Meenath Meethal Muhammed v. K.P. Abu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** ## **CRP.No. 1475 of 2002 (F)** **------------------------RCA 49/2000 OF RENT CONTROL APPELLATE AUTHORITY AND IST ADDL. DISTRICT COURT, KOZHIKODE RCP 21/1999 OF RENT CONTROLE AND MUNSIFF COURT, QUILANDY** **------------------** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT :** **------------------------------------------------------------------------------** **MEENATH MEETHAL MUHAMMED, S/O. KUNHAMU, 39 YEARS, BUSINESS PUTHOOR AMSOM AND NADAKKUTHAZHA DESOM OF VADAKARA TALUK.** **BY ADVS. SRI. SUNIL NAIR PALAKKAT SRI. ABHILASH K.N.** **SMT. LEELA R.** ## **RESPONDENT/APPELLANT/PETITIONER :** **------------------------------------------------------------** **K.P.ABU., S/O. BAVOTTY, AGED 60 YEARS, PUKKADAN VALAPPIL HOUSE PANTHALAYANI AMSOM AND KOVILKANDY DESOM KOYILANDY TALUK. (*DIED)** ## ***ADDL. R2 TO R8 IMPLEADED** - ***2. SUBAIDA, W/O. LATE K.P. ABU.** - ***3. K.P. MOHAMMED NAFAS, S/O. LATE K.P. ABU.** - ***4. MOHAMMED HASHIM, S/O. LATE K.P. ABU.** - ***5. SAFIR, S/O. LATE K.P. ABU.** - ***6. SABEELA, D/O. LATE K.P. ABU.** **...2/-** **CRP.No. 1475 of 2002 (F) -2-** - ***7. ASALA, D/O. LATE K.P. ABU.** - ***8. SADIYA, D/O. LATE K.P. ABU.** **ALL RESPONDENTS ARE RESIDING AT PUKKADAN VALAPPIL HOUSE, PANTHALAYANI AMSOM AND KOVILKANDY DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 305.** ***ADDL. R2 TO R8 ARE IMPLEADED AS PER ORDER IN I.A. NO. 1298/2012 DATED 9/7/2012.** **BY ADV. SRI.VARGHESE C.KURIAKOSE BY ADV.PRAVEEN K. JOY BY ADV. N. SREEJITH MAKALIYAM BY ADV. SRI.SANTHARAM.P** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2013, THE COURT ON 09-07-2013 PASSED THE FOLLOWING:** **Mn** ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **C.R.P.No.1475 of 2002** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 9th DAY OF JULY, 2013** ## **O R D E R** ## Ramachandran Nair, J. The tenant is the revision petitioner herein. This is a case where eviction was sought under Section 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act') by the landlord. The Rent Control Court dismissed the petition on the ground that the items of damage alleged and noted by the Commissioner are not of a material and permanent nature. The Appellate Authority reversed the same. 2. We heard learned counsel for the petitioner and learned counsel for the supplemental respondents. 3. Learned counsel for the petitioners submitted that all those noted by the Commissioner, are only certain minor items of damage to the building in the floor, walls verandah as well as the tiled roofing of the verandah. The remaining one reported is regarding the fixing of iron rods, pipes and clamps by the tenant in one of the walls for placing the materials in a wooden platform. It is submitted that all these items taken together cannot lead to a finding under Section 11(4)(ii) of the Act. It is submitted CRP No.1475/2002 -2- that the Appellate Authority has failed to appreciate the real aspects and therefore the judgment rendered by the Appellate Authority requires interference in revision. 4. In this context, we will refer to the pleadings in the eviction petition. The eviction petition was filed in the year 1999. It shows that the premises were rented out as per a registered rent deed dated 30.4.1992 of Koyilandy Sub Registry. The rent was fixed at Rs.150/- per month. The material averments have been made in paragraphs 5 and 6 of the petition whereby it is stated that the tenant is keeping old materials like bottles, plastic items, books, papers, chappals, iron materials, etc. etc. It is stated that without the permission of the landlord, the tenant has fitted clamps and is keeping the articles in a negligent manner whereby damage has been caused to the floor of the building. It is also stated that because of the rough use of iron materials including rusted materials total damage has been caused to the walls as well as to the floor. 5. The tenant, in the objection, stated that the damage with regard to the floor, etc. can only be attributed to the age of the building. It is stated by him that by forming platforms fitted with iron nails in the walls and keeping articles therein, no damage has been caused to the building. CRP No.1475/2002 -3- According to him, certain periodical maintenance could have been done by the landlord and whatever damage caused, it is only due to the ageing factor. 6. Both sides have referred to the report of the Commissioner. The Commissioner's report will show that the schedule building consists of one verandah and two rooms including one charu room. The floor of verandah and the main room is cemented. In the verandah cement is seen broken making ditches on the floor. A weighing machine is placed in the verandah and there are weighing stones for weighing, weighing balance and one or two gunny bags filled with old iron materials and plastics. The tenant is conducting business of stocking and selling of old iron materials, iron rods, plastics, glasses, tins, bottles, papers, etc. In pare 3 of the report, it is stated that in the main room rusted iron materials and plastic materials, papers, etc. are stored. On the east, north and western wall of the main room iron rods are seen pierced into the wall for making stands and on these stands also papers and other materials are stocked. On the walls the plaster is seen lost at many places and stones are seen outside. From the main room there is a door to enter into the charu room. This room is fully occupied by waste papers, glasses, bottles and other iron materials. It is stated that it was too CRP No.1475/2002 -4- difficult to stand inside the room because of the careless placing of the materials in each and every corner. On the northern and eastern walls of this room stands are made by fitting iron rods as in the main room. On the southern wall there are small holes and at several places plaster is seen lost. There is a crack on the south-western corner of the wall. There are broken tiles in the room also. Finally, it is stated that on the backside of the building, in the courtyard also old iron materials and plastics are kept in a heap. 7. Before going into the contentious issues, we will refer to the findings by the authorities below. The Rent Control Court, after referring to the materials placed on record, was of the view that the damage caused are not of a permanent character, and there is no damage to the structure of the building. 8. The Appellate Authority reversed the finding of the Rent Control Court by holding that the schedule rooms are being used by the respondent in such a manner so as to destroy and reduce its utility and value permanently. The above view was taken after considering the details of the Commission report. We extract para 10 of the judgment of the Appellate Authority in this context: CRP No.1475/2002 -5- “10. Ext.C1 Commissioner's report shows that the cemented floor of the verandah is broken thereby developing ditches on the floor. There is a large wooden door known as 'thappa' is between the verandah and the main room which is seen opened to the main room parallel to the floor and on this also waste materials like scrap items were seen carelessly placed. The wooden bolt of the said door became broken. On the eastern, northern and western walls of the main room, iron rods are seen pierced into the wall for making stands and on these stands also papers and other waste materials are seen stocked. On the walls, the plaster is seen lost at many places and stones are seen outside. On the northern and eastern walls of the verandah and rooms also, iron rods were affixed for making stands. On the southern wall there are small holes and at several places plastering are lost. There is a crack on the south western corner of the wall. The roof of the verandah is tiled and tiles were seen broken. From the verandah room there is a step and the plaster on the step is seen lost. Further Ext.C1 shows that on the roof of the rooms and on the corners of the walls full of cobwebs were seen. From the clear and detailed description given in Ext.C1, it has clearly come out that the scheduled rooms are being used by the respondent in a negligent manner. Iron rods are seen pierced in the walls and stands were affixed for keeping waste materials. Admittedly the building is an old one. In such a case, if such stands are affixed on the walls by piercing iron rods into the CRP No.1475/2002 -6- walls definitely it will weaken the whole structure of the building. Further even ditches have developed on the floor due to its negligent user. Scrap materials are being stored as heap on the floor. No doubt, the same has caused damage to the floor and the building. Whether the building is an old one or a new one the tenant is not expected to make use of the premises negligently. Even when the building is an old one, the tenant is not expected to make use of the building in such a way as to destroy or reduce its value and utility materially and permanently. The question is not whether such damage caused to the building can be repaired or not. From the impugned order, it can be seen that the court below has considered the evidence regarding such damage caused to the building, as if the R.C.P. is one filed under section 11(4)(iv) of the Act. The question involved in the present case is not whether the building requires reconstruction or renovation. The question to be considered is as to whether the building is being used or was used by the respondent in such a manner so as to destroy or reduce ts value and utility materially and permanently. From the evidence adduced by P.W.1 and the contents of Ext.C1, it has clearly come out that the scheduled rooms are being used by the respondent in such a manner so as to destroy or reduce its value and utility materially and permanently. The respondent cannot escape from the clutches of section 11(4)(ii) of the Act merely by forwarding a contention that the building is an old one and the damage CRP No.1475/2002 -7- caused to it can be repaired. From the discussions made above, it has clearly come out that the landlord in this case is entitled to get an order directing the tenant to put the landlord in possession of the scheduled rooms on the ground under section 11(4)(ii) of the Act. The court below has failed to appreciate the evidence in this case, in its correct perspective. The court below was carried away in treating the question involved in this RCP as one to be considered in an RCP under Section 11(4)(iv) of the Act. No doubt, the same has resulted in substantial miscarriage of justice and therefore the order under appeal is liable to be set aside. Point found accordingly.” 9. Learned counsel for the petitioner submitted that the requirements of the provision have not been satisfied even going by the evidence of the Commissioner. According to the learned counsel, the normal activities attempted by the tenant alone are there. He is doing the business in iron scrap and other scrap materials. Therefore, those materials are being kept in the building, verandah, etc. It is also the case of the petitioner that the nearby room was occupied by the landlord earlier for doing business in animal skin. It is also stated that even though it can be seen that the building is an old one, the same was being used for these types of business and not for any sophisticated items. CRP No.1475/2002 -8- 10. Both sides relied upon various judgments of this Court and Apex Court. In answer to the contentions raised by the learned counsel for the petitioner, learned counsel for the supplemental respondents submitted that the matter will have to be viewed from the point of view of the landlord. In Ext.A1 a prohibitory clause has been incorporated even at the time of letting out the building. The importance of the said clause cannot be ignored. It has been specified in the said clause that no items will be kept in the building which will cause damage to the building. Herein, various rusted iron articles, other similar items and other waste materials are being dumped without even arranging them. This has caused damage to the walls and the floor. It is submitted that the report of the Commissioner will show that even the walls have been damaged to the extent of losing the plasters at various places making the red-stone visible. Apart from the same, learned counsel for the landlord submitted that even the dumping of waste materials in heap outside the premises are also there. Since the entire premises will form part of the building, such activities which are not having any permission, should also get the attention of this Court. It is submitted that in the objection the tenant agreed that he had attached the platform to the walls by using iron nails. Therefore, the said admission alone will help CRP No.1475/2002 -9- the court to find that such activities have caused damage to the building, thereby reducing its value and utility permanently. It is submitted by the learned counsel that going by the report of the Commissioner it can be seen that iron rods have been pierced into the wall for making the platform. The significance of the same cannot be lost sight of as such activities have never been permitted and have resulted in reducing the value and utility of the building materially and permanently and has affected the structure also. It is in that context learned counsel submitted that the prohibitory covenant in Ext.A1 should be considered by this Court. 11. Learned counsel for the petitioner relied upon the following decisions: **Om Pal v. Anand Swarup** {(1988) 4 SCC 545}, **Mathew v. Gilbert** (1998 (2) KLT 19), **Aboobacker v. Nanu** (2001 (3) KLT 815), **Reghunathan G v. K.V. Varghese** (2005 (4) KLT 147 - SC), **Hari Rao v. N. Govindachari and others** (2005 (4) KLT 244 - SC) and **Sasidharan v. Edappayil Premalatha** (2009 (2) KLT SN 14). Learned counsel for the supplemental respondents relied upon the following decisions: **Vipin Kumar v. Roshan Lal Anand and others** (JT 1993 (3) SC 171), **Gurumoorthy Gopalakrishnan v. Lakshmi Bai** (2005 (1) KLT 256), **Francis v. Davis** (2005 (3) KLT 815) and **Mohanan v. Muhiyudheen** CRP No.1475/2002 -10- ## (2010 (1) KLT 512). 12. The first of the decisions relied upon by the learned counsel for the petitioner is of a learned Single Judge of this Court in **Mathew's case** (1998 (2) KLT 19). In the context of examining the plea under Section 11 (4)(ii) of the Act in para.5, it was stated that unless there is a positive act of waste established by the tenant, Section 11(4)(ii) of the Act may not be attracted. The said observation was made in the context of the pleadings of the case. Therein, the landlord contended that certain furniture hired out to the tenant along with the premises have disappeared, or have been misappropriated by the tenant and this would reduce the value and utility of the building so as to attract Section 11(4)(ii) of the Act. Finally, it was explained thus: “But on the other hand, if the landlord were able to prove that the tenant had pulled out the lights that were fixed in the room or had removed the fan fixed in the room or had deliberately destroyed or removed any other fixture in the property or an almirah or cupboard that was fixed, the provision in Section 11(4)(ii) may be attracted.” The said findings were rendered on the special facts of the case alone. 13. The next decision relied upon is **Om Pal's case** [1988 (4) SCC CRP No.1475/2002 -11- 545]. That was a case where the appellant put up a _parchhati_ in the shop for storing the clothes before and after dry cleaning. The _parchatti_ has been made to rest on the walls by means of wooden _ballis_ inserted in the wall through holes made therein. The Apex Court examined the question whether the acts of the tenant are of such a nature diminishing the value and utility of the building. In fact, the expert was examined as RW3 in that case, whose evidence was that the construction was only of a temporary nature which could be easily removed at any time without any damage being caused to the walls of the building. In para.9, the Apex Court has held as follows: “It would therefore follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.” With reference to the particular facts of the case, the following findings were rendered in para.10: “Having regard to the nature of the temporary construction put up by the appellant and the evidence of the expert witness examined by him which remain uncontroverted CRP No.1475/2002 -12- by any expert's evidence on the respondent's side, we find no difficulty in holding that the lower courts had rendered their findings without any basis for it and the High Court has erred in accepting those findings without applying the correct principles of law underlying S.13(2)(iii).” Therefore, on the evidence of the case, their Lordships held in favour of the tenant. 14. In **Aboobacker's case** ( **2001 (3) KLT 815)** , a Division Bench of this court had occasion to consider necessary ingredients of Section 11(4) (ii) of the Act. It was held in para.7 that “the expression 'materially and permanently' in clause (ii) of sub-r.(4) of the Act would certainly indicate that a landlord cannot get an order of eviction on that ground by mere proof of minor destruction, or alteration, even if it results in marginal reduction of value or utility”. In the report of the Commissioner produced therein it was mainly noted that damage was caused to the plastering of walls, cement flooring etc. and this Court held that the same will not be sufficient to attract the mischief of Section 11(4)(ii) of the Act. 15. **Reghunathan G's case** ( **2005 (4) KLT 147 (SC))** is a judgment of the Apex Court. There, the landlord's case was that by removing the door and the windows and by certain other acts like cutting of the rafters in the CRP No.1475/2002 -13- front to a length of two feet, lowering the level of the floor by one foot, erecting two pillars touching the walls and fixing a roller shutter in front of the shop, the ground under Section 11(4)(ii) of the Act is attracted. That was a case where the building was taken for the purpose of conducting a gold and silver jewellery shop. In para.12, Their Lordships held as follows: “From the above, it is clear that the question depends on the facts of the case. The nature of the building, the purpose of letting, the terms of the contract and the nature of the interference with the structure by the tenant, are all relevant. The destruction or damage has to be adjudged from the stand point of the landlord.” It was observed in para 13 that “the landlord had not proved the material and permanent impairment in value or utility” and, accordingly, it was held that the elements of Section 11(4)(ii) of the Act are not attracted. The said finding was rendered after elaborately considering the nature of the building as well as the nature of the trade, namely, jewellery trade. It was held that various acts have resulted in more security in the premises and even enhancement of value and utility could be assumed. 16. In **Hari Rao's case** ( **2005 (4) KLT 244 (SC))** , the allegation was that the landlord had put up new sign boards and fixed two additional CRP No.1475/2002 -14- racks by drilling holes in the walls and took independent three phase electricity connection for which holes have been drilled in the floor and in the wall and all this amounted to commission or causing the commission of such acts of waste as are likely to impair materially, the value or utility of the building. It was held in para.9 as follows: “It is true that for the purpose of his trade, the tenant fixed new racks by making holes in the floor, the walls and in the beams. But, in the absence of any other material, it cannot be said to be the commission of acts of waste as are likely to impair materially the value and utility of the building.” Finally,the Bench rejected the contention of the landlord with the following finding: “Therefore, the acts of the tenant established, are merely acts which are consistent with the needs of the tenant who has taken the premises on rent for the purpose of a trade in leather goods and shoes and in furtherance of the prospects of that trade. The fixing of racks inside the premises even by drilling holes in the walls or beams cannot be said to be acts which are themselves acts of waste as are likely to impair materially the value and utility of the building.” 17. In **Sasidharan's case** ( **2009 (2) KLT SN.14)** a Division Bench CRP No.1475/2002 -15- of this Court in para.9 held that the statutory requirement is that permanent reduction in the value and utility of the building is attributable to the user of the building by the tenant. The burden to allege and prove that the value and utility of the tenanted building has become reduced materially and permanently on account of user of the building by the tenant is on the landlord. The allegation was that the tenant, who run a wood industry in the building has been using machinery in a careless manner which has caused constant vibrations. 18. Learned counsel for the landlord relied upon the decision of the Apex Court **Vipin Kumar's case** (JT 1993 (3) SC 171) wherein in para 2 it has been held that “the impairment of the value or utility of the building is from the point of view of the landlord and not of the tenant.” The case considered therein arose under the Punjab Urban Rent Restriction Act, 1947. 19. The next decision is **Gurumoorthy Gopalakrishnan's case** (2005 (1) KLT 256) by a Division Bench of this Court. It was argued by the learned counsel for the respondents that when there is a clear prohibition under the rent deed that has got significance and the Division Bench in the said case has considered the effect of the same. In para 4 the Division CRP No.1475/2002 -16- Bench has stated that “Ext.A1 clearly prohibits additions or alterations or even repairs in the tenanted premises.” The above decision is also relied upon to contend that even with regard to the land uppurtenant to the petition schedule building, if activities are done by the tenant to reduce its value and utility, that also can be considered. In para 7 the Division Bench, after examining Section 2(1)(a), viz. The definition of building and Section 11(4)(ii) of the Act, has held as follows: “When we read S. 11 (4)(ii) along with S.2(1)(a), it is evident that S. 11(4)(ii) takes in not only the building but the garden, grounds, wells, tanks and structure, if any, appurtenant to such building, hut, or part of such building or hut and let or to be let along with such building. Therefore in a given case if the landlord could establish that the tenant has used the land appurtenant to the building which has been leased out in such a manner as to destroy or reduce its value and utility materially and permanently, landlord would have cause of action. In other words, user of the building proper in such a manner as to reduce or destroy its value and utility materially and permanently is not the only ground for eviction under S, 11 (4)(ii) of the Act, but user of the garden, grounds, wells, tanks and structures, if any, appurtenant to such building in such a manner as to destroy or reduce its value and utility materially and permanently also would attract S. 11(4)(ii) of the Act.” CRP No.1475/2002 -17- In para 8, the decision of the Apex Court in **Vipinkumar's case** (JT 1993 (3) SC 171) was relied upon and the following view has been taken: “8. The Apex Court in _Vipinkumar v. Roshan Lal Anand & Ors.,_ 1993 (3) JT SC 171, held that the question whether tenant has used the building in such a manner as to reduce its value and utility materially and permanently has to be judged from the point of view of the landlord and not from the point of view of the tenant or any one else. Therefore we have to examine whether the construction effected on the premises appurtenant to the tenanted building has the effect of reducing or destroying the value and utility of the building/premises materially and permanently from, the point of view of the landlord. We have already indicated there is specific restriction in Ext.Al koolie kychit against the tenant carrying on any material alteration, addition or construction in the premises. Landlord asserted that the tenant has used the building in such a manner as to destroy or reduce its value and utility materially and permanently. Tenant has to show otherwise. The Court has to come to a conclusion on the basis of materials made available to it by either side as to whether the conduct of the tenant is such that by the user of the premises/building the value and utility of the building or the ground appurtenant thereto has been reduced materially and permanently. Facts would evidently show that the tenant has not received any consent from the landlord before CRP No.1475/2002 -18- ## effecting the construction.” 20. In **Francis's case** (2005 (3) KLT 815) also, the relevant clause in the lease deed prohibiting construction or alteration was relied upon by the Division Bench. In paragraphs 18, 19 and 20 the principles have been stated thus: “18. The contention of the tenant that by the construction in question, the value and utility of the building have increased is not liable to be accepted. The question to be enquired under S.11(4)(ii) is not whether the value or utility is increased. The impairment of the value or utility of the building is to be considered in the point of the view of the landlord. A similar contention raised by a tenant was negatived by this Court in 2003 (1) KLT 391. 19. The contention raised by the counsel for the tenants that the prohibition in the lease deed against the tenant making any construction is not relevant in dealing with a case under S.11(4) (ii), in our view, is unsustainable. The said stipulation in the rent deed has relevance while considering what is the point of view of the landlord with respect to the utility of the building. The views of the landlord on this aspect are manifested by such a stipulation in the rent deed. The views of different landlords may be different. A particular landlord may not consider it a material alteration of the building if the tenant makes some CRP No.1475/2002 -19- additions or alterations to the tenanted building, while another landlord may have a different view. Lease, whether of land or of building, is a contract between the lessor and lessee. The parties to the contract may agree on the terms of lease and any term which is not unlawful and not against public policy can be incorporated in the lease deed. 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 the ingredients of S.11(4)(ii) would not render the tenant liable to be evicted under the Act, even 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, the stipulations in the lease deed are relevant. 20........................ In our view, S.11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act is wider in its scope and ambit than the provisions in the U.P.Acts referred to above, in view of the expression "the tenant uses the building" in S.11 (4)(ii) of the Act. The prohibition in the lease deed against the tenant in making construction has certainly relevance while considering the question how the "use" of the building by the tenant was. S.108(p) of the Transfer of Property Act provides that the lessee "must not, without the lessor's consent, erect on CRP No.1475/2002 -20- the property any permanent structure, except for agricultural purposes". The stipulation in the lease deed that the tenant shall not construct is valid in view of S.108(p) of the Transfer of Property Act and it is relevant while considering the case under S.11(4)(ii) of the Act.” Various judgments of this Court and the Apex Court have been considered. Therefore, the prohibition in the rent deed will have its own importance while appreciating the matter. 21. Reliance is placed on **Mohanan's case** (2010 (1) KLT 512) wherein also in Ext.A1 agreement there was a restriction clause restraining the tenant from causing any damage the building, compound wall and gate. While explaining the legal position, the Division Bench relied upon the earlier Bench decision in **Francis's case** (2005 (3) KLT 815) and held as follows in para 9: “The value or utility of the building is to be considered in the point of view of the landlords and stipulations in the lease deed restraining the tenants from making additional constructions, is binding on the tenants. In the case at hand there is a clear stipulation in Ext.Al lease deed restraining the tenants from causing damage to the building, compound wall, and the gate. Considered through the perspective of the landlords there is CRP No.1475/2002 -21- flagrant violation of the conditions stipulated in the lease. As far as an immovable property is concerned, compound wall demarcating its boundary as well as gate put on for access to that land from the public road, are material structures, destruction of which will definitely affect value and utility of the land. Demolition of compound wall on any of its boundaries will affect security of the property as well as its identity, no matter whether demarcation of the boundary is fully obliterated or not. These alterations in the perspective of the tenants may be termed as advantageous and not material. Contention of the tenants is that in practical usage of the premises for the purpose for which the lease is created, it is not affecting convenience or utility adversely. But for considering as to what will be the perspective of the landlords, we need to take note of the stipulations in the lease, which contains an express restrain from causing such damage. Therefore viewed in the perspective of the landlords, such alterations which are having direct impact on the value and utility of the demised property which were specifically restrained by terms of the lease, definitely it is to be held as a material alterations affecting value and utility of the property.” 22. We have to consider the various aspects in the light of the above principles also. Herein, in Ext.A1 there is a clear restriction prohibiting the tenant from keeping any articles which may cause damage to the building. We have already referred to the report of the Commissioner and the relevant CRP No.1475/2002 -22- findings rendered by the Appellate Authority. Even though it is contended by the learned counsel for the petitioner that the construction of platform for keeping articles will not cause any damage, the Appellate Authority's view, after referring to the relevant evidence, is that iron rods have been pierced in the walls and stands were affixed for keeping waste materials which will weaken the whole structure of the building, as the same is an old one. Various other aspects have also been referred to by the Appellate Authority. 23. The question is whether the view taken by the Appellate Authority is so perverse warranting interference in this revision. Clearly, in the light of the restrictive clause in Ext.A1, the tenant cannot indulge in such activities. Apart from the same, even from the Commission report it can be seen that even in the open ground so many articles have been kept in a disorderly manner. The same also, in the light of the principles stated in **Gurumoorthy Gopalakrishnan's case** (2005 (1) KLT 256) cannot come to the aid of the tenant and will favour the contentions of the landlord. The matter will have to be considered from the point of view of the landlord, which principle has been reiterated in the decision relied upon by the learned counsel for the landlord, viz. **Vipin Kumar's case** (JT 1993 (3) SC CRP No.1475/2002 -23- 171) which was followed by this Court in **Gurumoorthy Gopalakrishnan's case** (supra). 24. In that view of the matter, we are of the view that the activities of the tenant will attract the provisions under Section 11(4)(ii) of the Act. The evidence will show that the tenant drilled holes on the walls and pipes clamps and iron rods have been fitted without the knowledge and consent of the landlord. There is dumping of old iron materials which has caused damage to the reapers and rafters of the roof and tiles have been broken. The wooden bolt of the door also broken. Apart from that, cracks are developed on the south western corner of the wall and outside tiles are completely broken. The Appellate Authority was therefore right in holding that the schedule rooms are being used by the tenant in a negligent manner. The building is an old one also. In many places, ditches are developed on the floor because of the use of the materials in a negligent manner and scrap materials are being stored in heap on the floor. It is evident that the tenant has not been using the building in an orderly manner. The Appellate Authority's finding that this has resulted in reducing the value and utility permanently, cannot therefore be said to be irrational or improper for any reason. CRP No.1475/2002 -24- Accordingly, we dismiss the revision petition confirming the order passed by the Appellate Authority. The tenant is granted time upto 31.12.2013 to vacate the petition schedule building on the following conditions: i) The entire arrears of rent as on today will be paid/deposited within one month. If such deposit is made, the same will be disbursed to the respondent; ii) An affidavit will be filed by the petitioner before the Rent Control Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court. iii) The petitioner will continue to pay at the same monthly rate for the use and occupation of the building till vacant peaceful possession is handed over to the respondent; If the above conditions are not satisfied, the petitioner will not get the benefit of this order. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** kav/ CRP No.1475/2002 -25- **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.1475 of 2002** **- - - - - - - - - - - - - - - - - - - - - - - - - -** **O R D E R** **9th DAY OF JULY, 2013**