IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 177 of 2004(E)
1. SASIDHARAN, SON OF BALAN,
... Petitioner
Vs
1. EDAPPAYIL PREMALATHA, W/O. APPURAJ,
... Respondent
For Petitioner :SRI.M.P.MOHAMMED ASLAM
For Respondent :SRI.R.BINDU (SASTHAMANGALAM)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :16/01/2009
O R D E R
PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ.
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R.C.R.No.177 OF 2004
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Dated this the 24th day of February, 2009
ORDER
Pius.C.Kuriakose, J.
The tenant against whom order of eviction is passed concurrently
by the rent control court and the appellate authority on the ground
under Sections 11(2)(b) ( arrears of rent) and 11(4)(ii) ( user of
building in such a manner as to reduce the value and utility of the
building materially and permanently) is the revision petitioner. It was
submitted at the Bar that since the order of eviction under Section
11(2)(b) is virtually a provisional one which is liable to be vacated by
making deposit under Section 11(2)(c), it is not necessary that the
above order is interfered with and it will suffice if time is granted for
making the requisite deposit for filing application under Section
11(2)(c) . Therefore we in this revision petition are concerned with the
order of eviction passed under Section 11(4)(ii) only.
2. The case of the landlord under Section 11(4)(ii) was that
the tenant is running a wood industry in the building and that he is
using machinery in a careless manner. It was alleged that operation of
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electric motors fitted in the building cause constant vibration. It was
further alleged that respondent uses timber logs inside the building
without caring for the safety of the building and that because of such
misuse, the building has suffered permanent and material damage
resulting in loss of utility and value of the building. It is also alleged
that the user of the building is in such a manner as to destroy the
building. The tenant in his objections denied the allegation that value
and utility of the building has been lost due to the conduct of the
tenant. It was contended that the building got damaged only due to
lack of timely repairs and maintenance by the petitioner. It was also
contended that the tenant started running the industry in 1987 and that
the landlady and her men trespassed into the building and demolished
the northern wall and shifted its position. There was a police case and
the landlady had assured to carry out the repair works. The allegation
that the machinery and motors used by the respondents do cause
extensive vibration as to affect the strength of the building was denied.
It was alleged that the landlady is running a flour mill in the adjacent
portion of the building and that she is using a 15 HP motor in
thatflour mill. That 15 HP motor is causing more vibrations affecting
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the entire building, it was alleged.
3. At trial before the rent control court, the evidence on the
side of the landlady consisted of Exts.A1 to A3 and the oral testimony
of PW1, the husband of the landlady. On the side of the tenant, the
same consisted of Exts.B1 to B7 and his own oral testimony as RW1.
Apart from that there were Commissioner’s report- Ext.C1 and Ext.C2
and plan – Ext.C3. The rent control court on an evaluation of the
evidence would find that the allegation of the landlady that the use of
machines run by the motor in the tenant’s work area has caused damage
to the building cannot be correct. It was also found that the landlady’s
allegation that the walls of the building was damaged by hitting with
big timber logs can only be treated as a weird allegation. It was found
by the court that the building has become completely dilapidated. But
according to the court, the same is due to want of routine repairs and
maintenance as alleged by the tenant. The rent control court noticed
that Ext.A1 lease deed stipulates that the tenant can conduct repairs
with the consent of the landlord. The tenant did not have a case that he
had ventured to do any timely repairs and maintenance as envisaged in
Ext.A1. The tenant admitted that at the time when the building was let
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out to him, the condition of the building was good and sound.
Therefore it could be found that the tenant had not cared to provide or
ask for any timely repair and maintenance to the building. Ext.B7
notice seeking for repairs was sent only after the institution of the rent
control petition. The circumstances, according to that court will show
that the tenant did not bother to effect timely repairs or maintenance to
the building and the tenant is responsible for the present dilapidated
condition of the building. On that reason, that court passed order of
eviction under Section 11(4)(ii) against the tenant. The rent control
appellate authority also virtually concurred with the conclusions of the
rent control court giving slightly different reasons for confirming the
order of eviction passed under Section 11(4)(ii). That authority
accordingly dismissed the rent control appeal.
4. We have heard the submissions of Sri.M.P.M.Aslam,
learned counsel for the petitioner and Sri.R.Bindu Sasthamangalm,
learned counsel for the respondent/landlady. After hearing both sides
for some time, we suggested to the learned counsel to explore the
possibility of settlement of the issue between their parties. Though it
was so explored, it was reported that an out of court settlement is not
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possible. As directed by us, both sides have placed before us recently
taken photographs of the entire building consisting of the petition
schedule building and the adjacent building wherein the landlady is
conducting flour mill.
5. It was strenuous and extensive submissions which were
addressed before us both by Sri.M.P.M.Aslam, learned counsel for the
petitioner and by Sri.R.Bindu Sasthamangalam, learned counsel for the
respondent/landlady. Sri.Aslam would assail the findings of the rent
control court and the appellate authority in the context of ground under
Section 11(4)(ii) forcefully. Learned counsel submitted that the rent
control court and the appellate authority failed to remember that in the
present case the rights and liabilities of the landlord and the tenant are
governed by the provisions of Act 2 of 1965 and not by the provisions
of Transfer of Property Act or any other law. Learned counsel
submitted that having found that the allegation of the landlady that
damages have been caused to the building on account of the careless
handling of timber logs inside the building or on account of the
vibration caused by the motors installed inside the building is not
correct, the courts below were not at all justified in venturing an
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investigation whether the tenant is guilty of making timely repairs and
maintenance to the building. Counsel submitted that the parties were
never at issue on the question, who was responsible for carrying out the
timely repairs and maintenance to the building and whether the present
condition of the building is on account of the non-doing of such timely
repairs and maintenance. Counsel submitted that rent control appellate
authority was not justified in relying on the judgment of this court in
Siva Prabhu v. Abubacker Keyi ( 1972 K.L.R. 170) which was ofcourse
to the effect that merely because the purpose of the lease was such as
likely to cause damages to the building the tenants will not be allowed
to contend that he will not be held responsible for the damages caused
to the building. Sri.Aslam would submit that the injury which is
complained of by the landlady is the injury of destruction of the
premises resulting from the use of the building in a proper manner.
That being so, the tenant cannot be held liable for the destruction
caused to the premises. The fundamental rule that relief cannot be
granted in a case which is not founded on pleadings was missed by the
rent control appellate authority and this has resulted in serious
prejudice to the revision petitioner/tenant. In this context Sri.Aslam
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would place strong reliance on the judgment of Sri.S.Padmanabhan, J.
in K.H.Krishna Iyer & others v. Parvathy Ammal and others ( 1988
(2) KLJ 156).
6. The submission of Sri.Aslam were stiffly resisted by
Sri.R.Bindu Sasthamangalam. Sri.Bindu would draw our attention to
the evidence in this case and submit that it was transparently clear that
the value and utility of the building has been reduced materially and
permanently. Ever since the building was let out to the revision
petitioner, he alone was in possession and enjoyment of the same.
Naturally the revision petitioner is to be held responsible for the
present condition of the building which when compared to the
condition of the adjacent building wherein the landlady is conducting
flour mill is deplorable.
7. Sri.Bindu Sasthamangalam drew our attention extensively
to the deposition given by the landlady and the tenant and submitted
that the defence of the tenant to the allegation of the landlady that the
walls of the building have become extensively damaged, was that it
was on account of landlady’s husband trespassing into petition schedule
building and removal of the northern wall of that room, thereby
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reducing the width of that room. The said defence had fallen to the
ground. According to Sri.Bindu the allegation stands disproved by the
Commissioner’s report and also by the circumstance that such a
complaint is raised years after the alleged incident and after the fresh
lease deed Ext.A1 had been executed. Sri.Bindu conceded that it is not
the prominent allegation of the landlady which is now accepted by the
rent control court and the appellate authority. But according to him,
the evidence will certainly justify the finding that the present condition
of the building is on account of the negligent handling of timber locks
inside the building by the tenant which was also one of the allegations
of the landlord in the rent control petition.
8. We have very anxiously considered the submissions
addressed at the Bar. We have gone through the entirety of the
evidence in the case since we thought the same necessary in view of the
apparent conflict between the findings of the court and the pleadings of
the landlord. We have scanned the various photographs placed before
us by either sides.
9. We are convinced that the present condition of the building
is such that it can be stated without any hesitation that the value and
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utility of the building has become reduced over the years materially
and even permanently. We use the word “permanently” since we feel
that it will be difficult to restore the value and utility of this building by
doing ordinary repairs. But deterioration of the condition of the
building to the extent of reduction in value and utility materially and
permanently by itself will not constitute ground for eviction under
Section 11(4)(i). The statutory requirement is that permanent reduction
in the value and utility of the building is attributable to the user of the
building by the tenant. The burden to allege and prove that the value
and utility of the tenanted building has become reduced materially and
permanently on account of user of the building by the tenant is on the
landlord. The specific allegation of the landlord is that the present
condition of the building is attributable to the constant vibrations
caused by the electric motors which are functioning in the building and
also to the negligent handling of heavy timber logs by the tenant inside
the building. As we read through the orders of the rent control court
and the appellate authority, what we find is that the finding of those
authorities is to the effect that the present condition of the building is
attributable to the failure on the part of the tenant to discharge his
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obligation under Ext.A1 lease deed to keep the building under proper
maintenance and repair. Ext.A1 unlike the previous lease deed Ext.B1
contains a provision to the effect that the tenant is entitled to carry out
the necessary repairs to the building with the consent of the landlord.
As pointed out by the rent control appellate authority, no material is
produced by the tenant to show that the tenant made any endeavour
either to carry out repairs or to seek the consent of the landlady. But as
rightly submitted by Sri.Aslam the parties were not at issue on this
point at all. The parties were at issue only as to whether the present
condition of the building is attributable to the working of the motors
and to the negligent handling of the timber logs inside the building.
Sri.Bindu is certainly right in submitting that rules of pleadings are not
to be adhered to in rent control proceedings so meticulously as in
regular civil proceedings. But in rent control proceedings decision is to
be taken in accordance with principles of justice, equity and good
conscience ( see Rule 11 (8) of the statutory rules). It will not be just
or equitable to decide an RCP accepting a case which has no roots at
all in pleadings. We are of the view that in this case the tenant did not
have any opportunity to defend the allegation that the present condition
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of the building is attributable to his not ensuring the periodical repairs
and maintenance of the building. In other words, we are in agreement
with Sri.Aslam’s submission that prejudice has been caused to the
tenant due to the absence of pleadings by the landlady regarding the
case which is now accepted and made basis for decision by the rent
control court and the appellate authority.
10. The result of the above discussion therefore is as follows:
The orders of the rent control court and the appellate authority
are set aside. The rent control petition is remanded to the rent control
court, Kozhikode. That court will permit the respondent/landlady to
amend her pleadings and if pleadings are so amended, the revision
petitioner will be permitted to file additional statement of objections.
RCP will be enquired into further by the rent control court. The
evidence already on record will form part of the evidence. The rent
control court will take fresh decision on the basis of the evidence
already on record and the evidence which comes to be adduced further.
Since the RCP is of the year 1999, the learned Munsiff will make every
endeavour to pass revised orders as directed above at the earliest and at
any rate by 15/06/2009. The petitioner will have one month’s time to
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apply under Section 11(2)(c) for cancellation of the order under Section
11(2)(b). It is needless to direct that the petitioner/tenant will be bound
to pay the rent which falls due during the pendency of the RCP
promptly and regularly.
The revision petition is allowed as above. But in the
circumstances, parties will suffer their costs. The photographs placed
by the parties will be returned to the counsel.
PIUS.C.KURIAKOSE, JUDGE
M.C.HARI RANI, JUDGE
sv.