K.V. SASI VARMA and K.V. RAJASREE VARMA v. V. PARTHASARADHI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936** ## **RCRev..No. 216 of 2012 ()** **----------------------------------------------AGAINST THE ORDER/JUDGMENT IN RCA 106/2008 RENT CONTROL APPELALTE AUTHORITY DATED 15-11-2011** **AGAINST THE ORDER/JUDGMENT IN RCP 101/2007 of RENT CONTROL COURT DATED 28-06-2008** **REVISION PETITIONER(S)/PETITIONERS/APPELLANTS/PETITIONERS NO. 2 AND 3:** **-----------------------------------------------------------------------------------------------------------------------** **1. K.V.SASI VARMA, AGED 55 YEARS,** - **S/O SUBHADRA KOVILAMMA, SREERAJ HOUSE, POST MANKAVU, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, PIN-673 007.** **2. K.V. RAJASREE VARMA, AGED 46 YEARS,** **D/O SUBHADRA KOVILAMMA, SREERAJ HOUSE, POST MANKAVU, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, PIN-673 007.** **BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH** ## **RESPONDENT(S)/RESPONDENT/RESPONDENT:** **----------------------------------------------------------------------** **V.PARTHASARADHI, AGED 53 YEARS, S/O V.K. VISWANATHA PILLAI, NO. 8, KEERTHI NAGAR COLONY, KASABA AMSOM AND DESOM, PIN-673 002, KOZHIKODE TALUK.** **R1 BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26-09- 2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DG** **'CR'** # **THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ----------------------------------------------------------------- R.C.R.No.216 of 2012 ------------------------------------------------------------------Dated this the 26[th] day of September, 2014 ## **ORDER** ## **Thottathil B.Radhakrishnan, J.** - 1.Heard the learned counsel for the petitioner. - 2.This revision under Section 20 of Act 2 of 1965 is filed by the landlord of a building on the ground that the tenant used the building in such a manner as to destroy or reduce its value or utility, materially and permanently and therefore, he is liable to be evicted in terms of Section 11(4)(ii) of that Act. - 3.Hearing the testimony of the 1[st] additional petitioner before the Rent Control Court and the Advocate Commissioner who conducted local inspection and the testimony of the tenant as RW1 and considering the documentary evidences Exhibits A1, A1(a), A1(b), A1(c), A2 and Exhibits B1 and B2, as **2** _R.C.R.No.216/12_ also Commissioner's report Exhibit C1 and Exhibit C2 complaint, the Rent Control Court dismissed the petition. The Appellate Authority on re-appreciating the facts and evidence, affirmed the dismissal. The landlord's revision is against such concurrent findings. The question is whether the order and judgment impugned, warrant interference under Section 20 of Act 2 of 1965 on the ground of illegality, irregularity or impropriety. 4.The learned counsel appearing for the revision petitioner argued that the courts below had not appreciated the evidence in the proper perspective and that the finding that the activities attributed to the tenant do not destroy or reduce the value or utility of the building materially and permanently is unsustainable. Making reference to **British Motor Car Co. v. Madan Lal Saggi [(2005) 1 SCC 8]** and **Gurbachan Singh v. Shivalak Rubber Industries [(1996) 2 SCC 626],** it is argued that the concept of 'utility and value' of a building has to be ascertained from the view point of the landlord. This argument is sought to be further buttressed by making reference to **Sameera & Others v. M.C.Mammootty &** **3** _R.C.R.No.216/12_ **Another [2014 (1) KLJ 47]** and **Francis v. Davis [2005 (3) KLT 815],** which were also relied on to say that when it is shown that the action complained of was done without the consent of the landlord, it is imperative to view the material evidence and assess the facts only from the angle of the interest of the landlord over the property which belongs to him and not from the view point of the tenant's utility of the building. Reference was also made to **Sajith Bhaliga v. Paul [2013 (2) KLT 287]** , which dealt with replacement of the front door shutters of a building which is one of antique beauty and situated in a heritage zone, to which area the provisions of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 had some application. On facts, the argument is that the building is a fairly old one and the tenant replaced its front wooden door with an iron door and later on, had cut open a portion of the eastern side of the building by removing a window and placed a door instead, using plywood and trying to camouflage it by painting it green. According to the landlord, this is an alteration, which is material, having regard to the nature of the building and such activity amounts to reduction of the value and utility of the building. **4** _R.C.R.No.216/12_ - 5.Per contra, the learned counsel for the respondent tenant argued that the Rent Control Court as well as the Appellate Authority had considered and appreciated the entire facts and evidence on record and had rendered findings based on evidence. He argued that there is no illegality, irregularity or impropriety, warranting interference in a revision under Section 20 of the Act. He further argued that no term of any written lease is shown, to the effect that consent should be obtained for any alteration whatsoever, and the courts below have correctly appreciated the fact situation, having regard to the nature of the business that the tenant is carrying on from the building. He further pointed out that the application for eviction is merely a ruse to evict, after the landlord was ultimately defeated in all courts, concurrently, in an earlier round raising different grounds for eviction, including bona fide need. - 6.The Rent Control Petition itself obviously states about the earlier proceedings and the fact that it was instituted on multifarious grounds available under Act 2 of 1965. We are not to be persuaded by the failure of the landlord in that petition and the appeal and revision arising therefrom while **5** _R.C.R.No.216/12_ deciding the case in hand. 7.In sofaras the landlord's plea under Section 11(4)(ii) of Act 2 of 1965 is concerned, the plea is built on two particular instances of alleged alterations. Those alterations are evidenced by Exhibit C1 Commissioner's report and Exhibit C2 plan, which are materials on record and also corroborated by the testimony of PW2, the Commissioner who conducted the local inspection. The tenant took the stand that he had obtained Exhibits B1 and B2, which contained the consent of the original landlady for effecting such changes. The landlady who was the original petitioner passed away during the pendency of the proceedings before the Rent Control Court. Her legal representatives were brought on record. It was thereafter that the Rent Control Petition proceeded with the trial. Exhibit B1, signed by the original landlady, was admitted by PW2, her son. That related to one of the modifications. Exhibit B2 putforward by the tenant was challenged by the legal representatives of the landlady as one not issued by the original landlady and that it is not admissible as legal evidence. They said that it was not even produced during the life time of that lady and, therefore, she could not even get an **6** _R.C.R.No.216/12_ opportunity to speak against it. Assimilating the facts and circumstances, the Rent Control Court held that Exhibit B2 document is not acceptable or reliable. Thus, the so-called consent for the 2[nd] modification was not shown to exist. 8.While the learned counsel for the revision petitioner argued that there is a specific statement in the Rent Control Petition that there was a condition that no modifications can be done; for one thing, we note at once that there is no written contract; secondly and more importantly, even if there is an oral contract, no terms thereof have been specifically reduced and pleaded, if we are to go by the strict rules of pleadings. The Rent Control Petition, it is true, contains a statement that without consent, the modification could not have been made. Though the tenant could be said to have not specifically challenged any such particular term in the Rent Control Petition, as rightly noted by this Court in **Francis** (supra), a provision as to violation of a term of contract by itself may not be sufficient for granting an order of eviction, since the Act 2 of 1965 does not provide for such an eventuality. Therefore, as held in that case, grounds existing under Section 11(4)(ii) will have to be established and a contractual inhibition or a **7** _R.C.R.No.216/12_ covenant in the contract of lease requiring the tenant not to make any modification without the prior permission of the landlord can be utilized only to strengthen a finding of fact which can generate the jurisdictional situation for an order of eviction under Section 11(4)(ii) of Act 2 of 1965. It is here that it becomes important that the Rent Control Court, after holding that Exhibit B2 is not reliable, examined the entire material evidence on record and dealt with those materials to conclude in paragraph 16 of its order that it cannot, by any stretch of imagination, be considered that there is any alteration which reduces the value and utility of the building materially and permanently and that replacement of the wooden door with the iron door can never be considered as reducing the value and utility as well. Those findings have been rendered by the Rent Control Court at conclusion of trial, assimilating the materials on record. Even if that were mixed questions of facts and law, the findings rendered contained the reasons and reflected the reasoning process of the Rent Control Court in arriving at its conclusion. 9.The Appellate Authority under Section 18 of Act 2 of 1965, is seen to have examined the entire evidence again. The finding **8** _R.C.R.No.216/12_ of the Rent Control Court, as noted above, gets the seal of approval of the Appellate Authority in paragraph 15 of its judgment, which reflects a complete and cohesive appreciation of the totality of the facts, evidence and other possible inferences available from the record. Therefore, we cannot find fault with the manner in which the Appellate Authority has exercised its jurisdiction under Section 18 of the Act as well. - 10.For the aforesaid reasons, we are unable to see any ground to hold that the impugned order and judgment are vitiated by illegality, irregularity or impropriety, warranting interference in exercise of revisional jurisdiction under Section 20 of Act 2 of 1965. This revision, therefore, fails. In the result, this revision is dismissed. No costs. ## Sd/- ## **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** Sd/- **(BABU MATHEW P. JOSEPH, JUDGE)** //TRUE COPY// P.A TO JUDGE DG