High Court Kerala High Court

K.S.Achan Kunhu vs Mary Varghese on 15 January, 2010

Kerala High Court
K.S.Achan Kunhu vs Mary Varghese on 15 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 934 of 2003(F)


1. K.S.ACHAN KUNHU, S/O. SAMUVAL,
                      ...  Petitioner

                        Vs



1. MARY VARGHESE, D/O. GEORGE,
                       ...       Respondent

                For Petitioner  :SRI.S.V.BALAKRISHNA IYER (SR.)

                For Respondent  :SRI.P.R.VENKETESH

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :15/01/2010

 O R D E R
     PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.
            ------------------------------------------
                CRP. Nos. 934 & 979 of 2003
           -------------------------------------------
          Dated this the 15th day of January, 2010

                           O R D E R

Pius C. Kuriakose, J.

The tenant against whom order of eviction is passed on

the ground under clause 2 of sub section 4 of section 11 and

clause (b) of sub section 2 of section 11 i.e. the ground of

user of the building in such a manner as to reduce the value

and utility of the building materially and permanently and

the ground of arrears of rent concurrently by the Rent

Control Court and the Appellate Authority in respect of two

adjacent rooms belonging to two different landladies who

are direct sisters, is the petitioner in these revisions under

section 20. The parties will be referred to hereinafter as the

tenant and the landladies. The landladies sought to evict the

tenant on the grounds under section 11(3) bona fide need

for own occupation and section 11(4)(iii) the ground that

the tenant is in possession of other buildings reasonably

CRP. 934 & 979 of 2003

– 2 –

sufficient for his requirements also. The ground of bona fide

need for own occupation was given up by the landladies

even before the trial was conducted by the Rent Control

Court and the ground under section 11(4)(iii) was

disallowed by the Rent Control Court and that decision has

attained finality.

2. As for the ground of arrears of rent, there is some

controversy at the Bar as to whether subsequently, the

arrears of rent found by the Rent Control Court and the

Appellate Authority to be due as alleged by the landladies

has been completely discharged by the tenant. Since it is

conceded that the order of eviction is yet to be formally got

vacated under section 11(2)(c), we do not propose to deal

with that ground except to say that the tenant will have two

months from today to file a formal application under section

11(2)(c) for getting the order of eviction passed under

section 11(2)(b) vacated. It is needless to say that while

CRP. 934 & 979 of 2003

– 3 –

considering that application under section 11(2)(c), the Rent

Control Court will examine whether entire arrears of rent as

found by the Rent Control Court has been discharged. It was

conceded that we in these revision petitions need be

concerned seriously only with the legality, regularity and

propriety of the order of eviction passed by the authorities

below on the ground under section 11(4)(ii).

3. The case of the landladies as pleaded in the Rent

Control Petitions was that the building in RCP No.9/94

corresponding to CRP No.934/03 and the building in

RCP.10/94 corresponding to CRP No.979/03 were let out by

the landladies who are sisters to the revision

petitioner/tenant on 07/08/96 on the basis of rent chits on a

monthly rent of Rs.400/-. The rooms were adjacent rooms.

While being in possession of these rooms, the tenant

without the consent and knowledge of the landladies

demolished the partition wall in between the rooms and

CRP. 934 & 979 of 2003

– 4 –

thereby causing substantial and permanent damages to the

rooms. The strength of the building was reduced due to the

demolition of partition wall. The identity and security of the

rooms was lost due to the Act of the tenant. The tenant

without the knowledge and consent of the landladies

lowered the front portion of the rooms to a depth of 1.5 feet

and the back portion of the rooms to a depth of three feet.

As a result of this act also the strength of the rooms was

affected. These alterations have reduced the value and

utility of the building. Through the statement of objections

filed by the revision petitioners, it was contended that the

possession of the rooms was given on a monthly rent of

Rs.350/- as per a kachit dt.11/07/86 for a period of eleven

months for conduct of HMT watches show room. On the

terms of the lease deed, the tenant was permitted to

demolish the partition walls up to a hight of 50 cms and to a

length of 2.5 metres for the purpose of conduct of the show

CRP. 934 & 979 of 2003

– 5 –

rooms. Accordingly, the tenant removed the partition wall to

that extent. While so, the tenant requested the landladies

for the permission of removal of the partition wall in

entirety. They stated that if the rent is enhanced to

Rs.400/-, such permission will be granted and on that basis

and with the permission of the landladies, the tenant

removed the partition walls and executed a kachit

dt.07/08/86 increasing the rent to Rs.400/-. The allegation

that the partition walls was removed without the consent

and permission of the landladies is wrong. The tenants

agreed to enhance the rent to Rs.400/- on condition that

permission be granted for removal of the partition wall and

the partition wall was removed after executing kachit dated

7-6-1986 enhancing the rent to Rs.400/-. It is then

contended that for separating the two rooms which were

subject matter of the two RCPs there was a partition wall

which was made of bricks and three concrete pillers. The

CRP. 934 & 979 of 2003

– 6 –

tenant had only removed the brick wall. By doing so, the

value and utility of the building as well as strength of the

building is not affected at all. On the other hand the

convenience of the room has increased. The partition wall

as it originally existed can be reconstructed at any time

without difficulty. The show room was constructed by the

tenant by joining the two rooms after spending huge

amounts. The earlier rent control petition filed by the

landladies for the selfsame relief was dismissed by the High

Court. Hence the present rent control petition is not

maintainable.

4. At trial by the Rent Control Court, the evidence in

the two cases which were tried jointly by that court

consisted of Exts.A1 to A13, oral evidence of PWs 1 and 2

on the side of the landladies. On the side of the tenants,

the same consisted of Exts.B1 to B4 and the testimonies of

RW1 and RW2. The report and sketch submitted by the

CRP. 934 & 979 of 2003

– 7 –

Commissioner who conducted inspection were marked as

Exts.C1 and C2. On evaluating the evidence, the Rent

Control Court came to the conclusion that the tenant has

used the building in such a manner as to reduce the value

and utility of the buildings materially and permanently and

accordingly passed an order of eviction on the ground under

Section 11(4)(iv). Separate appeals were preferred to the

Rent Control Appellate Authority by the tenants as RCA.

Nos. 2 & 3 of 1997. The Rent Control Appellate Authority

considered the appeals together, reappraised the evidence

and concurred with the conclusions of the Rent Control

Court. Accordingly the order of eviction passed under

Section 11(2)(b) and Section 11(4)(ii) were confirmed and

the appeals were dismissed.

5. In these revisions under Section 20 the judgment of

the Rent Control Appellate Authority is impugned on various

grounds and Sri.S.V.Balakrishna Iyer, learned senior counsel

CRP. 934 & 979 of 2003

– 8 –

for the revision petitioner addressed us strenuously on the

basis of all those grounds. All the submissions of

Mr.Balakrishna Iyer were effectively resisted by Sri.P.C.

Chacko, learned counsel for the respondent landladies.

Sri.Balakrishna Iyer argued that the order of the Rent

Control Court and the judgment of the Rent Control

Appellate Authority is the result of misreading of evidence

by those two fact finding authorities. According to him, the

Appellate Authority erred in thinking that what is pleaded in

the counter statement by the tenants is that the partition

wall was removed after A1 and A2 rent bonds. No such

admission has been made the tenant through his pleadings.

According to Mr.Balakrishna Iyer, the pleadings as well as

the evidence on the side of the tenants regarding the time

of removal of the partition wall is consistent and the

Appellate Authority has gone wrong in thinking that there is

inconsistency between the pleadings and evidence.

CRP. 934 & 979 of 2003

– 9 –

According to the learned senior counsel, the Appellate

Authority has misread and misunderstood Ext.A13

deposition as well as the testimony of RW2. The Appellate

Authority should have enquired into the circumstances

which necessitated execution of fresh rent bonds

immediately after Exts.B3 and B1 koolichits were executed.

The Appellate Authority should have found that as

consideration for the consent given by the landladies for

removal of the wall and lowering of the floor only the

tenants agreed to pay Rs.50/- more and to execute fresh

rent bonds. According to the learned senior counsel the

Appellate Authority should have held that in the light of

Exts.B1 and B3 the landladies cannot say that they had

never agreed to the removal of any portion of the partition

wall as they have pleaded in the petitions for eviction.

According to the learned counsel, it is in evidence that the

landladies approached the court with a false case. According

CRP. 934 & 979 of 2003

– 10 –

to Mr. Balakrishna Iyer, if nothing further than the alteration

agreed to in B3 and B1 were required, then there was no

necessity to execute fresh rent bonds. In the rent bonds

Exts.A1 and A2, there is no mention at all about any

alteration and they proceed as if the two rooms are

independent units . This circumstance will also probabilise

that by the time Exts.A1 and A2 were executed, further

alterations were already carried out. According to Mr.

Balakrishna Iyer if the further alterations are proved to be

with the consent of the landladies, then there is no question

of considering whether these alterations have affected the

value and utility of the building. Mr. Balakrishna Iyer

argued that the landladies have no case that the lowering of

the floor at two places was done at a different point of time.

If that be so, the said act was also done when the further

removal of the wall was carried out and the lowering of the

floor was also with the consent of the landladies. According

CRP. 934 & 979 of 2003

– 11 –

to Mr. Balakrishna Iyer, the Appellate Authority has erred in

thinking that the shop floor level is below the road level and

therefore there is chance of water seeping in and the same

affects the stability of the building. Counsel submitted that

the alterations effected by the tenants actually enhances the

value and utility of the building. Counsel would assail the

finding of the Appellate Authority regarding arrears of rent

and also submitted that at any rate, the entire arrears of

rent as found by the authorities have been paid off. Due to

such payment the order of eviction under Section 11(2)(b)

stands automatically vacated.

6. Sri.P.C.Chacko, learned counsel for the respondent

would remind us of the contours of the jurisdiction of the

revisional court under Section 20. He would support the

judgment of the Rent Control Appellate Authority and

submit that all the findings entered by the Rent Control

Appellate Authority are founded on evidence. According to

CRP. 934 & 979 of 2003

– 12 –

him, there is no warrant for interference with those findings.

7. We have very anxiously considered the rival

submissions addressed at the Bar. Even though this Court

in revision under section 20 is not normally expected to

make a reappraisal of the evidence, considering the

strenuous submissions addressed before us by Mr.

Balakrishna Iyer, we have made a quick survey of the

evidence as well as the pleadings. Having regard to the well

delineated contours of the revisional jurisdiction of this

Court under Section 20, we are of the view that there is no

warrant for interference with the findings of the Appellate

Authority. According to the landladies, the tenant removed

the partition wall in between the two rooms which are

adjacent, thereby destroying the identity of the rooms and

causing substantial damages to the same resulting in

reduction of the value and utility of the rooms materially

and permanently. The specific allegations of the landladies

CRP. 934 & 979 of 2003

– 13 –

is that the tenant without their consent and knowledge

lowered the front floor to a depth of 1 = feet and the back

floor to a depth of 3 feet. The tenant’s contention

essentially is that he effected the alterations with the

consent and knowledge of the landladies and that on

account of the alterations done by him the value and utility

of the buildings has become enhanced. The tenant testified

as RW1 that as per B1 and B3 he is entitled to make

alterations to the two rooms. On the mediation of one

C.P.Varghese and Sri.M.Jacob he was permitted to remove

the partition wall and make other alterations. It was

accordingly that the rent was enhanced by Rs.50/- for each

room. Thereafter A1 and A2 were executed. The alterations

were effected after the execution of A1 and A2,. The rear

portion of the rooms were lowered by 1 = feet, the

partition wall was removed, denolium was fixed on the floor

and glass was fitted behind the shutter. The tenant also

CRP. 934 & 979 of 2003

– 14 –

constructed a berth with plants. Due to these no damage

has been caused to the building. By the alterations, the

water from outside will not enter the rooms. In cross

examination the tenant stated that it was after the

alterations that he filed necessary applications before the

Bathery Panchayat. He holds the rooms under A1 and A2.

He signed A1 and A2 after reading through its contents. It

is incorrect to say that on 11-7-1986 the first modification

was effected as per the agreement and the wall was

removed for 2 = metres in length and 50 cms. in height.

He would state that such statement is not correct. What he

stated is that the modifications were effected before

receiving Ext. B2. Before Ext.B2, the partition wall was

retained to a height of 50 cms. and 2 = feet was left on

the rear side. He conceded that as per Ext. A2 the wall is

to be retained to a length of 7 = feet. He also conceded

that as per Exts. B1 to B3, no permission was granted to

CRP. 934 & 979 of 2003

– 15 –

him to dig the floor. He further conceded that as per B2 he

cannot remove the wall for a length of 7 = ft. He admitted

that the provision to retain the wall for a height of 80 cms.

was for retaining the identity of the rooms. He conceded

that no permission was granted to him to remove the entire

wall and that presently there is only one door on the two

rooms and that the same was on the western side.

8. The learned District Judge who is the final fact

finding authority under the scheme of the Rent Control Act

found on appreciating the evidence of the tenant that he is

highly artificial laboured and strained. The Appellate

Authority noticed that admittedly the tenant is in possession

of the rooms as per Exts.A1 and A2. Going by A1 and A2

the two rooms have got separate identities of their own. A1

and A2 contains an express undertaking by the tenant not to

make any alterations to the rooms. Exts.B1 and B3 dated

11-7-1986 are the earlier rent chits with respect to the two

CRP. 934 & 979 of 2003

– 16 –

rooms. These documents will show that the tenant was

allowed to remove a portion of the partition wall in between

the two rooms. But it is specifically provided therein that

the partition wall has to be retained for a length of 2 =

metres from the rear side and also that for the remaining

portion, the partition wall has to be retained to a height of

50 cms. Ext. B2 letter given by the landlady will show that

the retention of the wall to the extent mentioned in Exts. B1

and B3 is reiterated therein. The learned District Judge

found that in the light of these documents that it was highly

improbable that the landladies would have permitted the

appellant to remove the entire wall and also to lower the

level of the ground on the front and in the rear side as

claimed by the tenant. On appreciating the evidence and

the pleadings, the District Court found that the tenant does

not have a consistent case regarding the time when the

alterations are made. It was noticed that in the counter the

CRP. 934 & 979 of 2003

– 17 –

tenant claimed that he had removed the partition wall

subsequent to the execution of A1 and A2. But during the

cross examination what is stated was that a partition wall

was removed prior to A1 and A2. Ext.A13 which is copy of

the tenant’s deposition in the earlier proceedings will show

that the tenant’s version at that time was that he removed

the partition wall subsequent to A1 and A2. On the basis of

the evidence including commissioner’s report the District

Court found agreeing with the Rent Control Court that the

alterations effected are material and substantial in nature.

Hence on a preponderance of probability the District Judge

found that it is highly improbable that the landladies would

have given permission to make such material alterations as

the tenant claims. RW2 is a member of KPCC. He stated in

chief examination that on his mediation permission was

granted to the tenant to remove the partition wall and to

construct a berth. But in cross examination he stated that

CRP. 934 & 979 of 2003

– 18 –

the wall was removed after the execution of the rent bond.

But this version is controverted by the evidence of RW1 as

noticed by the Appellate Authority. The finding of the Rent

Control Appellate Authority which is final fact finding court

under the statutory scheme on appreciating the evidence is

that he is a casual witness highly interested in the tenant.

The evidence adduced by PWs 1 and 2, the two landladies

inspired confidence in the mind of the Rent Control Court

which had the advantage of recording their testimonies as

well as the Appellate Authority, the final court on facts. On

the basis of the evidence only it was found that the removal

of the partition wall and the alterations highlighted in the

RCP were effected without the consent of the landladies.

9. The next question whether by virtue of the

alterations, the value and utility of the building has been

materially and permanently reduced was also seriously

considered by both the authorities. Ext.A6 commission

CRP. 934 & 979 of 2003

– 19 –

report will show that presently there is just one shop room

with a single frontage and a single name Board covering the

entire width of the shop room and that the sale entrance is

through the western portion. The report will further show

that the flooring of the front side portion is on level with the

main road and the front side of the shop room is completely

closed with glass. It is also reported that the front portion

is 1 = ft. lower than the boundaries basement of the pillars

and that the back portion about 4 ft. lower than the front

side portion. It was reported that the entrance to the pit

portion is through two steps constructed in the middle and

that the back side portion is divided into two. It was also

reported by C-1 that the northern portion of the room was

dug to the extent of 33 = inches and on the southern side

by 18 inches. There are two steps in the centre of the

room. It is further reported in C1, that the dug portion is

divided into two and there is no wall to divide or separate

CRP. 934 & 979 of 2003

– 20 –

the rooms. C2 is the sketch in respect of C1 report. On the

basis of Ext.C1 and C2 it was found that the tenant had

removed the partition wall between the two rooms, that the

tenant had dug the floor of the rooms and lowered its level

by 1 = feet and 3 ft. respectively. The Appellate Authority

found that these are substantial alterations of a permanent

nature. It was found that the identity of the two rooms

have been completely lost and the room has become one

single room. The Appellate Authority rightly found that the

question whether the value and utility of the building has

been reduced materially and permanently has to be viewed

from the point of view of the landlady and not that of the

tenant. The judgment of the Supreme Court in (1993) 2

SCC 614 was relied on by the learned District Judge in this

context. The learned District Judge also relied on the

judgment of a Division Bench of this Court in ILR 2002 (3)

Kerala 574.

CRP. 934 & 979 of 2003

– 21 –

10. Having scanned the judgment of the Rent Control

Appellate Authority we do not find any illegality, irregularity

or impropriety as envisaged by Section 20 of Act 2 of 1965.

The conclusions concurrently arrived by the authorities

below are quite reasonable and there is no warrant for

interference having regard to the contours of the jurisdiction

under Section 20 which is revisional.

11. The result is that both the revision petitions fail.

However, considering the last plea of Sri. S.V.Balakrishna

Iyer for grant of time, the execution court is directed to

defer delivery till 30-9-2010 subject to the following

conditions.

The revision petitioner files an undertaking before the

execution court or the Rent Control Court as the case may

be, within two weeks of the court reopening after

midsummer holidays to the effect that he will surrender

possession of the petition schedule premises peacefully on

CRP. 934 & 979 of 2003

– 22 –

or before 30-9-2010. It will also be undertaken through the

affidavit that arrears of rent if any, will be discharged and

that occupational charges at the current rent rate will also

be paid as and when the same falls due without fail.

PIUS C.KURIAKOSE, JUDGE

C.K. ABDUL REHIM, JUDGE
ksv/-

CRP. 934 & 979 of 2003

– 23 –

PIUS C.KURIAKOSE &
C.K.ABDUL REHIM, JJ.

CRP. No. 934 & 979 of 2003

O R D E R

15th January, 2010