{"id":10628,"date":"2009-01-16T00:00:00","date_gmt":"2009-01-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sasidharan-vs-edappayil-premalatha-on-16-january-2009"},"modified":"2016-05-31T04:09:08","modified_gmt":"2016-05-30T22:39:08","slug":"sasidharan-vs-edappayil-premalatha-on-16-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sasidharan-vs-edappayil-premalatha-on-16-january-2009","title":{"rendered":"Sasidharan vs Edappayil Premalatha on 16 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sasidharan vs Edappayil Premalatha on 16 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 177 of 2004(E)\n\n\n1. SASIDHARAN, SON OF BALAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. EDAPPAYIL PREMALATHA, W\/O. APPURAJ,\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.P.MOHAMMED ASLAM\n\n                For Respondent  :SRI.R.BINDU (SASTHAMANGALAM)\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :16\/01\/2009\n\n O R D E R\n           PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ.\n                       - - - - - - - - - - - - - - - - - - - - -\n                             R.C.R.No.177 OF 2004\n                   - - - - - - - - - - - - - - - - - - - - - - - - - -\n                  Dated this the 24th day of February, 2009\n\n                                     ORDER\n<\/pre>\n
Pius.C.Kuriakose, J.\n<\/p>\n
      The tenant against whom order of eviction is passed concurrently<\/p>\n
by the rent control court and the appellate authority on the ground<\/p>\n
under Sections 11(2)(b) ( arrears of rent) and 11(4)(ii) ( user of<\/p>\n
building in such a manner as to reduce the value and utility of the<\/p>\n
building materially and permanently) is the revision petitioner. It was<\/p>\n
submitted at the Bar that since the order of eviction under Section<\/p>\n
11(2)(b) is virtually a provisional one which is liable to be vacated by<\/p>\n
making deposit under Section 11(2)(c), it is not necessary that the<\/p>\n
above order is interfered with and it will suffice if time is granted for<\/p>\n
making the requisite deposit for filing application under Section<\/p>\n
11(2)(c) . Therefore we in this revision petition are concerned with the<\/p>\n
order of eviction passed under Section 11(4)(ii) only.<\/p>\n
      2.    The case of the landlord under Section 11(4)(ii) was that<\/p>\n
the tenant is running a wood industry in the building and that he is<\/p>\n
using machinery in a careless manner. It was alleged that operation of<\/p>\n
RCR.No.177\/04
\n                                    2<\/span><\/p>\n
electric motors fitted in the building cause constant vibration. It was<\/p>\n
further alleged that respondent uses timber logs inside the building<\/p>\n
without caring for the safety of the building and that because of such<\/p>\n
misuse, the building has suffered permanent and material damage<\/p>\n
resulting in loss of utility and value of the building. It is also alleged<\/p>\n
that the user of the building is in such a manner as to destroy the<\/p>\n
building. The tenant in his objections denied the allegation that value<\/p>\n
and utility of the building has been lost due to the conduct of the<\/p>\n
tenant. It was contended that the building got damaged only due to<\/p>\n
lack of timely repairs and maintenance by the petitioner. It was also<\/p>\n
contended that the tenant started running the industry in 1987 and that<\/p>\n
the landlady and her men trespassed into the building and demolished<\/p>\n
the northern wall and shifted its position. There was a police case and<\/p>\n
the landlady had assured to carry out the repair works. The allegation<\/p>\n
that the machinery and motors used by the respondents do            cause<\/p>\n
extensive vibration as to affect the strength of the building was denied.<\/p>\n
It was alleged that the landlady is running a flour mill in the adjacent<\/p>\n
portion of the building and that she is using a 15 HP motor             in<\/p>\n
thatflour mill. That 15 HP motor is causing more vibrations affecting<\/p>\n
RCR.No.177\/04
\n                                    3<\/span><\/p>\n
the entire building, it was alleged.\n<\/p>\n
      3.     At trial before the rent control court, the evidence on the<\/p>\n
side of the landlady consisted of Exts.A1 to A3 and the oral testimony<\/p>\n
of PW1, the husband of the landlady. On the side of the tenant, the<\/p>\n
same consisted of Exts.B1 to B7 and his own oral testimony as RW1.<\/p>\n
Apart from that there were Commissioner’s report- Ext.C1 and Ext.C2<\/p>\n
and plan – Ext.C3. The rent control court on an evaluation of the<\/p>\n
evidence would find that the allegation of the landlady that the use of<\/p>\n
machines run by the motor in the tenant’s work area has caused damage<\/p>\n
to the building cannot be correct. It was also found that the landlady’s<\/p>\n
allegation that the walls of the building was damaged by hitting with<\/p>\n
big timber logs can only be treated as a weird allegation. It was found<\/p>\n
by the court that the building has become completely dilapidated. But<\/p>\n
according to the court, the same is due to want of routine repairs and<\/p>\n
maintenance as alleged by the tenant. The rent control court noticed<\/p>\n
that Ext.A1 lease deed stipulates that the tenant can conduct repairs<\/p>\n
with the consent of the landlord. The tenant did not have a case that he<\/p>\n
had ventured to do any timely repairs and maintenance as envisaged in<\/p>\n
Ext.A1. The tenant admitted that at the time when the building was let<\/p>\n
RCR.No.177\/04
\n                                    4<\/span><\/p>\n
out to him, the condition of the building was good and sound.<\/p>\n
Therefore it could be found that the tenant had not cared to provide or<\/p>\n
ask for any timely repair and maintenance to the building. Ext.B7<\/p>\n
notice seeking for repairs was sent only after the institution of the rent<\/p>\n
control petition. The circumstances, according to that court will show<\/p>\n
that the tenant did not bother to effect timely repairs or maintenance to<\/p>\n
the building and the tenant is responsible for the present dilapidated<\/p>\n
condition of the building. On that reason, that court passed order of<\/p>\n
eviction under Section 11(4)(ii) against the tenant. The rent control<\/p>\n
appellate authority also virtually concurred with the conclusions of the<\/p>\n
rent control court giving slightly different reasons for confirming the<\/p>\n
order of eviction passed under Section 11(4)(ii).          That authority<\/p>\n
accordingly dismissed the rent control appeal.\n<\/p>\n
      4.    We have heard the submissions of Sri.M.P.M.Aslam,<\/p>\n
learned counsel for the petitioner and Sri.R.Bindu Sasthamangalm,<\/p>\n
learned counsel for the respondent\/landlady. After hearing both sides<\/p>\n
for some time, we suggested to the learned counsel to explore the<\/p>\n
possibility of settlement of the issue between their parties. Though it<\/p>\n
was so explored, it was reported that an out of court settlement is not<\/p>\n
RCR.No.177\/04
\n                                     5<\/span><\/p>\n
possible. As directed by us, both sides have placed before us recently<\/p>\n
taken photographs of the entire building consisting of the petition<\/p>\n
schedule building and the adjacent building wherein the landlady is<\/p>\n
conducting flour mill.\n<\/p>\n
      5.    It was strenuous and extensive submissions which were<\/p>\n
addressed before us both by Sri.M.P.M.Aslam, learned counsel for the<\/p>\n
petitioner and by Sri.R.Bindu Sasthamangalam, learned counsel for the<\/p>\n
respondent\/landlady. Sri.Aslam would assail the findings of the rent<\/p>\n
control court and the appellate authority in the context of ground under<\/p>\n
Section 11(4)(ii) forcefully. Learned counsel submitted that the rent<\/p>\n
control court and the appellate authority failed to remember that in the<\/p>\n
present case the rights and liabilities of the landlord and the tenant are<\/p>\n
governed by the provisions of Act 2 of 1965 and not by the provisions<\/p>\n
of Transfer of Property Act or any other law.           Learned counsel<\/p>\n
submitted that having found that the allegation of the landlady that<\/p>\n
damages have been caused to the building on account of the careless<\/p>\n
handling of timber logs inside the building or on account of the<\/p>\n
vibration caused by the motors installed inside the building is not<\/p>\n
correct, the courts below were not at all justified in venturing an<\/p>\n
RCR.No.177\/04
\n                                    6<\/span><\/p>\n
investigation whether the tenant is guilty of making timely repairs and<\/p>\n
maintenance to the building. Counsel submitted that the parties were<\/p>\n
never at issue on the question, who was responsible for carrying out the<\/p>\n
timely repairs and maintenance to the building and whether the present<\/p>\n
condition of the building is on account of the non-doing of such timely<\/p>\n
repairs and maintenance. Counsel submitted that rent control appellate<\/p>\n
authority was not justified in relying on the judgment of this court in<\/p>\n
Siva Prabhu v. Abubacker Keyi ( 1972 K.L.R. 170) which was ofcourse<\/p>\n
to the effect that merely because the purpose of the lease was such as<\/p>\n
likely to cause damages to the building the tenants will not be allowed<\/p>\n
to contend that he will not be held responsible for the damages caused<\/p>\n
to the building.   Sri.Aslam would submit that the injury which is<\/p>\n
complained of by the landlady is the injury of destruction of the<\/p>\n
premises resulting from the use of the building in a proper manner.<\/p>\n
That being so, the tenant cannot be held liable for the destruction<\/p>\n
caused to the premises.     The fundamental rule that relief cannot be<\/p>\n
granted in a case which is not founded on pleadings was missed by the<\/p>\n
rent control appellate authority and this has resulted in serious<\/p>\n
prejudice to the revision petitioner\/tenant. In this context Sri.Aslam<\/p>\n
RCR.No.177\/04
\n                                    7<\/span><\/p>\n
would place strong reliance on the judgment of Sri.S.Padmanabhan, J.<\/p>\n
in K.H.Krishna Iyer & others v. Parvathy Ammal and others ( 1988<\/p>\n
(2) KLJ 156).\n<\/p>\n
      6.     The submission of Sri.Aslam were stiffly resisted by<\/p>\n
Sri.R.Bindu Sasthamangalam. Sri.Bindu would draw our attention to<\/p>\n
the evidence in this case and submit that it was transparently clear that<\/p>\n
the value and utility of the building has been reduced materially and<\/p>\n
permanently. Ever since the building was let out to the revision<\/p>\n
petitioner, he alone was in possession and enjoyment of the same.<\/p>\n
Naturally the revision petitioner is to be held responsible for the<\/p>\n
present condition of the building which when compared to the<\/p>\n
condition of the adjacent building wherein the landlady is conducting<\/p>\n
flour mill is deplorable.\n<\/p>\n
      7.     Sri.Bindu Sasthamangalam drew our attention extensively<\/p>\n
to the deposition given by the landlady and the tenant and submitted<\/p>\n
that the defence of the tenant to the allegation of the landlady that the<\/p>\n
walls of the building have become extensively damaged, was that it<\/p>\n
was on account of landlady’s husband trespassing into petition schedule<\/p>\n
building and removal of the northern wall of that room, thereby<\/p>\n
RCR.No.177\/04
\n                                     8<\/span><\/p>\n
reducing the width of that room. The said defence had fallen to the<\/p>\n
ground. According to Sri.Bindu the allegation stands disproved by the<\/p>\n
Commissioner’s report and also by the circumstance that such a<\/p>\n
complaint is raised years after the alleged incident and after the fresh<\/p>\n
lease deed Ext.A1 had been executed. Sri.Bindu conceded that it is not<\/p>\n
the prominent allegation of the landlady which is now accepted by the<\/p>\n
rent control court and the appellate authority. But according to him,<\/p>\n
the evidence will certainly justify the finding that the present condition<\/p>\n
of the building is on account of the negligent handling of timber locks<\/p>\n
inside the building by the tenant which was also one of the allegations<\/p>\n
of the landlord in the rent control petition.\n<\/p>\n
      8.    We have very anxiously considered the submissions<\/p>\n
addressed at the Bar.      We have gone through the entirety of the<\/p>\n
evidence in the case since we thought the same necessary in view of the<\/p>\n
apparent conflict between the findings of the court and the pleadings of<\/p>\n
the landlord. We have scanned the various photographs placed before<\/p>\n
us by either sides.\n<\/p>\n
      9.    We are convinced that the present condition of the building<\/p>\n
is such that it can be stated without any hesitation that the value and<\/p>\n
RCR.No.177\/04
\n                                       9<\/span><\/p>\n
utility of the building has become reduced over the years materially<\/p>\n
and even permanently. We use the word “permanently” since we feel<\/p>\n
that it will be difficult to restore the value and utility of this building by<\/p>\n
doing ordinary repairs.        But deterioration of the condition of the<\/p>\n
building to the extent of reduction in value and utility materially and<\/p>\n
permanently by itself will not constitute ground for eviction under<\/p>\n
Section 11(4)(i). The statutory requirement is that permanent reduction<\/p>\n
in the value and utility of the building is attributable to the user of the<\/p>\n
building by the tenant. The burden to allege and prove that the value<\/p>\n
and utility of the tenanted building has become reduced materially and<\/p>\n
permanently on account of user of the building by the tenant is on the<\/p>\n
landlord. The specific allegation of the landlord is that the present<\/p>\n
condition of the building is attributable to the constant vibrations<\/p>\n
caused by the electric motors which are functioning in the building and<\/p>\n
also to the negligent handling of heavy timber logs by the tenant inside<\/p>\n
the building. As we read through the orders of the rent control court<\/p>\n
and the appellate authority, what we find is that the finding of those<\/p>\n
authorities is to the effect that the present condition of the building is<\/p>\n
attributable to the failure on the part of the tenant to discharge his<\/p>\n
RCR.No.177\/04
\n                                     10<\/span><\/p>\n
obligation under Ext.A1 lease deed to keep the building under proper<\/p>\n
maintenance and repair. Ext.A1 unlike the previous lease deed Ext.B1<\/p>\n
contains a provision to the effect that the tenant is entitled to carry out<\/p>\n
the necessary repairs to the building with the consent of the landlord.<\/p>\n
As pointed out by the rent control appellate authority, no material is<\/p>\n
produced by the tenant to show that the tenant made any endeavour<\/p>\n
either to carry out repairs or to seek the consent of the landlady. But as<\/p>\n
rightly submitted by Sri.Aslam the parties were not at issue on this<\/p>\n
point at all. The parties were at issue only as to whether the present<\/p>\n
condition of the building is attributable to the working of the motors<\/p>\n
and to the negligent handling of the timber logs inside the building.<\/p>\n
Sri.Bindu is certainly right in submitting that rules of pleadings are not<\/p>\n
to be adhered to in rent control proceedings so meticulously as in<\/p>\n
regular civil proceedings. But in rent control proceedings decision is to<\/p>\n
be taken in accordance with principles of justice, equity and good<\/p>\n
conscience ( see Rule 11 (8) of the statutory rules). It will not be just<\/p>\n
or equitable to decide an RCP accepting a case which has no roots at<\/p>\n
all in pleadings. We are of the view that in this case the tenant did not<\/p>\n
have any opportunity to defend the allegation that the present condition<\/p>\n
RCR.No.177\/04
\n                                    11<\/span><\/p>\n
of the building is attributable to his not ensuring the periodical repairs<\/p>\n
and maintenance of the building. In other words, we are in agreement<\/p>\n
with Sri.Aslam’s submission that prejudice has been caused to the<\/p>\n
tenant due to the absence of pleadings by the landlady regarding the<\/p>\n
case which is now accepted and made basis for decision by the rent<\/p>\n
control court and the appellate authority.\n<\/p>\n
      10.   The result of the above discussion therefore is as follows:<\/p>\n
      The orders of the rent control court and the appellate authority<\/p>\n
are set aside. The rent control petition is remanded to the rent control<\/p>\n
court, Kozhikode. That court will permit the respondent\/landlady to<\/p>\n
amend her pleadings and if pleadings are so amended, the revision<\/p>\n
petitioner will be permitted to file additional statement of objections.<\/p>\n
RCP will be enquired into further by the rent control court.         The<\/p>\n
evidence already on record will form part of the evidence. The rent<\/p>\n
control court will take fresh decision on the basis of the evidence<\/p>\n
already on record and the evidence which comes to be adduced further.<\/p>\n
Since the RCP is of the year 1999, the learned Munsiff will make every<\/p>\n
endeavour to pass revised orders as directed above at the earliest and at<\/p>\n
any rate by 15\/06\/2009. The petitioner will have one month’s time to<\/p>\n
RCR.No.177\/04
\n                                     12<\/span><\/p>\n
apply under Section 11(2)(c) for cancellation of the order under Section<\/p>\n
11(2)(b). It is needless to direct that the petitioner\/tenant will be bound<\/p>\n
to pay the rent which falls due during the pendency of the RCP<\/p>\n
promptly and regularly.\n<\/p>\n
     The revision petition is allowed as above.               But in the<\/p>\n
circumstances, parties will suffer their costs. The photographs placed<\/p>\n
by the parties will be returned to the counsel.\n<\/p>\n<\/p>\n
                                        PIUS.C.KURIAKOSE, JUDGE<\/p>\n
                                          M.C.HARI RANI, JUDGE<\/p>\n
sv.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sasidharan vs Edappayil Premalatha on 16 January, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-10628","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSasidharan vs Edappayil Premalatha on 16 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sasidharan-vs-edappayil-premalatha-on-16-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sasidharan vs Edappayil Premalatha on 16 January, 2009 - 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