R.C.REV.NO.278 OF 2019

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ``` R.C.REV.NO.278OF 2019 ``` ``` AGAINST THE JUDGMENT DATED 22.06.2018 OF HON'BLE ``` ``` RENT CONTROL APPELLATE AUTHORITY – III ``` ``` (ADDL.DISTRICT COURT – III), THIRUVANANTHAPURAM IN R.C.A NO.11 OF 2016, ARISING FROM ORDER DATED 30.11.2015 OF HON'BLE RENT CONTROL COURT, ADDITIONAL MUNSIFF (RCC), THIRUVANANTHAPURAM IN R.C.P. No.64 OF 2012 ``` ## **`REVISION PETITIONERS:`** ``` 1 K.M.ASHRAF AGED 48 YEARS ``` ``` S/O.M.M.KASSIM, T.C.38/204, PHOENIX, POWER HOUSE ROAD, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM - 695 036 ``` ``` 2 K.M.ARIF AGED 51 YEARS ``` ``` S/O.M.M.KASSIM, GLASS HOUSE, KOCHAR ROAD, CHALA P.O., THIRUVANANTHAPURAM - 695 036 ``` ``` BY ADVS. AYYAPPAN SANKAR SRI.JAYAN JOHN SMT.S.HRIDYA ``` 2 ## **`R.C.REV.NO.278 OF 2019`** ## **`RESPONDENTS:`** - **`1 SHAHULHAMEED AGED ABOUT 59 YEARS`** ``` S/O.MOHAMMED KANNU HAJIYAR, RESIDING AT PAP MANZIL, MANACAUD VILLAGE, MANACAUD P.O., THIRUVANANTHAPURAM - 695 009 ``` - **`2 HABEEB RAHMAN AGED ABOUT 46 YEARS`** ``` S/O.MOHAMMED KANNU HAJIYAR, RESIDING AT PAP MANZIL, MANACAUD VILLAGE, MANACAUD P.O., THIRUVANANTHAPURAM - 695 009 ``` ``` *3 ADDL.R3.SHANIMA SHAHUL AGED 56 YEARS , W/O.SHAHUL HAMEED, RESIDING AT TRA 77, PAP MANZIL,MANACAUD, THIRUVANANTHAPURAM-695009 ``` ``` *4 ADDL.R4.SHABNAM SHAHUL LIJASH D/O.SHAHUL HAMEED, RESIDING AT TRA 77, PAP MANZIL,MANACAUD, THIRUVANANTHAPURAM-695009 ``` ``` *5 ADDL.R5.SAJINAM SHAHUL D/O.SHAHUL HAMEED, RESIDING AT TRA 77, PAP MANZIL,MANACAUD, THIRUVANANTHAPURAM-695009 *6 ADDL.R6.MOHAMMED SHAHUL S/O.SHAHUL HAMEED, RESIDING AT TRA 77, PAP MANZIL, ``` 3 ## **`R.C.REV.NO.278 OF 2019`** ``` MANACAUD, THIRUVANANTHAPURAM-695009 ``` - **`*7 ADDL.R7.AYISHA BEEVI`** ``` M/O.SHAHUL HAMEED, RESIDING AT TRA 77, PAP MANZIL,MANACAUD, THIRUVANANTHAPURAM-695009 ``` ``` (ARE IMPLEADED AS ADDL R3 TO R7 AS PER ORDER DATED 4/2/2021 IN I.A.NO.2/2021 IN RCR NO.278/2019 ``` ``` BY ADVS. SRI.D.KISHORE SRI.R.MURALEEKRISHNAN (MALAKKARA) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.08.2022, THE COURT ON 19.09.2022 DELIVERED THE FOLLOWING: ``` 4 ``` R.C.REV.NO.278 OF 2019 ``` ## **O R D E R** ## Ajithkumar, J Tenants are the revision petitioners. Respondents - landlords filed R.C.P No.64 of 2012 before the Rent Control Court (Addl. Munisff), Thiruvananthapuram seeking eviction under Section 11(2)(b), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings Lease and Rent Control Act, 1965. Rent Control Court ordered eviction under Section 11(2)(b) and 11(4)(ii) of the Act. The petitioners preferred an appeal under Section 18(1)(b) of the Act. The Appellate Authority (Addl. District Judge-III), Thiruvananthapuram set aside the order of eviction under Section 11(2)(b) of the Act and confirmed the order of eviction under Section 11(4)(ii) of the Act. Petitioners challenge propriety, legality, and regularity of the order of eviction in this revision filed under Section 20 of the Act. 2. On 30.07.2019, this revision was admitted to file and as per order in I.A No.1 of 2019, interim stay of execution was granted initially for a period of three months. The order of stay was extended from time to time and is in 5 ## **`R.C.REV.NO.278 OF 2019`** force. 3. Heard the learned counsel appearing for the petitioners and also the respondents. 4. Now, the dispute between the parties is in a narrow compass. The petition schedule premises comprises three shop rooms. The facts that doors were installed on the northern wall of the building and a shed was erected in the backyard are undisputed. The petitioners raised two-pronged contentions; firstly the said changes were carried out with the consent of the respondents, secondly, the modifications do not amount to any material or permanent alteration affecting the value or utility of the petition schedule building. The Rent Control Court held that providing of doors, as well as erection of the shed in the backyard, amounted to material alteration of permanent nature which falls within the mischief of section 11(4)(ii) of the Act. The Appellate Authority, however, took a different view and held that the installation of doors did not reduce or destroy the value or utility of the building, whereas the erection of the shed did amount to material alteration reducing the value and utility 6 ``` R.C.REV.NO.278 OF 2019 ``` ## of the building permanently. 5. The learned counsel appearing for the petitioners would contend that the only question now requires consideration is whether the erection of such a shed would invite action under Section 11(4)(ii) of the Act. In the view of the learned counsel, the backyard of the building does not form part of the tenanted premises and even on finding that the petitioners put up a temporary, semi-permanent or permanent structure, that would not give a cause of action for eviction under Section 11(4)(ii) of the Act. 6. The petitioners are in occupation of three shop rooms. Along the middle of those shop rooms, there is a passage enabling access to the backyard. The petitioner availed one room first and the other two rooms subsequently on rent. It is contended that the said three rooms alone are the subject matter of the tenancy and the open land on the hind side where the shed in question was constructed has a separate identity and therefore the same would not form part of the building as defined in Section 2(1) of the Act. 7. The respondents categorically alleged that without 7 ``` R.C.REV.NO.278 OF 2019 ``` their consent or knowledge, doors were installed in the northern wall of the petition schedule shop rooms and constructed a permanent structure behind the shop rooms. Petitioners on the other hand would contend that after receiving Rs.3 lakhs from them the respondents consented to carry out the modifications and additions. When the landlords contend that the modifications and additions are unauthorised, and in answer, the tenants maintain that there was an agreement in that matter, it has become the absolute burden of the tenants to prove existence of that agreement. The evidence in that regard is the oral testimony of CPW1. He is the 1[st] petitioner. His oral assertions unsupported by any other evidence is not enough to prove that there existed an agreement between the parties. The Courts below after considering the entire evidence on that aspect concluded that the petitioners carried out the modifications and additions without any consent or knowledge of the respondents. We find no reason to interfere with the said findings. 8. CPW4 is the Commissioner. Ext.C1 is the report 8 ``` R.C.REV.NO.278 OF 2019 ``` filed by the Commissioner. The Commissioner described the construction on the backyard of the petition schedule shop rooms as follows.: ‘The shed is having 50 feet length, 30 feet width and 16 feet height and roofing made out of G.I Sheet. There was another shed having 30 feet length, 12 feet width, with GI sheet roofing and these sheds were being used for the business purpose of the tenants and it contained glass cutting table, motor, compressor, equipments etc.’ 9. The petitioners have installed two doors on the wall on the northern side of the shop rooms as well. The concurrent findings of the courts below is that the backyard is an interal part of the building which is the subject matter of the tenancy and the construction carried out thereon will amount to alteration to the tenanted premises. ## 10. This Court in **Gurumoorthy Gopalakrishnan v.** **Lakshmi Bai [2005(1)KLT 256]** held that when we read Section 11(4)(ii) along with Section 2(1)(a), it is evident that Section 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 9 ``` R.C.REV.NO.278 OF 2019 ``` 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 Section 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 Section 11(4)(ii) of the Act. 11. The contention of the petitioners that the open land on the backside of the petition schedule shop rooms has a separate identity and the same cannot be treated as the integral part of the tenanted premises. The three shop rooms are on the front portion of the land which abuts the public road. There is a passage along the middle of the tenanted premises. Of course, one can reach the backyard 10 ``` R.C.REV.NO.278 OF 2019 ``` along that passage, but when the entire front portion of the land is occupied by the building and the backyard could be put to use advantageously by the occupants of the said building, the tenant cannot contend that the backyard area is not the land appurtenant to the building. While occupying the tenanted shop rooms, the petitioners installed doors on the backside wall thereby gained direct access to that open land. Further, they had put up apparently a semi-permanent structure attaching to the existing building for the activities in extension of their hardware business in the tenanted building. In such circumstances, the petitioners cannot contend that the backyard has a separate entity and cannot be a part of the tenanted premises. 12. The Apex Court in **Reghunathan G v. K.V.Varghese** [ **2005 (7) SCC 317]** , while considering the question, what amounts to material alteration of permanent nature held: “The question depends on the facts of the case. The nature of the building, the purpose of the letting, the terms of the contract and the nature of the interference with the structure by the tenant, are all relevant. The destruction or 11 ``` R.C.REV.NO.278 OF 2019 ``` damage has to be adjudged from the standpoint of the landlord.” 13. In **Omprakash v. Amar Singh [AIR 1987 SC** **617]** , the Apex Court held that the question, whether a construction materially altered the building is a mixed question of fact and law. ## 14. This Court in **Michael v.Paramara Group Devaswom [2006 (1) KLT 979]** held: "The tenants have encroached into open places and made unauthorised constructions covering the open area by making alterations and additions to the structure. Though it was contended that by the additions, the value of the building has increased; so far as the landlord is concerned, it has been deprived of the vacant space outside the original building. As held by the Supreme Court in **Vipin Kumar v. Roshan** **Lal Anand [(1993) 2 SCC 614]** the impairment should be viewed from the point of view of the landlord and not of the tenant. Construction of a wall and putting up of a door were found by the Supreme Court to be sufficient to infer that the value or utility of the building has been materially affected. The same view has been taken by a Division Bench of this Court in **Seethalakshmi Ammal v. Nabeesath Beevi** 12 ``` R.C.REV.NO.278 OF 2019 ``` ## **[2003 (1) KLT 391]** 15. Here, the question is whether installation of two doors and erection of a shed having 50 feet length, 30 feet width and 60 feet height made up of GI sheet and also another shed having 30 feet length and 12 feet width amounted to alteration to the building reducing its value and utility permanently and materially. 16. In the perspective of the respondents the said modifications and additions permanently impaired the utility of their building. The owner of a building may have many plans with respect to his building. The tenanted premises abuts the public road. When doors are installed on the wall on the backside, one cannot say that that would not affect the safety and security of the building. It is a two-storeyed building. When a portion of the wall has been removed for installation of the doors it inevitably will affect the stability of the building. In that view of the matter, installation of the doors certainly affects the value of the building and it is of a permanent nature. The Appellate Authority did not accept that case of the respondents. That being a finding only, this Court can interfere with the said finding even in the absence 13 ``` R.C.REV.NO.278 OF 2019 ``` of a cross objection. Hence we reverse the finding of the Appellate Authority. 17. With regard to the sheds the petitioners have erected, the findings of the courts below are concurrent. We have pointed out above the nature of the said construction, It covers the entire backyard of the building. Rafters of the shed pierced the wall of the building. Even if the said sheds are removed, the adverse impact on the building resulted by such construction shall be there. Further, utility of the backyard has been materially reduced and in that view, it can only be said that the findings of the courts below are not wrong or illegal entitling this Court to interfere. 18. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot 14 ``` R.C.REV.NO.278 OF 2019 ``` enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. ## 19. In **Hindustan Petroleum Corporation Limited** **v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to 15 ``` R.C.REV.NO.278 OF 2019 ``` act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 20. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court - could not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 21. In the light of the law laid down in the aforesaid decisions, we find that the order of eviction concurrently rendered by the courts below under Section 11(4)(ii) of the 16 ``` R.C.REV.NO.278 OF 2019 ``` Act needs no interference. Resultantly, this revision fails and it is dismissed. 22. At the time of pronouncement of the order, the learned counsel for the petitioners has made a request to afford four months' time for vacating the premises. The learned counsel for the respondents is agreeable to grant four months’ time. 23. Having considered all the aspects, we deem it appropriate to grant four months’ time to surrender vacant possession of the petition schedule building, subject to the following conditions: - (i) The respondents-tenants in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further he shall conduct any business in the 17 ``` R.C.REV.NO.278 OF 2019 ``` petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondentstenants in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** PV