IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 180 of 2002(F)
1. JAMALUDEEN
... Petitioner
Vs
1. KAKKAMPERUMAL PILLAI
... Respondent
For Petitioner :SRI.P.K.MEETHIAN KUNJU
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :05/01/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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C.R.P.No. 180 OF 2002
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Dated this the 5 day of January, 2010
th
O R D E R
Pius C.Kuriakose, J.
The tenant against whom the Rent Control Appellate
Authority has passed an order of eviction on the ground of
arrears of rent is the revision petitioner. The parties will be
referred to as the tenant and the landlord. The landlord sought
to evict the tenant only on the ground of arrears of rent.
According to the landlord, the tenancy was governed by Ext.A1
Rent Chit and that monthly rent is Rs.150/-. The allegation was
that the rent at that rate was defaulted by the tenant since
1990, the date of execution of Ext.A1. Denying the allegation, it
was inter alia contended by the tenant that the contract rent is
only Rs.50/-. Though the execution of Ext.A1 rent chit was
admitted, the contention was that Ext.A1 was subject to a parole
agreement that the building in question will be substantially
repaired and that rolling shutters will be installed in its front. It
was contended that due to non compliance of the above
conditions governed by the parole agreement, Ext.A1 has not
CRP.No.180/2002 2
taken effect. The Rent Control Court enquired into the matter
and at trial the evidence consisted of PW1, RW1 to RW3, Exts.A1
to A3 and Exts.B1 to B11. The Rent Control Court on
appreciating the evidence came to the conclusion that Ext.A1
rent chit has not been acted upon by the parties. For coming to
such a conclusion, it was noticed by the Rent Control Court that
the building presently under the occupation of the tenant does
not satisfy the description of the building given in Ext.A1.
2. In the appeal preferred by the landlord, the Appellate
Authority made a reappraisal of the entire evidence and in
reversal of the findings of the Rent Control Court, the Appellate
Authority accepted the landlord’s case regarding the contract
rent and also regarding the rent in arrears.
3. In this jurisdiction under Section 20, several grounds
have been raised challenging the judgment of the Appellate
Authority and Sri.Varghese Prem learned counsel for the revision
petitioner has addressed us very strenuously on all the above
grounds. All the submissions of Sri.Varghese Prem were
resisted by Sri. S.V.Balakrishna Iyer, learned senior counsel for
the respondent/landlord.
CRP.No.180/2002 3
4. Sri.Varghese Prem drew our attention to Ext.A1 and
submitted that going by Ext.A1 the building has an area of 106
sq.feet while the evidence on record in the case will show that
the building under the actual enjoyment of the tenant is below
40 sq.feet only. The building, the learned counsel pointed out, is
only a stair case room. Since rent of Rs.150/- was agreed to
be paid by the tenant only for a building which satisfies the
description of the building given in Ext.A1, the landlord is not
justified in insisting that the tenant must pay the above rent for
the present building which has nothing to do with the building
described in Ext.A1. The learned counsel also highlighted before
us Ext.B10 lawyer notice sent by the landlord in the year 1997
and submitted that there is not even a whisper in Ext.B10
regarding the rent in arrears.
5. Sri.S.V.Balakrishna Iyer would remind us of the
contours of the jurisdiction in which we are presently sitting.
According to the learned senior counsel, under the statutory
scheme the final fact finding authority is the Appellate Authority
and when the findings of that Authority are reasonable, there is
no warrant at all for interference in revision.
CRP.No.180/2002 4
6. We have considered the rival submissions addressed at
the Bar in the light of those items of evidence to which our
attention was drawn by the learned counsel. As rightly submitted
by the learned senior counsel for the respondent, under the
statutory scheme the Appellate Authority is the final authority on
facts. Here execution of Ext.A1 is not disputed. The tenant set
up a parole agreement under which the landlord agreed to repair
the building and to install rolling shutters around an area of 106
square feet and the tenant agreed to pay the rent at the
enhanced rate of Rs.150/- per month for such a renovated
building. The learned Appellate Authority has rightly referred to
Section 92 of the Evidence Act and correctly held that when a
parole agreement is set up, the burden will be heavy on the part
of the person who sets up such agreement to plead and prove
such agreement. The pleadings do not contain sufficient
foundation for the parole agreement which is said to have been
entered into. As for the nature of proof given, we notice that it
is only the oral evidence of AW2 and AW3. We find from the
judgment of the Appellate Authority that the Appellate Authority
has analysed the evidenced of AW2 and AW3 throughly and
CRP.No.180/2002 5
given cogent reasons for discarding their evidence. It would
appear as if the circumstance that no allegation was levelled by
the landlord in Ext.B10 lawyer notice regarding the arrears of
rent at a time when going by the allegation of the landlord the
rent was in arrears has some moment. But the reason stated
by the Appellate Authority for not attaching much importance to
that circumstance is that in Ext.B10 the demand was for
enhancement of rent and it was not necessary to mention about
the arrears of rent, if any due at the time. The above reason is
plausible one.
7. Having scanned the judgment of the Appellate Authority,
we are of the view that though the findings are in reversal of the
decision of the Rent Control Court, all those findings are based on
appreciation of the evidence which we feel has been proper.
Almost every argument that was raised on behalf of the tenant
has been considered by the Appellate Authority and rejected
giving sound reasons. In this jurisdiction under Section 20, this
court is not expected ordinarily to substitute our conclusions for
conclusions of fact arrived at by the fact finding authority
especially when they are reasonable. We feel, having regard to
CRP.No.180/2002 6
the contours of our jurisdiction under Section 20, that there is no
irregularity, illegality or impropriety about the findings entered
by the statutory Appellate Authority. We also notice that it is
only a tentative order of eviction under Section 11 (2) (b) which
has been passed against the revision petitioner/tenant. It is
always open to the revision petitioner to make requisite deposit
under Section 11 (2)(c). We also take into account the
circumstance that the building in question is situated in an
important area of the North Paravoor Municipal town and we
have no doubt in our mind that if fair rent of the building is
fixed presently the same will not be less than the contract rent as
alleged by the landlord.
The upshot of the above discussion is that the revision fails
and we dismiss the same. We grant two months time from
today to the revision petitioner to have the order got vacated by
making requisite deposits under Section 11 (2)(c) of the Act.
PIUS C.KURIAKOSE,JUDGE
C.K.ABDUL REHIM , JUDGE
dpk
CRP.No.180/2002 7
PIUS C.KURIAKOSE &
C.K.ABDUL REHIM, JJ.
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C.R.P.No. 180 OF 2002
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O R D E R
5th January,2010