IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 247 of 2008()
1. THAYYIL MOHAMMAD HAJI
... Petitioner
2. KOTTATHARA VALIYAKATH ABDUL AZEEZ
3. PUNNASSERI HYDER HAJI
Vs
1. ABDUL MATEEN, AGED 50 YEARS
... Respondent
2. SEEMA SUHAIL, AGED 48 YEARS
3. BEEBI FATHIMA ISMAIL,AGED 69 YEARS
4. MUHAMMAD SUHAIL ISMAIL, AGED 57 YEARS
5. SAMIHA, AGED 47 YEARS
6. SAMEENA, AGED 46 YEARS
7. ABDUL MAJEED, AGED 49 YEARS
For Petitioner :SRI.V.SREENATH
For Respondent :SRI.AVM.SALAHUDIN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :08/06/2009
O R D E R
PIUS C. KURIAKOSE &
P. Q. BARKATH ALI, JJ.
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R. C. R. No.247 of 2008
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Dated this the 8th day of June, 2009
ORDER
Pius C. Kuriakose, J
Under challenge in this revision initiated at the
instance of the tenants is an order of eviction passed
under Section 11(2)(b) concurrently by the Rent
Control Court and the Appellate Authority. Parties are
referred to as landlord and tenant respectively.
2. The allegation of the landlord as stated in the
Rent Control Petition was that rent at the rate of
Rs.5,250/- per mensm is in arrears with effect from
01/01/2000. The tenant who is conducting a lodging
house in the petition schedule building did not dispute
the contract rent. The contention prominently raised
was that he has expended a total amount of
R. C. R. No.247 of 2008 -2-
Rs.3,92,793/- towards repairs of this building. Ext.B4
agreement executed between the parties (the landlord
being represented by his duly constituted power of
attorney holder) was relied on in support of the above
contention. Apart from Ext.B4, the tenant produced
vouchers Exts.B5 to B108 to show that he had
expended amounts towards repairing the building.
Initially, the landlord’s case in answer to Exts.B5 to
B108 was that Ext.B4 is not binding on him inasmuch
as he has not authorised his power of attorney holder
to enter into Ext.B4 on his behalf. He also denied the
tenants’ contention that amounts were expended
against Exts.B5 to B108. The Rent Control Court on
evaluating the evidence would repel the landlord’s
case that Ext.B4 is not binding on him. It was found
R. C. R. No.247 of 2008 -3-
that Ext.B4 was executed on behalf of the landlord by
his duly constituted power of attorney holder. Never-
the-less, the court below did not become inclined to
accept the tenants’ case that amounts were expended
under Exts.B5 to B108 pursuant to Ext.B4. The Rent
Control Court found that there was no evidence to
show that the landlord had been requested by the
tenant to carry out the repairs. The Rent Control Court
also found that the question whether the tenant had
expended so much of amounts against Exts.B5 and
B108 is capable of being proved by producing the
account books which were being maintained by the
tenant who was running a lodging house. The
Appellate Authority also would substantially endorse
the findings of the Rent Control Court in this regard
R. C. R. No.247 of 2008 -4-
and dismiss the appeal preferred by the tenant.
3. We have heard the submissions of
Sri.V.Sreenath, learned counsel for the revision
petitioners and those of Sri.A.V.M.Salahudin, the
learned counsel for the landlord.
4. Sri.V.Sreenath would assail the findings of the
Rent Control Court and the Appellate Authority very
forcefully. He submitted that the Rent Control Court
having found that Ext.B4 was an agreement duly
entered into on behalf of the landlord was not justified
in denying the tenants’ case of having expended
amounts against Exts.B5 to B108. The genuineness of
Exts.B5 to B108 was beyond question, according to
Sri.V.Sreenath, the learned counsel for the tenants.
5. Sri.A.V.M.Salahudin, the learned counsel for
R. C. R. No.247 of 2008 -5-
the landlord would submit that this Court sitting in
revision under Section 20 of Act 2 of 1965 is not
expected to reappraise the evidence and substitute the
conclusions of fact already entered into by the fact
finding authorities under the statutes for its own
finding. According to him, the building in question, has
got as many as 34 rooms and the tenant is making a
fortune out of the building without caring to pay even
the paltry monthly rent agreed upon during the past
nine years.
6. We have anxiously considered the rival
submissions. We do not find reason to disapprove the
findings of the Rent Control Court and the Appellate
Authority that Ext.B4 was duly entered into on behalf
of the landlord also by his duly constituted power of
R. C. R. No.247 of 2008 -6-
attorney holder. But at the same time, we find that
Ext.B4 was entered into between the parties at a time
when the statutory authority, the Accommodation
Controller was seizing of an application submitted by
the tenants under Section 17 of Act 2 of 1965. The
reason mentioned in Ext.B4 for entering into Ext.B4 is
the long pendency of the proceedings before the
Accommodation Controller and one of the important
provisions in Ext.B4 is that the Accommodation
Controller will be informed of Ext.B4 by both the
parties by producing the same before the
Accommodation Controller and by filing a joint
statement. Admittedly the Accommodation Controller
was never informed about Ext.B4 and the fiat of the
Accommodation Controller, the statutory authority has
R. C. R. No.247 of 2008 -7-
not been obtained by the parties to Ext.B4.
7. Leaving that alone, the important question to
be considered is whether the contention of the
petitioner that he has expended Rs.3,92,793/-
towards repairing the building pursuant to Ext.B4 is
true. Sri.V.Sreenath, the learned counsel for the
revision petitioners would fairly concede before us that
the total amount expended by the tenants-petitioners
pursuant to Ext.B4 is only Rs.1,91,000/- and not
Rs.3,92,793/- as claimed by the revision petitioners.
He also agreed that on the terms of Ext.B4, it is the
obligation of the tenant to bear 50% of the amount
amounting to Rs.95,500/-. Even if the petitioners’ case
that they have expended Rs.95,500/- towards
repairing the building pursuant to Ext.B4 is accepted,
R. C. R. No.247 of 2008 -8-
then also it is evident that as on the date of filing of
the Rent Control Petition, rent was in arrears, which
means an order of eviction under Section 11(2)(b) was
inevitable. Now the Rent Control Court and the
Appellate Authority have concurrently found that it is
difficult to accept the case of the petitioners of having
expended amounts on the basis of Exts.B5 to B108
pursuant to Ext.B4. The reasons stated by the
authorities is that Exts.B5 to B108 are mere vouchers
and if those vouchers are genuine vouchers then it will
definitely find a place in the account books maintained
by the tenants or in the report by the Advocate
Commissioner. The above reason, according to us, is
reasonable. We, sitting in revisional jurisdiction under
Section 20 of Act 2 of 1965, are not expected to
R. C. R. No.247 of 2008 -9-
interfere with the findings entered into concurrently by
both the courts below when they are reasonable and
founded on evidence.
8. Having gone through the contours of this
Court’s jurisdiction under Section 20 of Act 2 of 1965,
we do not find any warrant for interference. We
hereby confirm the order of eviction passed under
Section 11(2)(b) of Act 2 of 1965 by the courts below.
9. It is finally submitted by Sri.V.Sreenath, the
learned counsel for the petitioners that the entire
arrears of rent due in respect of petition schedule
building is in deposit before the Rent Control Court.
The counsel requested that the above deposit be
noticed and the order of eviction under Section 11(2)
(b) be set aside under Section 11(2)(c).
R. C. R. No.247 of 2008 -10-
10. Sri.A.V.M.Salahudin, the learned counsel for
the respondents/landlord would submit that the
amount deposited will not cover the entire amount
actually due. We are of the view that the sufficiency of
the amount under deposit is a matter to be decided by
the Rent Control Court in a proceeding under Section
11(2)(c) to be initiated by the revision
petitioner/tenant. Therefore, even as we are
dismissing the revision confirming the order of eviction
passed by the Rent Control Court and the Appellate
Authority, we permit the revision petitioner to file a
petitioner under Section 11(2)(c) before the Rent
Control Court. The Rent Control Court will in that
proceeding pass appropriate orders deciding the
correct amount to be deposited/paid by the revision
R. C. R. No.247 of 2008 -11-
petitioners/tenants to have the order of eviction set
aside under Section 11(2)(c).
11. This RCR is dismissed, but in the
circumstances, without any order as to costs. It is
needless to mention that the amount under deposit is
due to the landlord who is entitled to withdraw the
same. If for any reason the Rent Control Court finds
that the amounts under deposit are not sufficient that
court will grant at least two months’ time to the
revision petitioner to deposit the deficit.
PIUS C. KURIAKOSE
JUDGE
P. Q. BARKATH ALI
JUDGE
kns/-