{"id":258445,"date":"2009-11-24T00:00:00","date_gmt":"2009-11-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thavakkara-koolath-valappil-vs-chalakkadan-kodichi-nalini-on-24-november-2009"},"modified":"2014-08-23T23:18:27","modified_gmt":"2014-08-23T17:48:27","slug":"thavakkara-koolath-valappil-vs-chalakkadan-kodichi-nalini-on-24-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thavakkara-koolath-valappil-vs-chalakkadan-kodichi-nalini-on-24-november-2009","title":{"rendered":"Thavakkara Koolath Valappil … vs Chalakkadan Kodichi Nalini on 24 November, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thavakkara Koolath Valappil … vs Chalakkadan Kodichi Nalini on 24 November, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 342 of 2006()\n\n\n1. THAVAKKARA KOOLATH VALAPPIL SREEDHARAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. CHALAKKADAN KODICHI NALINI,\n                       ...       Respondent\n\n2. RAGHAVAN, S\/O.MADHAVI,\n\n3. PURUSHOTHAMAN, S\/O.MADHAVI,\n\n4. SREEDHARAN, S\/O.MADHAVI,\n\n                For Petitioner  :SRI.M.K.SUMOD\n\n                For Respondent  :SRI.K.V.PAVITHRAN\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :24\/11\/2009\n\n O R D E R\n      PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.\n      --------------------------------------------------------\n                     RCP. No. 342 of 2006\n            -------------------------------------------\n         Dated this the 24th day of November, 2009\n\n                            O R D E R\n<\/pre>\n
Pius C. Kuriakose, J.\n<\/p>\n
     A tenant who was evicted from the subject building in<\/p>\n
execution of an order of eviction passed by the authorities<\/p>\n
under the Rent Control Act and confirmed by this Court and<\/p>\n
the Supreme Court on the ground of own occupation under<\/p>\n
sub-section (3) of Section 11 is in revision. He filed fresh<\/p>\n
rent control petition invoking sub-section (12) of Section 11<\/p>\n
alleging that the landlord had not occupied the building for<\/p>\n
the need projected in the eviction petition.            The need<\/p>\n
alleged in the eviction petition was that possession of the<\/p>\n
building is needed bona fide, so that the second respondent<\/p>\n
in the present revision who was the second petitioner in the<\/p>\n
eviction petition can occupy the building for the conduct of<\/p>\n
a tutorial college. The revision petitioner alleges that after<\/p>\n
getting vacant possession, the second respondent never<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 2 –\n<\/p>\n
\noccupied the building at all.       On the    other hand, the<\/p>\n
building was let out to certain gypsies. According to the<\/p>\n
revision petitioner the landlord never had any        genuine<\/p>\n
intention of conducting tutorial college in the subject<\/p>\n
building. The non-occupation of the subject building after<\/p>\n
getting possession was without any reasonable cause.<\/p>\n
Hence the petition under sub-section (12) of Section 11<\/p>\n
seeking re-delivery of the petition schedule building to the<\/p>\n
revision petitioner was filed by the evicted tenant.<\/p>\n
     2. The petition was resisted by the respondents. They<\/p>\n
contended that as soon as the building was got vacated the<\/p>\n
respondents started the tutorial college. But the condition<\/p>\n
of the building was highly dilapidated due to negligent user<\/p>\n
by the revision petitioner. In fact, at the time when delivery<\/p>\n
was taken, only a small portion of the building was<\/p>\n
habitable. Therefore parents of students were not prepared<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 3 –\n<\/p>\n
\nto send their children for the classes conducted in the<\/p>\n
building. Second respondent therefore became compelled<\/p>\n
to stop the tutorial college. The condition of the building<\/p>\n
was   such      that reconstruction   was   found  absolutely<\/p>\n
necessary. Therefore the respondents started demolishing<\/p>\n
the building for the purpose of starting reconstruction.<\/p>\n
Except two rooms, all other portions of the building were<\/p>\n
demolished. At that juncture, the revision petitioner filed a<\/p>\n
suit for injunction and got an interim order of injunction<\/p>\n
restraining the demolition and reconstruction. Thus it was<\/p>\n
contended that the non-occupation of the building after<\/p>\n
obtaining eviction was due to reasonable and genuine<\/p>\n
causes.     The existing structure is of temporary nature and<\/p>\n
hence the revision petitioner is not entitled to get order of<\/p>\n
re-possession.\n<\/p>\n
     3. The petition was enquired into by the Rent Control<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                                – 4 –\n<\/p>\n
\nCourt. Evidence consisted of the testimonies of PW1 and<\/p>\n
RW1 and Ext. A1. A commission was taken out and the<\/p>\n
commissioner’s report was marked as Ext.C1 and the plan<\/p>\n
submitted by him was marked as Ext.C2. The Rent Control<\/p>\n
Court on evaluating the evidence found that the respondent<\/p>\n
landlords failed to occupy the building within one month of<\/p>\n
the date of      eviction  and that said non-occupation was<\/p>\n
without reasonable cause. The Rent Control Court allowed<\/p>\n
the petition. The landlords preferred appeal to the Appellate<\/p>\n
Authority.      The Appellate Authority under the judgment<\/p>\n
which is impugned in this revision allowed the appeal and<\/p>\n
dismissed the petition under sub-section (12) of Section 11.<\/p>\n
     4. We heard Sri.Kauser Edappagath, learned counsel<\/p>\n
for   the    revision   petitioner   and those  of  Advocate<\/p>\n
Sri.V.Ramkumar         Nambiar      for R1    to  R3     and<\/p>\n
Sri.K.V.Pavithran, Advocate for R4 and R5. Sri.Kauser<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 5 –\n<\/p>\n
\nargued that it was without adverting to material pieces of<\/p>\n
evidence and by appreciating the evidence in an indifferent<\/p>\n
manner that the Appellate Authority interfered with the<\/p>\n
decision taken by the Rent Control Court. Learned counsel<\/p>\n
submitted that the landlord failed to occupy the petition<\/p>\n
schedule building within one month without any reasonable<\/p>\n
cause.     Counsel pointed out that it was stated by RW1<\/p>\n
landlady for whose need of conducting tutorial classes the<\/p>\n
building was got evicted that there are documents with her<\/p>\n
to prove that she had conducted tutorial classes from 10-7-<\/p>\n
2002.     But no such documents were produced. Therefore<\/p>\n
what the Appellate Authority should have done was to draw<\/p>\n
adverse inference against the landlady for the non-<\/p>\n
production of those documents. Learned counsel referred to<\/p>\n
Section 507 of the Kerala Municipalities Act and submitted<\/p>\n
that in terms of that Section, tutorial college can be<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 6 –\n<\/p>\n
\nestablished in a municipal area only after obtaining prior<\/p>\n
registration from the municipality.     Admittedly, no such<\/p>\n
registration was obtained from the Kannur Municipality.<\/p>\n
This according to the learned counsel is a circumstance<\/p>\n
which disproves the case of the landlady that          tutorial<\/p>\n
college was started in the petition schedule building on 10-<\/p>\n
7-2002. Counsel submitted that there was no evidence to<\/p>\n
prove that the building was in such a dilapidated condition<\/p>\n
that the respondent became compelled to stop the tutorial<\/p>\n
college in the midway. Learned counsel submitted that the<\/p>\n
building in question was situated in a very important locality<\/p>\n
of Kannur Municipal Town and the case of the landlady that<\/p>\n
gypsies came to occupy the same without the knowledge of<\/p>\n
the landlords is highly improbable. It is in evidence that the<\/p>\n
building in question is not far away from the place of<\/p>\n
residence of the landlords and that unauthorised occupation<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 7 –\n<\/p>\n
\nby anybody in the building will be noticed by the landlords<\/p>\n
or the members of their family who pass by the building<\/p>\n
every day.      Mr.Kauser submitted that the case of the<\/p>\n
landlady that the building was demolished for the purpose of<\/p>\n
paving way for reconstructing the same was also false. If as<\/p>\n
a matter of fact , there is a genuine proposal to reconstruct<\/p>\n
the building the respondents could have obtained an<\/p>\n
approved      plan and a building permit.  No such plan or<\/p>\n
building permit has been obtained and this again is a<\/p>\n
circumstance which disproves the landlady’s case. All the<\/p>\n
courts in the country from the Rent Control Court to the<\/p>\n
Honourable Supreme Court have been taken for a ride by<\/p>\n
the respondents and hence the learned counsel requested<\/p>\n
that subsection (12) of Section 11 may be read in a<\/p>\n
meaningful manner and implemented effectively. Mr.Kauser<\/p>\n
submitted that the Appellate Authority failed to notice the<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 8 –\n<\/p>\n
\ndifference between the words possession and occupation.<\/p>\n
The learned counsel referred to the various statutory<\/p>\n
provisions     such as  subsection  (12)  of Section     11,<\/p>\n
subsections (3) and (8) of Section 11, clause (iv) of<\/p>\n
subsection (4) of Section 11 and subsection (5) of Section<\/p>\n
11. In order to expatiate his argument that possession and<\/p>\n
occupation are different, the learned counsel relied on the<\/p>\n
judgment of a Division Bench of this Court in      Simon v.<\/p>\n
Rappai, 2008(3) KLT 121.     For the same proposition the<\/p>\n
learned counsel relied on the bench decision of this Court in<\/p>\n
Kurian Thomas v. Sreedhara Menon<\/a>, 2004(3) KLT 326. The<\/p>\n
learned counsel relied also on judgment of another Division<\/p>\n
Bench of this Court in Rajagopalan v. Gopalan, 2004(1) KLT<\/p>\n
Short Note 70 to which one among us (Pius C.Kuriakose(J)<\/p>\n
was a member.        Sri.K.V.Pavithran, appearing for the<\/p>\n
contesting landlords would resist the submissions of<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 9 –\n<\/p>\n
\nMr.Kauser on the various reasons stated in the judgment of<\/p>\n
the Appellate Authority. He drew our attention to Ext.C1<\/p>\n
report and C2 plan as well as to the oral evidence given by<\/p>\n
PW1, the tenant.\n<\/p>\n
     5. We have considered the rival submissions addressed<\/p>\n
at the Bar. Since the findings of the authorities below are<\/p>\n
not concurrent, we have made a reappraisal of the evidence.<\/p>\n
     6. A reading of subsection (12) of Section 11 of Act 2 of<\/p>\n
1965 will show that a tenant who was evicted from the<\/p>\n
building on the ground under subsection (3) of Section 11<\/p>\n
will be entitled for repossession (i) if the landlord fails to<\/p>\n
occupy the building within 1 month without reasonable<\/p>\n
cause, or (ii) after occupying it within 1 month, vacates the<\/p>\n
building without reasonable cause within 6 months. In the<\/p>\n
instant case, the allegation of the tenant is that the landlady<\/p>\n
failed to occupy the building not even for a single day within<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 10 –\n<\/p>\n
\none month of getting eviction. On the contrary, they let out<\/p>\n
the building to gypsies. The petition for repossession was<\/p>\n
filed on 21-11-2002.         The commissioner      conducted<\/p>\n
inspection on the very next day after giving notice to the<\/p>\n
petitioner as well as to the landlady.     The commissioner<\/p>\n
found the building to be in a dilapidated condition and to be<\/p>\n
under the occupation of gypsies. The gypsies informed the<\/p>\n
commissioner on enquiry that they were in occupation of the<\/p>\n
big hall of the petition schedule building as well as the land<\/p>\n
surrounding the building for last two weeks and that they<\/p>\n
will be leaving the place within two weeks. It was found<\/p>\n
that the building consisted of a big hall and two small<\/p>\n
rooms. The commissioner found the entire roofing of the<\/p>\n
big hall in a damaged condition. It was also found that the<\/p>\n
roofing of the small two rooms were also damaged, but the<\/p>\n
same was seen covered by a thick tarpaulin sheet. The<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 11 –\n<\/p>\n
\ndoor frames and window frames were also found to be in<\/p>\n
damaged condition.          The commissioner found some<\/p>\n
benches and desks in the two small rooms. But they were<\/p>\n
not seen arranged as in class rooms. No black board was<\/p>\n
noticed by the commissioner anywhere in the building. The<\/p>\n
two small rooms were full of     cob webs and dust. It was<\/p>\n
clear that at the time of inspection by the commissioner no<\/p>\n
classes were being conducted in the petition schedule<\/p>\n
building. The landlady also would state that by that time<\/p>\n
she had stopped the tutorial college.     The tenant’s case<\/p>\n
regarding the presence of the gypsies was that the premises<\/p>\n
were let out to the gypsies by the landlady’s husband; but<\/p>\n
the landlady would state that gypsies were in unauthorised<\/p>\n
occupation and that at the time when she was examined<\/p>\n
they had already left the place. The evidence of the tenant<\/p>\n
is that he had seen the gypsies talking to RW1’s husband<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 12 –\n<\/p>\n
\nand that it is with the concurrence of RW’s husband that<\/p>\n
gypsies occupied the building for more than two months.<\/p>\n
This was the basis on which the tenant argued before the<\/p>\n
Rent Control Court that gypsies’ occupation was on the basis<\/p>\n
of lease of the building by the landlords or by RW1’s<\/p>\n
husband. The Rent Control Court however, did not become<\/p>\n
inclined to accept the tenant’s case that the premises were<\/p>\n
let out to the gypsies. According to that court, it is a matter<\/p>\n
of common knowledge that wandering gypsies make use of<\/p>\n
uninhabited and unoccupied premises for their temporary<\/p>\n
stay.      Presence of the gypsies reported to by the<\/p>\n
commissioner was not attached much importance by that<\/p>\n
court. However, on appreciating the evidence adduced by<\/p>\n
the parties the Rent Control Court found that the landlady<\/p>\n
had not occupied the building within one month of the date<\/p>\n
of eviction. The court noticed that the definite case of the<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 13 –\n<\/p>\n
\nlandlady in this context was that though the building was<\/p>\n
not in a good condition she had started tutorial classes from<\/p>\n
the two small rooms in the petition schedule building within<\/p>\n
one month. It was noticed by that court that in the counter<\/p>\n
filed by her she does not mention the date on which classes<\/p>\n
were started. But at the stage of evidence, she would say<\/p>\n
that she started classes on 10-7-2002. According to her,<\/p>\n
since the academic year had already started she started<\/p>\n
classes even without waiting for carrying out repairs to the<\/p>\n
building.      She stated that she had 22 students who had<\/p>\n
failed in the SSLC examination. In cross examination she<\/p>\n
stated that she was keeping           an attendance register.<\/p>\n
According to her, since the register got damaged she is not<\/p>\n
in a position to produce it. But she also stated that there<\/p>\n
were other documents to prove that she did start tutorial<\/p>\n
college on 10-7-2002. The Rent Control Court noticed that<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 14 –\n<\/p>\n
\nno such documents were produced by her despite her such<\/p>\n
statement. The court also noticed that no documents were<\/p>\n
produced by her to prove her case that she had applied to<\/p>\n
the municipality for licence. The Rent Control Court referred<\/p>\n
to Sections 506<\/a> and 507<\/a> of the Municipalities Act and found<\/p>\n
that prior registration with the municipal authorities is<\/p>\n
necessary for starting tutorial college within the area of<\/p>\n
municipality. The non-obtainment of registration was also<\/p>\n
highlighted by the Rent Control Court as a circumstance<\/p>\n
disproving the case of the landlady. The Rent Control Court<\/p>\n
also noticed that it was the case of RW1 in evidence that<\/p>\n
some of the students who were attending her classes in the<\/p>\n
petition schedule building are still coming to her for tuition<\/p>\n
at her residence. According to her, all these students come<\/p>\n
from within the area of Kannur Municipal Town. She stated<\/p>\n
further that the parents of these children were not prepared<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 15 –\n<\/p>\n
\nto send their children to classes considering the dilapidated<\/p>\n
condition of the building and it was because of this that she<\/p>\n
became compelled to stop the tutorial college. The court<\/p>\n
noticed that apart from herself, no other witnesses were<\/p>\n
examined and accordingly found that the version of RW1<\/p>\n
that she had started tutorial college in the petition schedule<\/p>\n
building on 10-7-2002 cannot be accepted. The absence of<\/p>\n
a black board at the time of the commissioner’s visit is also<\/p>\n
highlighted by the learned Rent Control Court. The presence<\/p>\n
of benches and desks, according to the learned court, was<\/p>\n
only part of the stage management done by the landlady in<\/p>\n
view of the commissioner’s visit.\n<\/p>\n
     7.     Even though the question as to whether the<\/p>\n
landlady vacated the premises within six months without<\/p>\n
reasonable cause did not arise for consideration in view of<\/p>\n
the finding of the Rent Control Court that the landlady never<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 16 –\n<\/p>\n
\noccupied the building      the above question was also<\/p>\n
considered by the Rent Control Court. The court noticed<\/p>\n
that the version of the landlady was that she stopped the<\/p>\n
tutorial college on 10-11-2002.       On the basis of the<\/p>\n
Commissioner’s report based on the inspection on 22-11-<\/p>\n
2002 the court found that the non-occupation was not a<\/p>\n
recent one but it relates to a very long period. The court<\/p>\n
has highlighted the presence of cob webs, huge quantity of<\/p>\n
dust etc. and found that it is very difficult to believe the<\/p>\n
version of the landlady that the college was stopped just 12<\/p>\n
days prior to the inspection. The court also found it difficult<\/p>\n
to accept the landlady’s case that it is due to the highly<\/p>\n
dilapidated condition of the building that she became<\/p>\n
compelled to stop the tutorial college. There is no evidence<\/p>\n
to show that after effecting delivery any portion of the<\/p>\n
building      collapsed or got damaged further after the<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 17 –\n<\/p>\n
\nlandlady occupied the building and started the       tutorial<\/p>\n
college.    The court noticed that if the landlady is to be<\/p>\n
believed, she started tutorial college in the middle of July,<\/p>\n
2002 and continued the same till the month of August also.<\/p>\n
These months, the court noticed, are months of heavy rain.<\/p>\n
According to the court, if she could carry on classes during<\/p>\n
these months, it is difficult to accept her case that she<\/p>\n
became compelled to stop the classes in November when<\/p>\n
the climatic conditions are very favourable. Accordingly it<\/p>\n
was found that the landlady’s case that she became<\/p>\n
compelled to vacate due to sufficient cause after occupying<\/p>\n
the building for one month cannot be accepted. The Rent<\/p>\n
Control Court also noticed that it was never the case of the<\/p>\n
landlady in the original proceedings that the building is to<\/p>\n
be pulled down and a new one is to be constructed. It was<\/p>\n
noticed that the demolition exercise was begun only after<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 18 –\n<\/p>\n
\nthe present RCP for repossession was filed. The tenant filed<\/p>\n
an original suit seeking injunction against demolition.<\/p>\n
Temporary injunction was issued. The Rent Control Court<\/p>\n
found that no steps were taken by the landlady for keeping<\/p>\n
the building in a habitable condition. The court also noticed<\/p>\n
that no document was produced to prove the landlords’ case<\/p>\n
that they have applied to the local authority for a building<\/p>\n
permit. On the basis of all these findings the Rent Control<\/p>\n
Court concluded that the intention of the landlord was<\/p>\n
clearly to circumvent the provisions of sub-section (12) of<\/p>\n
Section 11<\/a>.      Relying on the judgment of this Court in<\/p>\n
Saramma Punnen v. Varkey<\/a>, 1983 KLT 898 the Rent Control<\/p>\n
Court found that the landlords were liable to be directed to<\/p>\n
rebuild the demolished portion of the building and to provide<\/p>\n
tiled roofing and then to restore possession of the building<\/p>\n
to its original condition and thereafter to re-induct the<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 19 –\n<\/p>\n
\ntenant into possession.\n<\/p>\n
     8. The Appellate Authority considered the appeal filed<\/p>\n
by the landlord. The Appellate Authority would rely on the<\/p>\n
Advocate Commissioner’s report and hold that in the two<\/p>\n
small rooms in the building six wooden benches, six wooden<\/p>\n
desks, one wooden chair and one wooden table were found.<\/p>\n
Analysing the oral evidence adduced by PW1 and RW1 the<\/p>\n
Appellate Authority concluded that at the time of filing of the<\/p>\n
present RCP, the petition schedule building was in a<\/p>\n
dilapidated condition, evidently unfit for conducting tuition<\/p>\n
classes.     The Appellate Authority would thus accept the<\/p>\n
evidence of RW1 the landlady that she started tuition<\/p>\n
classes in the two small rooms and continued the classes till<\/p>\n
10-11-2002 but became forced to stop the classes because<\/p>\n
of the collapsible condition of the building. In this context<\/p>\n
the Appellate Authority took into account the evident<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 20 –\n<\/p>\n
\nposition that during the period of 8 years during which the<\/p>\n
original rent control petition was pending the landlady was<\/p>\n
never permitted by the tenant to carry out the repairs or<\/p>\n
maintenance of the building and would thus indirectly hold<\/p>\n
that the tenant was responsible for the physical condition of<\/p>\n
the building at the time of delivery of the same to the<\/p>\n
landlady. The existence of furniture and a writing on the<\/p>\n
board exhibiting the name of the      tutorial college are all<\/p>\n
relied on by the learned Appellate Authority to accept the<\/p>\n
landlady’s version that she did occupy the building. After<\/p>\n
entering that finding, the learned Appellate Authority would<\/p>\n
refer to various judicial precedents such as 1992(2) KLT 1<\/p>\n
(Chandran v. Addl<\/a>. District Judge), 1983 KLT 898 (Saramma<\/p>\n
Punnen v. Varkey<\/a>), 1981 KLT 708 (Thomas v. Kunju<\/p>\n
Thomman) pertaining to the scope of sub-section (12) of<\/p>\n
Section 11<\/a> and conclude that the landlady was justified in<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 21 –\n<\/p>\n
\nvacating the building before the expiry of six months. On<\/p>\n
the basis of the above findings the appeal was allowed and<\/p>\n
the RCP was dismissed.\n<\/p>\n
     9. We are unable to agree with the learned Appellate<\/p>\n
Authority.      According to us, there was no warrant for<\/p>\n
interfering with the finding of the Rent Control Court that<\/p>\n
the landlady did not occupy the building within one month of<\/p>\n
taking delivery of the same through execution proceedings.<\/p>\n
It was in the evidence of RW1 that there are documents<\/p>\n
available with her for proving that she had conducted<\/p>\n
tutorial classes in the building after she took possesion of<\/p>\n
the building. But no documents whatsoever were produced<\/p>\n
by RW1. This was a circumstance on the basis of which the<\/p>\n
Rent Control Court rightly drew adverse inference against<\/p>\n
the landlady. There was no warrant in the evidence for not<\/p>\n
agreeing with the Rent Control Court. Section 506 of the<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 22 –\n<\/p>\n
\nKerala Municipalities Act mandates that for starting a<\/p>\n
tutorial college prior registration from the local authority is<\/p>\n
necessary. The evidence of RW1 is that registration was<\/p>\n
applied for, but not obtained. Significantly, no documents<\/p>\n
which will prove that the landlady had applied for<\/p>\n
registration as she claims are produced or caused to be<\/p>\n
produced by the landlady. This again was a circumstance<\/p>\n
warranting drawal of adverse inference against the landlady.<\/p>\n
The landlady’s oral evidence was to the effect that 22 local<\/p>\n
students who had failed in the SSLC Examination were<\/p>\n
attending the tutorial college      started by her. She even<\/p>\n
stated that she is giving tuition to some of those students at<\/p>\n
her residence even now.        Not even one such student is<\/p>\n
examined by her for proving that tutorial college was<\/p>\n
actually conducted by the landlady after she took delivery of<\/p>\n
the building from the tenant. So also, it is the landlady’s<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 23 –\n<\/p>\n
\nversion that she became compelled to close down the<\/p>\n
tutorial college because the parents of the students were<\/p>\n
not willing to send their children to the building in view of its<\/p>\n
dangerously dilapidated condition.      If this were true, the<\/p>\n
landlady could have examined at least one parent for<\/p>\n
proving the same. It is true that a few pieces of benches<\/p>\n
and desks were seen in the building by the Advocate<\/p>\n
Commissioner, but significantly they were not seen arranged<\/p>\n
as in class rooms. The black board, an indispensable item in<\/p>\n
any class room was not found in the building at all. The<\/p>\n
inference of the learned Rent Control Court that the benches<\/p>\n
and desks full of dust and cob webs will not advance the<\/p>\n
case of the landlady that she conducted tutorial college in<\/p>\n
the building appears to us to be correct. It is ignoring the<\/p>\n
tell-tale circumstances noticed by the Rent Control Court<\/p>\n
and the adverse inferences rightly drawn by that Court that<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 24 –\n<\/p>\n
\nthe Appellate Authority reversed the finding of that court<\/p>\n
and   accepted the landlady’s version that she conducted<\/p>\n
tutorial college for a short while after taking delivery of the<\/p>\n
building. We reverse the finding of the Appellate Authority<\/p>\n
and restore the finding of the Rent Control Court on the<\/p>\n
question as to whether the landlady occupied the petition<\/p>\n
schedule building for conduct of tutorial classes.<\/p>\n
     10.      In view of the finding that the landlady did not<\/p>\n
occupy the building for conduct of tutorial college, the<\/p>\n
further question whether there was reasonable cause for her<\/p>\n
to discontinue the tutorial classes does not arise. Here also<\/p>\n
we are unable to agree with the Rent Control Appellate<\/p>\n
Authority.      The Appellate Authority has accepted the<\/p>\n
landlady’s version that in view of the dangerously<\/p>\n
dilapidated condition of the building she decided to<\/p>\n
reconstruct the building and started demolishing the<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 25 –\n<\/p>\n
\nbuilding for the purpose of reconstruction and that she was<\/p>\n
unable to continue with the reconstruction because of the<\/p>\n
interim order passed by the civil court at the instance of the<\/p>\n
tenant.     The report of the commissioner is that though<\/p>\n
dilapidation had clearly set in, the walls of the building were<\/p>\n
sufficiently strong and sturdy.      The evidence is that the<\/p>\n
exercise of demolition was taken up by the landlady only on<\/p>\n
coming to know about the instant motion of the tenant<\/p>\n
under sub-section (12) of Section 11<\/a>.            Even on the<\/p>\n
landlady’s own showing and conduct, at the time when she<\/p>\n
took delivery she did not find the building unsafe or unfit<\/p>\n
for conducting tutorial college, in which case one would<\/p>\n
have expected her to apprise the Rent Control Court of her<\/p>\n
inability to occupy the building for the need projected by her<\/p>\n
in the original RCP.\n<\/p>\n
     11. Restoration of possession is the relief which is<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                             – 26 –\n<\/p>\n
\ncontemplated by sub-section (12) of Section 11<\/a> for the<\/p>\n
tenant once it is seen that the landlord who obtained<\/p>\n
possession of a building in pursuance of an order of eviction<\/p>\n
under sub-section (3) has not occupied the same without<\/p>\n
reasonable cause within one month of obtaining possession<\/p>\n
or vacates the building without reasonable cause after<\/p>\n
having occupied it. Ordinarily we would have been inclined<\/p>\n
to direct the respondent to put the revision petitioner back<\/p>\n
in possession. But even the Rent Control Court found that<\/p>\n
the building in question is not presently in a habitable<\/p>\n
condition. We are also convinced that without a full fledged<\/p>\n
reconstruction the building in question is not going to<\/p>\n
become habitable. The building has become totally unfit of<\/p>\n
habitation only because of the partial demolition carried out<\/p>\n
by the landlady after the    institution of the proceedings<\/p>\n
under Section 11(12)<\/a> of the Act.     The Rent Control Court<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 27 –\n<\/p>\n
\ndirected the landlady to reconstruct the building and then<\/p>\n
re-induct the tenant into the same. Such a direction was<\/p>\n
passed accepting the landlady’s evidence that she wanted to<\/p>\n
reconstruct the building. We are not at all inspired by that<\/p>\n
evidence. The landlady is yet to obtain a permit from the<\/p>\n
municipality for the proposed reconstruction.        There is<\/p>\n
nothing in the landlady’s evidence for holding that she has<\/p>\n
got the wherewithal to carry out the reconstruction of the<\/p>\n
building.     Reconstruction will be a very expensive affair.<\/p>\n
Therefore a direction to the landlady to reconstruct the<\/p>\n
building and then re-induct the tenant will not be proper.<\/p>\n
     12. The authorities under the Rent Control Act are<\/p>\n
expected to be governed by the principles of equity, justice<\/p>\n
and good conscience while adjudicating the causes that<\/p>\n
come up for decision before them. (see rule 11(8) of the<\/p>\n
statutory rules)     We are convinced that the respondent<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                               – 28 –\n<\/p>\n
\nlandlady has entailed     liability under sub-section (12) of<\/p>\n
Section 11<\/a> to reinstate possession of the building to the<\/p>\n
evicted tenant the revision petitioner. In view of our finding<\/p>\n
that the present condition of the building is dangerously<\/p>\n
unsafe, we feel that on considerations of equity, justice and<\/p>\n
good conscience the respondent can be directed to pay an<\/p>\n
amount as compensation to the revision petitioner tenant,<\/p>\n
large enough for fetching the revision petitioner every<\/p>\n
month, a sum       sufficient for paying the monthly rent<\/p>\n
payable for a building similar to the one from which he was<\/p>\n
evicted. The rent which was being paid by the revision<\/p>\n
petitioner for the building from which he was evicted was<\/p>\n
only Rs.300\/-.   But that rent was fixed years ago.       The<\/p>\n
building is admittedly situated in a very important area of<\/p>\n
Kannur Municipal Town abutting the main thoroughfare in<\/p>\n
that town. The building was a fairly large building with<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                                 – 29 –\n<\/p>\n
\nseveral rooms standing on a very spacious compound. It is<\/p>\n
not disputed before us by any of the counsel that for taking<\/p>\n
such a building now on lease in such an area of Kannur the<\/p>\n
payable monthly rent will definitely exceed Rs.5000\/-. We<\/p>\n
are of the view that the amount to be paid by the<\/p>\n
respondent to the revision petitioner should be large enough<\/p>\n
to fetch the revision petitioner every month a sum of at<\/p>\n
least Rs.1500\/-. Going by the rates of interest presently<\/p>\n
offered on giltedged securities by the Government of India<\/p>\n
in order that a sum of Rs.1500\/- is received every month, a<\/p>\n
sum of Rs.2,25,000\/- will have to be deposited. Therefore<\/p>\n
allowing the rent control revision,             we direct the<\/p>\n
respondents other than R1 to R3 to pay to the revision<\/p>\n
petitioner a sum of Rs.2,25,000\/- in full and final settlement<\/p>\n
of their liabilities to the revision petitioner and in respect of<\/p>\n
the building which is subject matter of the proceedings<\/p>\n
 RCR. No. 342\/06\n<\/p>\n
                              – 30 –\n<\/p>\n
\nwithin three months from today.        On failure to make<\/p>\n
payment within the time stipulated above the revision<\/p>\n
petitioner is permitted to recover the amount together with<\/p>\n
interest at the rate of 8% per annum from the respondents<\/p>\n
and out of their assets including the petition schedule<\/p>\n
premises.\n<\/p>\n
     RCR is allowed as above with costs.\n<\/p>\n
\n
                         PIUS C.KURIAKOSE, JUDGE<\/p>\n
                         C.K. ABDUL REHIM, JUDGE
\nksv\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Thavakkara Koolath Valappil … vs Chalakkadan Kodichi Nalini on 24 November, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 342 of 2006() 1. THAVAKKARA KOOLATH VALAPPIL SREEDHARAN, … Petitioner Vs 1. CHALAKKADAN KODICHI NALINI, … Respondent 2. RAGHAVAN, S\/O.MADHAVI, 3. PURUSHOTHAMAN, S\/O.MADHAVI, 4. SREEDHARAN, S\/O.MADHAVI, For Petitioner :SRI.M.K.SUMOD For Respondent […]<\/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-258445","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThavakkara Koolath Valappil ... vs Chalakkadan Kodichi Nalini on 24 November, 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\/thavakkara-koolath-valappil-vs-chalakkadan-kodichi-nalini-on-24-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thavakkara Koolath Valappil ... vs Chalakkadan Kodichi Nalini on 24 November, 2009 - 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