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.
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CRP. Nos. 934 & 979 of 2003
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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