K. D. Antony v. K. Venugopalamenon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 RCRev..No. 368 of 2010() -----------------------RCA.27/2004 of RENT CONTROL APPELLATE AUTHORITY THRISSUR RCP.86/2001 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT-TENANT ------------------------------------------------------------------- K.D.ANTONY, S/O.KURUTHUKULANGARA PALISSERY DEVASSIK, PARALAM VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.M.UNNIKRISHNA MENON SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): APPELLANT/PETITIONER-LANDLORD -------------------------------------------- K.VENUGOPALAMENON, S/O.KARANGATTIL PARVATHY AMMA, VADAKKE ANGADI DESOM, THRISSUR VILLAGE AND TALUK, THRISSUR-680001. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -----------------------R.C.R.No. 368 OF 2010** ## **------------------------** Dated this the 6[th] day of December, 2010 ## **O R D E R** ## Gopinathan , J. The tenant/respondent in RCP No.86/2001 on the file of the Rent Control Court, Thrissur has come up in revision under Section 20 of the Kerala Lease Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') assailing the judgment of the Rent Control Appellate Authority in RCA No.27/2004, whereby the eviction granted under Section 11 (4)(ii) by the Rent Control Court was confirmed. The respondent/landlord filed the above petition seeking an order of eviction under Section 11 (2) (b) and 11(4)(ii) of the Act. It is submitted by the learned counsel appearing for the revision petitioner that the rent RCR.No.368/2010 2 arrears were cleared and eviction order under Section 11 (2)(b) is no more live. That submission is recorded. The respondent alleged in his petition that the revision petitioner had made damages and alterations whereby the value and utility of the petition schedule building were materially and permanently reduced. The revision petitioner denied the damages and reduction of utility and value of the petition schedule building. He contended that because of some alterations and constructions made by the revision petitioner, the value and utility of the petition schedule building were increased. 2. The Rent Control Court enquired the rent control petition along with RCP No.87/2010. During the course of the enquiry, on the side of the respondent, PWs 1 to 3 were examined. On the side of the revision petitioner, himself and another witness were examined as RWs1 and 2. Exts.A1 to A3 were marked on the side of the respondent. On the side of the revision petitioner Exts.B1 to B5 series RCR.No.368/2010 3 were marked. On appraisal of the evidence, the rent control court arrived at a finding in favour of the respondent. Consequently, the revision petitioner was directed to put the respondent in possession of the petition schedule building under Section 11(4)(ii). The above order was confirmed in appeal. Now the revision. 3. We heard Sri.K.M.Jamaludheen, learned counsel appearing for the revision petitioner and perused the judgment impugned as well as the order of the Rent Control Court. 4. The learned counsel for the revision petitioner fairly conceded that the revision petitioner had made some constructions. According to him, it only enhanced the value and utility of the petition schedule building and for that construction, the revision petitioner is not liable to be evicted under Section 11(4)(ii) as no damage was caused to the building so as to reduce its value an utility. It was also argued that the respondent had acquired citizenship in RCR.No.368/2010 4 Canada and therefore, he is not entitled to get an order of eviction in respect of the petition schedule building. Though it was contended by the learned counsel for the revision petitioner that the respondent had acquired citizenship in Canada, no evidence was let in to that effect. The learned counsel would argue that it is admitted in the witness box that the respondent had been residing in Canada for the last 30 years on employment, so it could be presumed that he had acquired citizenship there. Curiously we notice that the revision petitioner had not dared to depose that the respondent has citizenship in Canada. We find no merit in this argument as it is not supported by pleadings or evidence. To PW1, there is not even a suggestion that he had acquired Canadian citizenship. In the above circumstances, we find that the revision petitioner had not succeeded to establish that the respondent had Canadian citizenship. Going by the judgment impugned, we find that the said argument was RCR.No.368/2010 5 considered by the appellate authority in the light of the decision reported in Sebastian E.J. and others v. Dr.A.M.Mathai (ILR 2005 (4) 302). The appellate authority had found that the respondent is not at all disqualifed for that reason from seeking order of eviction of the revision petitioner. It is revealed that the petition schedule building, which is aged more than 100 years, was obtained to the respondent by inheritance. The mere fact that the respondent had gone abroad on employment would not dis entitle him to hold the title of the property or seeking an order of eviction of the tenant who was put in possession of the petition schedule building by the predecessor of the respondent. It is pertinent to note that the revision petitioner has no case that the respondent is not entitled to receive rent. On the other hand, rent is being paid to the respondent. A person who has the right to receive the rent has got the right to evict, of course, subject to the provisions of the Act. Since the revision petitioner continues RCR.No.368/2010 6 to pay the rent, in fact, he is estopped from raising a contention that the respondent is not entitled to evict the revision petitioner. Hence, we reject the contention that the respondent is not entitled to an order of eviction for the reason that he is employed in Canada. 5. As regards the constructions made by the revision petitioner, the appellate authority had elaborately mentioned in para 11 of the judgment impugned. To avoid repetition, we quote herein paragraph 11 of the impugned judgment. “The respondent himself has filed affidavit in accordance with the averments in the petition. At page 2 of the affidavit, it is alleged by the respondent that the window on the western side was replaced with an aluminium window. The tenant has put up beam by making holes through the RCR.No.368/2010 7 wall. They extended the building towards the front and the front elevation was constructed without his consent. It is also stated that he had to approach the Munsiff's Court, Thrissur to obtain injunction against the alteration of the building by the tenant. The commissioner visited the property and submitted a report. It is also alleged in the affidavit that the tenants in these two shop rooms colluded and made the alterations and additions without his knowledge and consent. He has been cross examined as PW1. According to him, the building was about 100 years old. According to PW1, the distance between this building and the main road was 10 feet and now it is reduced to one RCR.No.368/2010 8 foot because of the front elevation taken by the tenant. PW1 has deposed that the tenants have made permanent structures by using iron poles and iron rails. According to PW1, major alterations were done to the building. They put up walls on the eastern side without his consent. There was no wall on the eastern side when it was let out to the tenant. Similarly shutters were put up on the eastern side in respect of the room comprised in RCP No.86/2001. There was a door on the eastern side. Now the door is shifted to western side. Rails were put up at the place of the door. Similarly, shutter was put up on the eastern side. A new door was put up on the western side. A leanto was RCR.No.368/2010 9 put up by using iron rails and the two poles. PW1 has denied the suggestion that the alterations made to the existing building have only increased the value. PW1 has denied that except putting up a leanto on 4 poles, no other construction was done by the tenant. He has deposed that the ceiling was removed. .........“ 6. PW2, a retired Superintendent Engineer, also had given supporting evidence that because of the construction made by the revision petitioner, the elevation of the building was changed and the value and utility of the building was reduced. True, that it was put to PW2 in cross examination that because of the additional construction, the value of the building has been increased and he had given affirmative answer. But, we notice that the petition schedule building had got 10 feet wide road frontage. The RCR.No.368/2010 10 revision petitioner had made construction leaving only one foot from the road there by parking area was reduced. There is total change of the structure. It is not disputed that for making alterations or additional constructions extending to the parking area, the revision petitioner had not obtained any permission from the local authority. The result is that the alterations made by the revision petitioner would canvas even penal action including demolition. The additions made by the revision petitioner had been reported in Ext.A3 commission report submitted by PW3 in O.S.No.840/2001. It would also show that the revision petitioner had fitted rolling shutters. Since the wall of the building has no capacity to erect the rolling shutters, the revision petitioner erected pillars in the building and fitted the rolling shutters . These constructions and additions made by the revision petitioner revealed by the evidence of PWs1 to 3 and Ext.A3 would show that the revision petitioner had made material alterations and such RCR.No.368/2010 11 constructions had reduced the value and utility of the petition schedule building. Even elevation of the building was changed and the parking area in front of the building was reduced. These alterations were made without sanction from the local authority. If the local authority initiates action, the respondent is liable for penal action including demolition of the building. In the above circumstances, overlooking the decisions cited by the revision petitioner before the appellate authority in Shanmugam v. Rao Saheeb (1988 (1) KLT 86), G.Arunachalam v. Thondarperienambi ( A.I.R.1992 SC 977) , Ahammad Kanna v. Muhammed Haneef (1967 KLT 841), Om Prakash v. Ammar Singh (AIR 1987 SC 617), B.Prabodhini v. P.Rajammal and others (1991 (1) KL J 113), T.R.Sharma v. State of Haryana ( AIR 1988 SC 2929) and Viswanathan v. Porichy (1985 KLT 551) the appellate authority had confirmed eviction. In its judgment the appellate authority had given reliance to the decision RCR.No.368/2010 12 reported in Seethalakshmi Ammal v. Nabeesath Beevi (2003 (1) KLT 391) and Francis v. Davis (2005 (3) KLT 815). In Francis v. Davis, it is held as follows; “The question to be enquired under Section 11(4)(ii) is not whether the value or utility is increased. Impairment of the value or utility of the building is to be considered in the point of the view of the landlord. If a stipulation is made in the lease deed that the tenant shall not make any additional construction or any alteration to the tenanted building, it is binding on the tenant. It is true, a construction or alteration of the building which does not attract RCR.No.368/2010 13 the ingredients of Section 11 (4)(ii) would not render the tenant liable to be evicted under the Act, eve if there is violation of the said term in the lease deed. At the same time, in considering whether in the point of view of the landlord the offending acts would destroy or reduce the value or utility of the building. Stipulations in the lease deed are relevant. The prohibition in the lease deed against the tenant making construction has certainly relevance while considering question how the 'use' of the building by the tenant was”. 7. Going by the facts of the case and the ratio of the above decision, we find that the above ratio is squarely RCR.No.368/2010 14 applicable to the case on hand and we find that the appellate authority had meticulously considered the evidence on record in the light of the precedents. The eviction granted by the Rent Controller and confirmed in the appeal is in tune with the facts and law. There is no irregularity, illegality or impropriety committed by the facts finding authorities below so as to rectify in revision. The revision is devoid of merits and is liable to be dismissed. 8. The learned counsel for the revision petitioner, having failed to impress us to interfere with the judgment impugned, sought for 10 months time to vacate the premises. It is reported that the revision petitioner had been running printing press in the petition schedule building. There is no case for the revision petitioner that no suitable building is available in the locality. However, having taken into account that the revision petitioner had been occupying the petition schedule building for long time, we find that it would be just and proper to grant time RCR.No.368/2010 15 till 31/5/2011 to vacate on the following conditions; i).The revision petitioner shall file an affidavit within three weeks from today undertaking to vacate the premises on or before 30/5/2011 without raising any objection. ii). The arrears of rent, if any, shall be discharged within one month from today and shall continue to pay occupational charges at the contract rate of rent. In the event the revision petitioner files an affidavit and honours the undertakings, the Rent Control Court/Execution Court, as the case may be, shall keep the order of eviction in abeyance till 30/5/2011. iii). In the event of failure to comply with any of the conditions, the RCR.No.368/2010 16 respondent is at liberty to execute the order of eviction forthwith. There will be no order as to costs. **PIUS C.KURIAKOSE,JUDGE** **P.S.GOPINATHAN, JUDGE** dpk