IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 368 of 2010()
1. K.D.ANTONY, S/O.KURUTHUKULANGARA
... Petitioner
Vs
1. K.VENUGOPALAMENON,
... Respondent
For Petitioner :SRI.M.UNNIKRISHNA MENON
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :06/12/2010
O R D E R
PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ.
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R.C.R.No. 368 OF 2010
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Dated this the 6th day of December, 2010
O R D E R
Gopinathan , J.
The tenant/respondent in RCP No.86/2001 on the file
of the Rent Control Court, Thrissur has come up in revision
under Section 20 of the Kerala Lease Buildings (Lease and
Rent Control) Act (hereinafter referred to as ‘the Act’)
assailing the judgment of the Rent Control Appellate
Authority in RCA No.27/2004, whereby the eviction
granted under Section 11 (4)(ii) by the Rent Control Court
was confirmed. The respondent/landlord filed the above
petition seeking an order of eviction under Section 11 (2)
(b) and 11(4)(ii) of the Act. It is submitted by the learned
counsel appearing for the revision petitioner that the rent
RCR.No.368/2010 2
arrears were cleared and eviction order under Section 11
(2)(b) is no more live. That submission is recorded. The
respondent alleged in his petition that the revision petitioner
had made damages and alterations whereby the value and
utility of the petition schedule building were materially and
permanently reduced. The revision petitioner denied the
damages and reduction of utility and value of the petition
schedule building. He contended that because of some
alterations and constructions made by the revision
petitioner, the value and utility of the petition schedule
building were increased.
2. The Rent Control Court enquired the rent control
petition along with RCP No.87/2010. During the course of
the enquiry, on the side of the respondent, PWs 1 to 3
were examined. On the side of the revision petitioner,
himself and another witness were examined as RWs1 and 2.
Exts.A1 to A3 were marked on the side of the respondent.
On the side of the revision petitioner Exts.B1 to B5 series
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were marked. On appraisal of the evidence, the rent
control court arrived at a finding in favour of the
respondent. Consequently, the revision petitioner was
directed to put the respondent in possession of the petition
schedule building under Section 11(4)(ii). The above order
was confirmed in appeal. Now the revision.
3. We heard Sri.K.M.Jamaludheen, learned counsel
appearing for the revision petitioner and perused the
judgment impugned as well as the order of the Rent Control
Court.
4. The learned counsel for the revision petitioner fairly
conceded that the revision petitioner had made some
constructions. According to him, it only enhanced the
value and utility of the petition schedule building and for
that construction, the revision petitioner is not liable to be
evicted under Section 11(4)(ii) as no damage was caused to
the building so as to reduce its value an utility. It was also
argued that the respondent had acquired citizenship in
RCR.No.368/2010 4
Canada and therefore, he is not entitled to get an order of
eviction in respect of the petition schedule building.
Though it was contended by the learned counsel for the
revision petitioner that the respondent had acquired
citizenship in Canada, no evidence was let in to that
effect. The learned counsel would argue that it is admitted
in the witness box that the respondent had been residing in
Canada for the last 30 years on employment, so it could be
presumed that he had acquired citizenship there.
Curiously we notice that the revision petitioner had not
dared to depose that the respondent has citizenship in
Canada. We find no merit in this argument as it is not
supported by pleadings or evidence. To PW1, there is not
even a suggestion that he had acquired Canadian
citizenship. In the above circumstances, we find that the
revision petitioner had not succeeded to establish that the
respondent had Canadian citizenship. Going by the
judgment impugned, we find that the said argument was
RCR.No.368/2010 5
considered by the appellate authority in the light of the
decision reported in Sebastian E.J. and others v.
Dr.A.M.Mathai (ILR 2005 (4) 302). The appellate authority
had found that the respondent is not at all disqualifed for
that reason from seeking order of eviction of the revision
petitioner. It is revealed that the petition schedule
building, which is aged more than 100 years, was obtained
to the respondent by inheritance. The mere fact that the
respondent had gone abroad on employment would not dis
entitle him to hold the title of the property or seeking an
order of eviction of the tenant who was put in possession of
the petition schedule building by the predecessor of the
respondent. It is pertinent to note that the revision
petitioner has no case that the respondent is not entitled to
receive rent. On the other hand, rent is being paid to the
respondent. A person who has the right to receive the rent
has got the right to evict, of course, subject to the
provisions of the Act. Since the revision petitioner continues
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to pay the rent, in fact, he is estopped from raising a
contention that the respondent is not entitled to evict the
revision petitioner. Hence, we reject the contention that the
respondent is not entitled to an order of eviction for the
reason that he is employed in Canada.
5. As regards the constructions made by the revision
petitioner, the appellate authority had elaborately
mentioned in para 11 of the judgment impugned. To
avoid repetition, we quote herein paragraph 11 of the
impugned judgment.
“The respondent himself has filed
affidavit in accordance with the
averments in the petition. At page 2 of
the affidavit, it is alleged by the
respondent that the window on the
western side was replaced with an
aluminium window. The tenant has put
up beam by making holes through the
RCR.No.368/2010 7
wall. They extended the building
towards the front and the front elevation
was constructed without his consent. It
is also stated that he had to approach
the Munsiff’s Court, Thrissur to obtain
injunction against the alteration of the
building by the tenant. The
commissioner visited the property and
submitted a report. It is also alleged in
the affidavit that the tenants in these
two shop rooms colluded and made the
alterations and additions without his
knowledge and consent. He has been
cross examined as PW1. According to
him, the building was about 100 years
old. According to PW1, the distance
between this building and the main road
was 10 feet and now it is reduced to one
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foot because of the front elevation
taken by the tenant. PW1 has deposed
that the tenants have made permanent
structures by using iron poles and iron
rails. According to PW1, major
alterations were done to the building.
They put up walls on the eastern side
without his consent. There was no wall
on the eastern side when it was let out
to the tenant. Similarly shutters were
put up on the eastern side in respect of
the room comprised in RCP No.86/2001.
There was a door on the eastern side.
Now the door is shifted to western side.
Rails were put up at the place of the
door. Similarly, shutter was put up on
the eastern side. A new door was put
up on the western side. A leanto was
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put up by using iron rails and the two
poles. PW1 has denied the suggestion
that the alterations made to the
existing building have only increased the
value. PW1 has denied that except
putting up a leanto on 4 poles, no other
construction was done by the tenant. He
has deposed that the ceiling was
removed. ………”
6. PW2, a retired Superintendent Engineer, also had
given supporting evidence that because of the construction
made by the revision petitioner, the elevation of the building
was changed and the value and utility of the building was
reduced. True, that it was put to PW2 in cross
examination that because of the additional construction,
the value of the building has been increased and he had
given affirmative answer. But, we notice that the petition
schedule building had got 10 feet wide road frontage. The
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revision petitioner had made construction leaving only one
foot from the road there by parking area was reduced.
There is total change of the structure. It is not disputed
that for making alterations or additional constructions
extending to the parking area, the revision petitioner had
not obtained any permission from the local authority. The
result is that the alterations made by the revision petitioner
would canvas even penal action including demolition. The
additions made by the revision petitioner had been reported
in Ext.A3 commission report submitted by PW3 in
O.S.No.840/2001. It would also show that the revision
petitioner had fitted rolling shutters. Since the wall of the
building has no capacity to erect the rolling shutters, the
revision petitioner erected pillars in the building and fitted
the rolling shutters . These constructions and additions
made by the revision petitioner revealed by the evidence
of PWs1 to 3 and Ext.A3 would show that the revision
petitioner had made material alterations and such
RCR.No.368/2010 11
constructions had reduced the value and utility of the
petition schedule building. Even elevation of the building
was changed and the parking area in front of the building
was reduced. These alterations were made without
sanction from the local authority. If the local authority
initiates action, the respondent is liable for penal action
including demolition of the building. In the above
circumstances, overlooking the decisions cited by the
revision petitioner before the appellate authority in
Shanmugam v. Rao Saheeb (1988 (1) KLT 86),
G.Arunachalam v. Thondarperienambi ( A.I.R.1992 SC
977) , Ahammad Kanna v. Muhammed Haneef (1967 KLT
841), Om Prakash v. Ammar Singh (AIR 1987 SC 617),
B.Prabodhini v. P.Rajammal and others (1991 (1) KL J 113),
T.R.Sharma v. State of Haryana ( AIR 1988 SC 2929) and
Viswanathan v. Porichy (1985 KLT 551) the appellate
authority had confirmed eviction. In its judgment the
appellate authority had given reliance to the decision
RCR.No.368/2010 12
reported in Seethalakshmi Ammal v. Nabeesath Beevi (2003
(1) KLT 391) and Francis v. Davis (2005 (3) KLT 815). In
Francis v. Davis, it is held as follows;
“The question to be enquired
under Section 11(4)(ii) is not
whether the value or utility is
increased. Impairment of the
value or utility of the building is to
be considered in the point of the
view of the landlord. If a
stipulation is made in the lease
deed that the tenant shall not make
any additional construction or any
alteration to the tenanted building,
it is binding on the tenant. It is
true, a construction or alteration of
the building which does not attract
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the ingredients of Section 11 (4)(ii)
would not render the tenant liable
to be evicted under the Act, eve if
there is violation of the said term in
the lease deed. At the same
time, in considering whether in the
point of view of the landlord the
offending acts would destroy or
reduce the value or utility of the
building. Stipulations in the lease
deed are relevant. The prohibition
in the lease deed against the
tenant making construction has
certainly relevance while
considering question how the ‘use’
of the building by the tenant was”.
7. Going by the facts of the case and the ratio of the
above decision, we find that the above ratio is squarely
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applicable to the case on hand and we find that the
appellate authority had meticulously considered the
evidence on record in the light of the precedents. The
eviction granted by the Rent Controller and confirmed in
the appeal is in tune with the facts and law. There is no
irregularity, illegality or impropriety committed by the facts
finding authorities below so as to rectify in revision. The
revision is devoid of merits and is liable to be dismissed.
8. The learned counsel for the revision petitioner,
having failed to impress us to interfere with the
judgment impugned, sought for 10 months time to vacate
the premises. It is reported that the revision petitioner had
been running printing press in the petition schedule
building. There is no case for the revision petitioner that no
suitable building is available in the locality. However,
having taken into account that the revision petitioner had
been occupying the petition schedule building for long
time, we find that it would be just and proper to grant time
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till 31/5/2011 to vacate on the following conditions;
i).The revision petitioner shall file
an affidavit within three weeks from
today undertaking to vacate the
premises on or before 30/5/2011
without raising any objection.
ii). The arrears of rent, if any,
shall be discharged within one month
from today and shall continue to pay
occupational charges at the contract
rate of rent. In the event the revision
petitioner files an affidavit and honours
the undertakings, the Rent Control
Court/Execution Court, as the case may
be, shall keep the order of eviction in
abeyance till 30/5/2011.
iii). In the event of failure to
comply with any of the conditions, the
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respondent is at liberty to execute the
order of eviction forthwith.
There will be no order as to costs.
PIUS C.KURIAKOSE,JUDGE
P.S.GOPINATHAN, JUDGE
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