Meethale Parambath Chandran v. C. Muhammed

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 3RD DAY OF MARCH 2017/12TH PHALGUNA, 1938** **RCRev..No. 328 of 2016 -----------------------RCA 116/2014 OF DISTRICT COURT, THALASSERY RCP 131/2012 OF MUNSIFF COURT, THALASSERY ---------------** **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-----------------------------------------** **MEETHALE PARAMBATH CHANDRAN, S/O.ANANDAN, AGED 50 YEARS, BUSINESS, SAHYADRI ENTERPRISES, BUS STAND ROAD, PANOOR PO, PANOOR, THALASERY TALUK, KANNUR DISTRICT, PIN 670 692.** **BY ADVS.SRI.K.S.BHARATHAN SRI.B.C.MENON SMT.S.ANJUSHA** **RESPONDENT(S)/RESPONDENT/PETITIONER:** **-----------------------------------** **C.T.MUHAMMED, S/O.LATE MAMMU, AGED 67 YEARS, BUSINESS, RESIDING AT SUHAS, KUTTIMAKKOOL, THALASERY TALUK, KANNUR DISTRICT 670 101.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **K.HARILAL & RAJA VIJAYARAGHAVAN, V., JJ. -----------------------------------------------------R.C.R. No.328 of 2016** ## **-----------------------------------------------------Dated this the 3[rd] day of March, 2017** **O R D E R -----------** ## _**Harilal, J.**_ - 1.The revision petitioner herein/ respondent is the tenant who suffered the concurrent verdict of the courts below granting the order of eviction under section 11(3) and 11 (4)(ii) of the Kerala Building (Lease and Rent Control) Act (hereinafter referred to as 'the Act' for short) to the respondent herein/petitioner/Landlord. - 2.According to the respondent herein/petitioner, he bona fide needs the petition schedule shop room for starting a stationery and fancy store for his son by name Noufal. The said Noufal is an unmarried, unemployed youth seeking any kind of avocation for his livelihood. He is not in possession of any other vacant rooms of his own so as to start the aforesaid business. The income derived from the R.C.R. No.328 of 2016 2 business in the petition schedule room is not the main source of income of the revision petitioner/respondent. The revision petitioner/respondent has acquired a building at Bangalore. He shifted his business to Bangalore and thereafter he sublet the petition schedule shop room to a third party and now the sub lessee is conducting an optical shop in the petition schedule shop room. Further, it is averred that the revision petitioner/respondent has constructed a new platform inside the room, divided the room into two by fixing iron beams and pillars and thereby caused damage to the walls and structures and the said alteration reduced the value and utility of the building materially and permanently, in violation of the terms of entrustment. 3.The revision petitioner/respondent denied the bona fide need put forward by the respondent/petitioner and according to the revision petitioner/respondent, the need projected is a ruse for eviction only. The R.C.R. No.328 of 2016 3 respondent/petitioner himself enhanced the rent and demanded Rs.2,000/- per month as rent but the revision petitioner/respondent refused to pay rent at the said enhanced rate. According to revision petitioner/respondent, the son of the respondent/petitioner is not a dependent of the respondent/petitioner. 4.Earlier the respondent/petitioner has filed R.C.P. No.47 of 2007 for eviction and subsequently the said petition was compromised, when the revision petitioner/respondent agreed to enhance the rent to Rs.800/- from Rs.500/-. According to revision petitioner/respondent, the income from the optical shop is the main source of income and he is mainly depending upon the income from the optical shop. He denied the allegation that he has made material and permanent alterations in the petition schedule shop room so as to cause reduction of the value and utility of the petition schedule shop room and that he has violated R.C.R. No.328 of 2016 4 - the terms of agreement. Further, he denied the allegation that he is conducting bakery business at Bangalore, as alleged by the respondent/petitioner. Earlier, the revision petitioner/respondent was conducting STD booth and photostat unit in the petition schedule shop room and later he himself started optical business, after making some alterations in the petition schedule shop room for that business and he had spent more than Rs.3,00,000/for the said alteration. - 5.On the aforesaid rival pleadings, both parties adduce evidence consists of oral testimony of PW1, RW1, CW1 and Exts.A1 to A7, Exts.B1 to B24 and Exts.C1 to C4. After evaluating the evidence on record, the Rent Controller allowed the petition as prayed for. - 6.Though, the revision petitioner/respondent has preferred appeal, the Appellate Authority also after re-appreciating the evidence on record, concurred with the findings of the Rent Controller. Thus the illegality, impropriety and R.C.R. No.328 of 2016 5 irregularity of the concurrent findings, in the impugned judgment of the court below, have been challenged in this revision petition filed under section 20 of the Act. - 7.Heard the learned counsel appearing for the revision petitioner/respondent as well as the respondent/petitioner. 8.The sum and substance of the argument advanced by the learned counsel for the revision petitioner/respondent is that the courts below have concurrently went wrong by arriving at a finding that the alterations made by him inside the petition schedule shop room are material and permanent and thereby the value and utility of the petition schedule shop room had been reduced. Secondly, it is contended that the non-examination of the respondent/petitioner is fatal and by the non examination, the respondent/petitioner has miserably failed to prove the dependency of the respondent's son on him for the shop room. R.C.R. No.328 of 2016 6 9.Per contra, the learned counsel appearing for the respondent/petitioner advanced arguments to justify the concurrent findings of the court below that the need is a bona fide one and the alterations made by the revision petitioner/respondent are material and permanent alterations causing reduction of the value and utility of the shop room. According to the learned counsel, the examination of the son, for whose bona fide need the eviction is sought for, is more than sufficient to prove the dependency as well as the bona fide need and the non examination of the respondent/petitioner is not fatal. It is also contended that Ext.C1 report and Ext.C2 sketch would unambiguously prove that the alterations admittedly made in the petition schedule shop room are material and permanent alterations causing reduction of value and utility of the shop room. 10.The landlord-tenant relationship is not disputed. It is the case of the respondent/petitioner that his son Noufal is R.C.R. No.328 of 2016 7 unmarried and unemployed youth seeking avocation for his livelihood. On the other hand, the revision petitioner/respondent contended that he is employed and conducting business at Bangalore. Going by the counter statements filed by the revision petitioner/respondent it is seen that the said contention is a mere assertion, which lacks particulars, as the identity of the institution in which the son of the respondent/petitioner is employed at Bangalore is not disclosed in the pleadings. Though, it was contended that he is conducting business at Bangalore, when he was cross-examined as RW1 it has come out in evidence that the son who is conducting business is not Noufal and it was another son of the respondent/petitioner. Therefore the revision petitioner/respondent miserably failed to substantiate his contention that the son of the respondent/petitioner is employed or conducting business at Bangalore. This Court in **Ismail v. Kesavan** (2004 (2) KLT 56) held that the R.C.R. No.328 of 2016 8 dependency means dependency for the building which belongs to the landlord and not the financial dependency. In the above analysis, the court below was justified in finding that the son of the respondent/petitioner by name Noufal is depending on the respondent/petitioner for the room from which the revision petitioner/respondent is sought to be evicted. 11.The learned counsel for the revision petitioner/respondent vehemently contended that the non examination of the respondent/petitioner is fatal. Going by the order passed by the trial court, it could be seen that the son, for whose bona fide need the petition was filed, was examined as PW1 and he was cross-examined touching the bona fide need and dependency; but nothing was brought out to discredit his version. As regards the first proviso, nothing was brought out in crossexamination to establish that either the respondent/petitioner or PW1 was in possession of any R.C.R. No.328 of 2016 9 vacant room for starting the said business at the time of filing the petition. 12.At this juncture, the decision relied on by this Court in **Subramaniyan Pillai and Others v. M.Shamsar Jihan and Others** (2009 (1) KLT 425) assumes much relevancy and significance. That was a case wherein the power of attorney holder was examined instead of landladies. There, this Court held that the question of bona fide need is a matter to be inferred by a court in an objective manner on an assessment of the materials produced and the non-examination of the landladies in any way is not fatal to the case. When comparing the facts of the case referred above with the facts of the instant case, we are of the opinion that the examination of the dependent himself would stand at a better footing than the examination of power of attorney holder. Therefore we find that the nonexamination of landlord was not fatal to determination of the genuineness of the need and dependency. R.C.R. No.328 of 2016 10 13.Coming to the material alteration allegedly made by the revision petitioner/respondent, it stands admitted that he had made certain alterations in the petition schedule shop room so as to make it suitable for starting the sale of opticals. It has come out in evidence that a single room alone was let out to him and he had divided the room into two by partitioning the same and made further alterations by making additional sealing, additional floor, stair case to the additional floor etc. - 14.In Ext.C1 report, the Commissioner, who inspected the petition schedule shop room on the date of filing the petition, reported that all the alterations are made using steal beams and several holes were made in the walls using drilling machines. On a mere reading of the Commission report itself anybody could understand that the alterations admittedly made by the revision petitioner/respondent are material and permanent alterations. R.C.R. No.328 of 2016 11 15.Then, the point to be considered is whether the material and permanent alterations would reduce the value and utility of the petition schedule room. This point has to be considered in the light of the decision of this Court in **Iritti Co-operative Hospital Society Ltd. v. C.C.Damodaran and Another** (2010 (3) KLT 823) wherein it was held that value and utility of the tenanted building for the purpose of section 11(4)(ii) are aspects to be considered through the perspective of the landlord. The material alteration made by the tenant unauthorisedly may be advantageous to the tenant or to several others who may occupy the building for various purpose. But if the landlord wanted to utilise or retain the building in its original form, his complaint regarding alteration of the building may in a given case be valid enough for establishing the ground under section 11(4)(ii). In the instant case, admittedly the aforesaid alterations are made in violation of the express terms of the agreement, R.C.R. No.328 of 2016 12 without the consent of the landlord. 16.In the instant case also, though the revision petitioner/respondent has allegedly spent more than Rs.3,00,000/-, the entire alterations were made inside the room and it cannot be held that those alterations were made to strengthen the building or to give any advantage to the building or to enhance the utility of the building. That apart, the courts below after evaluating the Commission report and the oral testimony of the Commissioner as CW1 concurrently held that the alterations would reduce the value and utility of the building. At this juncture, we would remind ourselves the limited jurisdiction of this Court to interfere with the factual findings concurrently entered by the courts below. Needless to say, the revisional powers is the power of superintendence and this Court should not interfere with the concurrent findings of fact of the subordinate courts merely because this Court does not agree with the said R.C.R. No.328 of 2016 13 findings. The aforesaid view of the Supreme Court in **Anthappai v. Ahammed** (AIR 1992 SC 1696) would justify the view taken by us. Therefore, in the absence of any kind of illegality or impropriety or irregularity, we are inclined to confirm the concurrent findings of the courts below and we do so. - 17.At last, the learned counsel appearing for the revision petitioner/respondent sought for some time to vacate the petition schedule shop room. The same is granted on the following conditions: - (i) The revision petitioner/respondent shall file an affidavit before the Rent Controller within two weeks from the date of receipt of the copy of this order expressing his readiness and willingness to surrender the vacant shop room before the court, within a period of three months from today. - (ii) The revision petitioner/respondent shall deposit the entire arrears of rent, if any, within one month from the R.C.R. No.328 of 2016 14 date of receipt of this order and shall continue to pay the rent, without default. (iii) In the event of failure, the time granted to vacate the premises will stand automatically cancelled and the petitioner/respondent will be at liberty to proceed with the execution. **Sd/-** **K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** vps