IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 102 of 2005()
1. CHITTRE PARU, W/O.RAMUNNI,
... Petitioner
2. GOVINDAN CHITTRE, S/O.RAMUNNI,
3. C.JINESH ALIAS JITHESH, S/O.GOVINDAN,
4. C.JIJITHA, D/O.GOVINDAN, R/A.
Vs
1. KUNDUVALAPPIL ANANDAN, S/O.KUNHIRAMAN,
... Respondent
For Petitioner :SRI.CIBI THOMAS
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :07/08/2009
O R D E R
PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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R.C.R.No.102 OF 2005
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Dated this the 7th day of August, 2009
ORDER
Pius C.Kuriakose, J.
The landlords are in revision and they are aggrieved by the
judgment of the rent control appellate authority declining
eviction on the ground under Section 11 (4)(ii) (user of the
building in such a manner as to reduce the value and utility
materially and permanently). It has become evident in this case
that the petition schedule building, in fact two rooms, were
materially altered by the tenant and that too unauthorisedly
without the consent of the landlords. What the tenant did was
to remove the window and infact the entire front wall of the room
and to substitute the same with steel rolling shutter. The rent
control court, on an evaluation of the evidence, came to the
conclusion that eviction ground under clause (ii) of sub Section
(4) of Section 11 is made out. The appellate authority,
however, would make thorough reappraisal of the evidence and
conclude that evidence fell short of holding that the value and
utility of the building was materially and permanently reduced.
RCR.No.102/2005 2
Accordingly, the appellate authority set aside the order of the
rent control court and dismissed the RCP.
2. Sri.Cibi Thomas, learned counsel for the revision
petitioners has addressed us extensively on the basis of all the
grounds raised. He submitted that the question whether the
value and utility of the building has been reduced is to be
answered from the point of view of the landlords. He read over
to us the oral evidence which was given by the landlords before
the court below. According to him, the above evidence should
have been accepted by the appellate authority. Strong reliance
was placed by him on a number of precedents in support of his
arguments. Judgment of the Supreme Court in G.Reghunathan
v. K.V.Varghese (AIR 2005 SC 3680), State of Haryana and
others (AIR 1996 SC 2936), Vipin Kumar v. Roshan Lal & Others
(1993 (3) JT 171) and the judgment of this court in Selvaraj
Francis v. Returning Officer (2004 (3) KLT 889) and Michael v.
Paramara Group Devaswam(2006 (1) KLT 979) were among the
precedents cited before us by Sri.Cibi Thomas.
3. All the submissions of Sri.Cibi Thomas were resisted by
Sri.P.C.Chacko, learned counsel for the respondent tenant.
RCR.No.102/2005 3
Sri.Chacko reminded us of the contours of this court’s jurisdiction
under Section 20. Sri.Chacko also did not lag behind in citing
the decisions. G.Reghunathan v. K.V.Varghese (2005 (7) SCC
317), Abdul Kader v. George Joseph(2009(1) KLT 205),
G.Arunachalam (died) through L.R.’s and another v.
Thondarperienambi and another (AIR 1992 SC 977),
Viswanathan v. Porichu (1985 KLT 551), Ahammad Kanna v.
Muhammed Haneef (1967 KLT 841) were among the precedents
cited before us by Sri.Chacko.
4. We have considered the rival submissions addressed at
the Bar. Under the statutory scheme the final authority to decide
on facts is the rent control appellate authority. Having gone
through the impugned judgment of the rent control appellate
authority, we find that though the findings of that authority are
in reversal of the findings entered by the rent control court, that
authority’s findings are founded on evidence including
circumstantial evidence. It is true that the action of removal of
the window and the wall and substitution of the same with rolling
shutter was totally unauthorized action on the part of the tenant.
But the question to be considered is whether the action results
RCR.No.102/2005 4
in reduction in the value and utility of the building materially and
permanently. The building was let out by the landlords to the
tenant for a tyre resoling business. Even now i.e. even after the
alteration made to the building by the tenant, the tenant is able
to utilise the building for the purpose of tyre resoling works. In
other words, alteast in the matter of utilising the building for
doing tyre resoling work, utility has not reduced. Some of the
suggestions in cross examination of the landlords and the
answers given by the landlords will suggest that the building is
even now capable of being used for all the purposes for which it
could be used even prior to the alteration. In other words, the
evidence on record is not sufficient to hold that the utility of the
building has become reduced. Statutory eviction ground under
Section 11 (4) (ii) is made out only if the value or utility of the
building has been reduced materially and permanently. In the
instant case, we are also convinced that the utility of the
building has not become materially or permanently be reduced.
Though the evidence of the landlords is to the effect that the
value has become reduced, there is no cogent material to decide
as to the extent to which the value has been reduced. Reduction
RCR.No.102/2005 5
in the value has to be a permanent one. It is difficult to hold on
the evidence now available on record that the value of the
building has been permanently reduced on account of the action
of the tenant. It may be possible to restore the building to the
original condition once the rolling shutter is removed and the
window as well as the wall are restored. Either way, we are not
in a position to interfere with the finding of the appellate
authority that the eviction granted under section 11 (4) (ii) is
not made out. We cannot say that the finding of the appellate
authority is illegal, irregular, improper to the extent of
warranting invocation of the revisional jurisdiction under Section
20. However, we notice that the building in question is situated
in a very important area of the town. The rent fixed years ago
is, according to us, far below the fair rent. Having regard to the
importance of the locality where the building is situated, we are
of the view that if the same is let out now, it may fetch
Rs.1,500/- per month. At the same time we are inclined to refix
the contract rent payable by the tenant at Rs.500/-
prospectively with effect from 1st September 2009. The
respondent shall pay the rent at the rate of Rs.500/- per month
RCR.No.102/2005 6
with effect from 2/9/2009. It is made clear that such refixation
by us of the rent, is without prejudice to the right of either of the
parties to move the competent court for fixation of fair rent in
accordance with law.
The RCR will stand dismissed subject to our refixation of the
rent prospectively.
PIUS C.KURIAKOSE,JUDGE
P.Q.BARKATH ALI, JUDGE
dpk