evidence is to be taken at the time of delivery of judgment or final order, while disposing of the judicial proceedings.

12. It is brought to our notice that the evidence in the above case is completed and the case is posted for hearing. Going by the prayers sought for in Ext P-4 read with Sec.344 of Cr.P.C, the Court is bound to take a decision on Ext P-4 application only at the time of delivery of any judgment or final order. The 6 OP(RC) 196 of 2019 Rent Control Court has not been reached that stage in the above case.

13. The petitioner will have to necessarily summon all documents, including the office file pertaining to Ext P-6 and substantiate that the second respondent has committed an offence under Sec.344 of Cr.P.C, as contended in Ext P-4 application.

14. In the above facts and circumstances, we do not find any error of jurisdiction committed by the Rent Control Court in passing Ext P-8 order, at the present stage. However, untramelled by the observations in this judgment, the petitioner will be at liberty to summon the entire file leading to Ext P-6 from the second respondent and substantiate his contentions in Ext P-4 application. The Rent Control Court is directed to take a decision in the matter after perusing the files and considering the evidence 7 OP(RC) 196 of 2019 of the parties at the time of delivery of the judgment/final order as per the mandate under Sec.344 Cr.P.C.

With these observations the above original petition is disposed of.

sd/-

K.HARILAL JUDGE sd/-

C.S.DIAS JUDGE sks/3.12.2019 8 OP(RC) 196 of 2019 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE RENT CONTROL PETITION BEARING NO. 2 OF 2016 DATED NIL ON THE FILE OF THE RENT CONTROL COURT, VAIKOM.

EXHIBIT P2 A TRUE COPY OF THE OBJECTION FILED IN RENT CONTROL PETITION BEARING NO. 2 OF 2016 DATED NIL ON THE FILE OF THE RENT CONTROL COURT, VAIKOM EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN RCP NO 2 OF 2016 DATED 30-01-2018 ON THE FILE OF THE RENT CONTROL COURT, VAIKOM.

EXHIBIT P4 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER AS IA NO. 1506 OF 2019 IN R C P NO. 2 OF 2016 DATED 21- 10-2019 ON THE FILE OF THE RENT CONTROL COURT, VAIKOM.

EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN OP (RC) N0 176 OF 2019 BY THIS HON'BLE COURT DATED 24-10-2019.

EXHIBIT P6 A TRUE COPY OF THE LICENSE SUMMONED BY THE PETITIONER AND SUBMITTED IN COURT DATED NIL.

EXHIBIT P7 A TRUE COPY OF THE DIGITAL EXTRACT PRODUCED BY THE PETITIONER IN COURT DATED NIL.

EXHIBIT P8 A TRUE COPY OF THE ORDER PASSED IN IA NO. 1506 OF 2019 IN RCP NO. 2 OF 2016 DATED 7-11-2019 ON THE FILE OF THE RENT CONTROL COURT, VAIKOM.