JUDGMENT

Ajithkumar, J.

The respondent-tenant in R.C.P.No.7 of 2019 on the file of the Rent Control Court (Munsiff), Thalassery, has filed this Original Petition, invoking the provisions of Article 227 of the Constitution of India. The petitioner seeks to set aside Ext.P5 order stating that it is totally incorrect and illegal. Ext.P5 is an order dated 04.07.2022 of the Rent Control Court dismissing I.A.No.6 of 2022 in R.C.P.No.7 of 2019, which was filed by the petitioner seeking a direction to the respondents-landlords to produce a few documents.

2. When this matter came up for consideration today, we heard the learned counsel appearing for the petitioner in detail.

3. Ext.P3 is a copy of I.A.No.6 of 2022 filed by the petitioner. In RC.P.No.7 of 2019 trial was commenced. PWs 1 and 2 were examined. PW1 is one of the landlords. PW2 is his dependent son for whose need eviction of the petitioner from the petition schedule shop room has been sought. The R.C.P.

was filed under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner has filed an objection in the R.C.P., a copy of which is Ext.P2. The petitioner contended that the need urged by the respondents was not bona fide. One of the contentions raised by the petitioner is that the wife of PW2 was employed abroad and he was also employed abroad. While examined in court, PW2 denied having any employment abroad. It was in the said circumstances, the petitioner filed Ext.P3 application to direct the respondents-landlords to produce the passport and bank account details of PW2.

4. The learned counsel appearing for the petitioner would contend that the Rent Control Court did not consider the application in its proper perspective. In his view, it was the obligation of the respondents to produce the best evidence, and therefore, the passport and bank account details should have been produced. It is pointed out that PW2 during examination has undertaken to produce his passport and bank account details, but he failed. Therefore, the Rent Control Court ought to have directed the respondents to produce the said documents, in order to take an appropriate decision in the R.C.P.

5. The respondents seek eviction of the petitioner on the ground of arrears of rent and bona fide need. There cannot be any dispute to the proposition that it is the burden of the respondents to prove that the need urged by him is bona fide. If a document is required to be produced in order to establish that fact, it would be the burden of the respondents to produce such a document. Consequence of non-production of such a document is a question required to be considered and answered in the light of the entire evidence that would come on record during the trial. It is for the Rent Control Court to take a call on that question at the time of disposal of the R.C.P.

6. Section 114(g) of the Indian Evidence Act, 1872 enables a court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. In the light of the said provision, if an item of evidence is withheld by a party, the court may make an adverse inference. The maxim ‘omnia praesumuntur contra spoliatorem’ (if a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted) is the underlying principle. At the same time, it has to be kept in mind that adverse inference shall not be drawn by the court merely because it is lawful to do so. In the matter of drawing adverse inference, the court shall consider the question, whether the document withheld, has any relevance in the context of the dispute. Therefore, the question depends upon whom the burden to prove the fact is cast. At any rate, there is no justification for the petitioner to file Ext. P3 application thereby compelling PW2, who is not a party to the proceedings to produce such documents.

7. It is to be noted that Ext.P3 applicatio