High Court Kerala High Court

Chittre Paru vs Kunduvalappil Anandan on 7 August, 2009

Kerala High Court
Chittre Paru vs Kunduvalappil Anandan on 7 August, 2009
       

  

  

 
 
  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.
                       ------------------------
                      R.C.R.No.102 OF 2005
                       ------------------------

              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
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