JUDGMENT

Ajithkumar, J.

The respondent-landlord filed Rent Control Petition No.138 of 2015 for eviction before the Rent Control Court (Additional Munsiff-III), Ernakulam against the petitioner- tenant. Eviction was sought under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent was examined as PW1 at the trial. Exts.A1 to A11 were marked. Immediately thereafter, the respondent filed I.A.No.21 of 2021 under Order XVIII, Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 to recall PW1 for further examination. The Rent Control Court allowed that application. The said order, produced as Ext.P6, is impugned in this Original Petition filed under Article 227 of the Constitution of India.

2. On 25.10.2021, when the matter came up for consideration, Advocate A.Balagopal entered appearance for the respondent. On that day, proceedings in the rent control petition was ordered to be stayed for three weeks.

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

4. The learned counsel appearing for the petitioner would contend that the impugned order is totally wrong since the object behind recalling of PW1 is to fill up lacuna in evidence, which is totally prejudicial to the petitioner. It is contended that the respondent in his proof affidavit stated the entire evidence required in the light of the contention in the rent control petition and produced all documents on his side. After exhaustive cross- examination of PW1 by the petitioner herein, I.A.No.21 of 2021 was filed. Therefore, the order allowing recalling of PW1 is legally incorrect and liable to be set aside.

5. The learned counsel appearing for the respondent would contend that in the light of the contention of the petitioner that there was no landlord-tenant relationship, PW1, who is power of attorney of the respondent in her proof affidavit stated regarding the facts sufficient to establish the landlord-tenant relationship and nothing more. The respondent was under the bonafide impression that the Rent Control Court was considering only the question regarding denial of landlord-tenant relationship in the light of the second proviso to Section 11(1) of the Act and only when she was cross-examined by the learned counsel for the tenant, touching grounds for eviction set forth in the Rent Control Petition, she realised that the court proposes to consider the whole matter and not merely the question regarding maintainability. It was only for that reason, the respondent filed I.A.No.21 of 2021.

6. Ext.P3 is a copy of the proof affidavit filed by PW1 before the Rent Control Court. A perusal of Ext.P3 would reveal that evidence to prove existence of the landlord-tenant relationship alone has been stated in it. Absolutely nothing touching the grounds for eviction, namely, arrears of rent and bonafide need has been stated in the proof affidavit.

7. Ext.P6 is the impugned order. Main contention of the petitioner is that if PW1 is examined again, that will amount to filling up of lacuna in the evidence on the side of the respondent. The Rent Control Court while dealing with that contention observed that the preliminary point, whether the denial of landlord-tenant relationship is bonafide, has already been relegated to be decided after trial on the eviction petition. It means that the Rent Control Court decided to record evidence on all the issues involved in the case and to decide the question regarding maintainability thereafter.

8. Section 11 of the Act deals with eviction of tenants.

As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. As per the first proviso to Section 11(1), nothing contained in the Section shall apply to a tenant whose landlord is the State Government or the Central Governme