Point of Law: when the petitioner demands the commissioner to verify the lease agreements, it presupposes existence of such documents. If so, after complying with the provisions of Section 65(a) of the Evidence Act, only secondary evidence can be allowed to be let in.

JUDGMENT :

P.G. AJITHKUMAR, J.

1. The respondent filed Rent Control Petition No. 4 of 2017 before the Rent Control Court (Munsiff Court), Payyoli seeking eviction of the petitioner under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner filed Interlocutory Application No. 2 of 2021 in the R.C.P. for appointment of a commission. The respondent resisted it by filing a counter affidavit. The Rent Control Court dismissed the application as per Ext.P5 order dated 10.08.2021. The petitioner challenges legality of Ext.P5 order in this original petition filed under Article 227 of the Constitution of India.

2. Heard the learned counsel appearing for the petitioner and the respondent.

3. The learned counsel for the petitioner submitted that the respondent gave evidence as PW-1 in the R.C.P. and during cross examination he undertook to take out a commission, but later shied away and hence, the petitioner was compelled to file I.A. No. 2 of 2021. The learned counsel would contend that the claim for eviction under Section 11(3) of the Act was resisted by the petitioner on the ground inter-alia that the respondent has been in possession of several other vacant rooms. PW-1 admitted that he owns 14 rooms. However he took a stand that those rooms were let out to others, which according to the petitioner is untrue. It was in the said circumstances the petitioner was compelled to take out a commission, but the Rent Control Court illegally disallowed the application, I.A. No. 2 of 2021.

4. Per contra, the learned counsel appearing for the respondent would contend that a question was put dubiously to PW-1 asking his willingness to take out a commission and sticking to the inadvertent answer given by him the petitioner wanted to take out a commission, which was an attempt to delay and obstruct trial of the case.

5. Chakko P. Mathew vs. Kuttappan, 2002 KHC 583 and Vayalilakath Abdul Nazar vs. Paruthuthodi Mammad Koya, 2011 (2) KLT 914 are the authorities sufficient to hold that the burden to prove the first proviso to section 11(3) of the Act is on the tenant. In Ashraf vs. Shamnas, 2020 KHC 3391, it was further held that only if it is established by the tenant that there are other suitable buildings in the possession of the landlord for the need projected, the burden shifts to the landlord to prove special reasons.

6. Therefore, it is the burden of the petitioner-tenant to prove availability of vacant rooms with the respondent and only on such proof, the respondent-landlord has the liability to show special reasons to get an order of eviction. In that view of the matter, it was only prudent for the petitioner to take out a commission sufficiently early, if she wanted to prove the fact of availability of vacant rooms with the respondent. All the same, had there been vacant rooms available in the possession of the respondent, it would be a reasonable expectation of the petitioner to bring that fact in evidence through cross examination of the respondent. Having failed, the petitioner filed the application for appointing a commission for local inspection. In a normal situation, a commission application to collect evidence after commencement of trial is not justified. In this case we notice that during cross-examination, PW-1 stated his preparedness to take out a commission for the specific purpose of showing that no vacant room is available with him. It was on 02.08.2021. Having failed only the petitioner filed I.A. No. 2 of 2021 on 08.08.2021. After considering the above facts and circumstances, we are of the view that the Rent Control Court ought to have allowed the application, which ultimately would help the court to take a just decision in the case.

7. The second query posed in the application for appointment of commission is, 'to examine the rent agreements with respect to the rooms let out by the respondent and make a report'. We are afraid, a commissioner deputed for local inspection can be asked to