High Court Kerala High Court

Thayyil Mohammad Haji vs Abdul Mateen on 8 June, 2009

Kerala High Court
Thayyil Mohammad Haji vs Abdul Mateen on 8 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 247 of 2008()


1. THAYYIL MOHAMMAD HAJI
                      ...  Petitioner
2. KOTTATHARA VALIYAKATH ABDUL AZEEZ
3. PUNNASSERI HYDER HAJI

                        Vs



1. ABDUL MATEEN, AGED 50 YEARS
                       ...       Respondent

2. SEEMA SUHAIL, AGED 48 YEARS

3. BEEBI FATHIMA ISMAIL,AGED 69 YEARS

4. MUHAMMAD SUHAIL ISMAIL, AGED 57 YEARS

5. SAMIHA, AGED 47 YEARS

6. SAMEENA, AGED 46 YEARS

7. ABDUL MAJEED, AGED 49 YEARS

                For Petitioner  :SRI.V.SREENATH

                For Respondent  :SRI.AVM.SALAHUDIN

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :08/06/2009

 O R D E R
               PIUS C. KURIAKOSE &
               P. Q. BARKATH ALI, JJ.
           ------------------------------------------------
                   R. C. R. No.247 of 2008
           ------------------------------------------------
             Dated this the 8th day of June, 2009

                             ORDER

Pius C. Kuriakose, J

Under challenge in this revision initiated at the

instance of the tenants is an order of eviction passed

under Section 11(2)(b) concurrently by the Rent

Control Court and the Appellate Authority. Parties are

referred to as landlord and tenant respectively.

2. The allegation of the landlord as stated in the

Rent Control Petition was that rent at the rate of

Rs.5,250/- per mensm is in arrears with effect from

01/01/2000. The tenant who is conducting a lodging

house in the petition schedule building did not dispute

the contract rent. The contention prominently raised

was that he has expended a total amount of

R. C. R. No.247 of 2008 -2-

Rs.3,92,793/- towards repairs of this building. Ext.B4

agreement executed between the parties (the landlord

being represented by his duly constituted power of

attorney holder) was relied on in support of the above

contention. Apart from Ext.B4, the tenant produced

vouchers Exts.B5 to B108 to show that he had

expended amounts towards repairing the building.

Initially, the landlord’s case in answer to Exts.B5 to

B108 was that Ext.B4 is not binding on him inasmuch

as he has not authorised his power of attorney holder

to enter into Ext.B4 on his behalf. He also denied the

tenants’ contention that amounts were expended

against Exts.B5 to B108. The Rent Control Court on

evaluating the evidence would repel the landlord’s

case that Ext.B4 is not binding on him. It was found

R. C. R. No.247 of 2008 -3-

that Ext.B4 was executed on behalf of the landlord by

his duly constituted power of attorney holder. Never-

the-less, the court below did not become inclined to

accept the tenants’ case that amounts were expended

under Exts.B5 to B108 pursuant to Ext.B4. The Rent

Control Court found that there was no evidence to

show that the landlord had been requested by the

tenant to carry out the repairs. The Rent Control Court

also found that the question whether the tenant had

expended so much of amounts against Exts.B5 and

B108 is capable of being proved by producing the

account books which were being maintained by the

tenant who was running a lodging house. The

Appellate Authority also would substantially endorse

the findings of the Rent Control Court in this regard

R. C. R. No.247 of 2008 -4-

and dismiss the appeal preferred by the tenant.

3. We have heard the submissions of

Sri.V.Sreenath, learned counsel for the revision

petitioners and those of Sri.A.V.M.Salahudin, the

learned counsel for the landlord.

4. Sri.V.Sreenath would assail the findings of the

Rent Control Court and the Appellate Authority very

forcefully. He submitted that the Rent Control Court

having found that Ext.B4 was an agreement duly

entered into on behalf of the landlord was not justified

in denying the tenants’ case of having expended

amounts against Exts.B5 to B108. The genuineness of

Exts.B5 to B108 was beyond question, according to

Sri.V.Sreenath, the learned counsel for the tenants.

5. Sri.A.V.M.Salahudin, the learned counsel for

R. C. R. No.247 of 2008 -5-

the landlord would submit that this Court sitting in

revision under Section 20 of Act 2 of 1965 is not

expected to reappraise the evidence and substitute the

conclusions of fact already entered into by the fact

finding authorities under the statutes for its own

finding. According to him, the building in question, has

got as many as 34 rooms and the tenant is making a

fortune out of the building without caring to pay even

the paltry monthly rent agreed upon during the past

nine years.

6. We have anxiously considered the rival

submissions. We do not find reason to disapprove the

findings of the Rent Control Court and the Appellate

Authority that Ext.B4 was duly entered into on behalf

of the landlord also by his duly constituted power of

R. C. R. No.247 of 2008 -6-

attorney holder. But at the same time, we find that

Ext.B4 was entered into between the parties at a time

when the statutory authority, the Accommodation

Controller was seizing of an application submitted by

the tenants under Section 17 of Act 2 of 1965. The

reason mentioned in Ext.B4 for entering into Ext.B4 is

the long pendency of the proceedings before the

Accommodation Controller and one of the important

provisions in Ext.B4 is that the Accommodation

Controller will be informed of Ext.B4 by both the

parties by producing the same before the

Accommodation Controller and by filing a joint

statement. Admittedly the Accommodation Controller

was never informed about Ext.B4 and the fiat of the

Accommodation Controller, the statutory authority has

R. C. R. No.247 of 2008 -7-

not been obtained by the parties to Ext.B4.

7. Leaving that alone, the important question to

be considered is whether the contention of the

petitioner that he has expended Rs.3,92,793/-

towards repairing the building pursuant to Ext.B4 is

true. Sri.V.Sreenath, the learned counsel for the

revision petitioners would fairly concede before us that

the total amount expended by the tenants-petitioners

pursuant to Ext.B4 is only Rs.1,91,000/- and not

Rs.3,92,793/- as claimed by the revision petitioners.

He also agreed that on the terms of Ext.B4, it is the

obligation of the tenant to bear 50% of the amount

amounting to Rs.95,500/-. Even if the petitioners’ case

that they have expended Rs.95,500/- towards

repairing the building pursuant to Ext.B4 is accepted,

R. C. R. No.247 of 2008 -8-

then also it is evident that as on the date of filing of

the Rent Control Petition, rent was in arrears, which

means an order of eviction under Section 11(2)(b) was

inevitable. Now the Rent Control Court and the

Appellate Authority have concurrently found that it is

difficult to accept the case of the petitioners of having

expended amounts on the basis of Exts.B5 to B108

pursuant to Ext.B4. The reasons stated by the

authorities is that Exts.B5 to B108 are mere vouchers

and if those vouchers are genuine vouchers then it will

definitely find a place in the account books maintained

by the tenants or in the report by the Advocate

Commissioner. The above reason, according to us, is

reasonable. We, sitting in revisional jurisdiction under

Section 20 of Act 2 of 1965, are not expected to

R. C. R. No.247 of 2008 -9-

interfere with the findings entered into concurrently by

both the courts below when they are reasonable and

founded on evidence.

8. Having gone through the contours of this

Court’s jurisdiction under Section 20 of Act 2 of 1965,

we do not find any warrant for interference. We

hereby confirm the order of eviction passed under

Section 11(2)(b) of Act 2 of 1965 by the courts below.

9. It is finally submitted by Sri.V.Sreenath, the

learned counsel for the petitioners that the entire

arrears of rent due in respect of petition schedule

building is in deposit before the Rent Control Court.

The counsel requested that the above deposit be

noticed and the order of eviction under Section 11(2)

(b) be set aside under Section 11(2)(c).

R. C. R. No.247 of 2008 -10-

10. Sri.A.V.M.Salahudin, the learned counsel for

the respondents/landlord would submit that the

amount deposited will not cover the entire amount

actually due. We are of the view that the sufficiency of

the amount under deposit is a matter to be decided by

the Rent Control Court in a proceeding under Section

11(2)(c) to be initiated by the revision

petitioner/tenant. Therefore, even as we are

dismissing the revision confirming the order of eviction

passed by the Rent Control Court and the Appellate

Authority, we permit the revision petitioner to file a

petitioner under Section 11(2)(c) before the Rent

Control Court. The Rent Control Court will in that

proceeding pass appropriate orders deciding the

correct amount to be deposited/paid by the revision

R. C. R. No.247 of 2008 -11-

petitioners/tenants to have the order of eviction set

aside under Section 11(2)(c).

11. This RCR is dismissed, but in the

circumstances, without any order as to costs. It is

needless to mention that the amount under deposit is

due to the landlord who is entitled to withdraw the

same. If for any reason the Rent Control Court finds

that the amounts under deposit are not sufficient that

court will grant at least two months’ time to the

revision petitioner to deposit the deficit.

PIUS C. KURIAKOSE
JUDGE

P. Q. BARKATH ALI
JUDGE
kns/-