Santamma v. V. Lalitha & V. Sundar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 RCRev..No. 146 of 2010() -----------------------RCA.17/2006 OF RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.1/2004 OF RENT CONTROL COURT, KARUNAGAPPALLY .................... ## REVISION PETITIONER/ APPELLANT/RESPONDENTS -------------------------------------------------------------------------------- SANTHAMMA, D/O. THANKAMMA, LAVANYA, MATUTHOORKULANGARA NORTH, KARUNAGAPPALLY, FROM KANEZHATHU VEEDU, KOTTAKKAKOM MURI, CHAVARA VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------- 1. V. LALITHA, JASMINE HOUSE, CONVENT SQUARE, ALAPPUZHA, FROM KUMARAVILASOM BUNGLOW, PALACE ROAD, ALAPPUZHA. 2. V. SUNDAR, JASMINE HOUSE, CONVENT SQUARE, ALAPPUZHA, FROM KUMARAVILASOM BUNGLOW, PALACE ROAD, ALAPPUZHA. ADV. SRI.JOMY GEORGE FOR R1 & 2 SRI.M.J.BENNY FOR R1 & 2 SRI.SEBASTIAN THOMAS FOR R1 & 2 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15-3-2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------- RCR. No. 146 of 2010 ----------------------------------------------Dated this the 15th day of March, 2011 ## **O R D E R** ## **Pius C.Kuriakose, J.** Under challenge in this revision filed under Section 20 of Act 2 of 1965 by the tenant is the order of eviction concurrently passed against the tenant by the Rent Control Court and the Appellate Authority on the ground of misuser of the building under Section 11(4)(ii) of Act 2 of 1965. The landlord had invoked the ground of arrears of rent also for evicting the revision petitioner. But as the order declining eviction on the ground of arrears of rent has attained finality, in this revision, we need have to be concerned only RCR.146/10 -2- with the ground Section 11(4)(ii). The material allegation of the landlord in the context of the ground under Section 11(4)(ii) was that the petition schedule premises are four shop rooms in a building having as many as six shop rooms. Apart from the building, there was a thatched shed also in the premises and that was also covered by the lease in favour of the tenant. In addition to the four rooms, a concrete hall was also constructed and let out to the revision petitioner and thus the lease takes in the above hall also. On 10-7-2000 the tenant's husband committed suicide in one of the shop rooms covered by the lease. Thereafter, the tenant closed two other rooms covered by the lease deed by using asbestos sheets. Apart from that, without obtaining consent from the landlord, the tenant constructed a toilet inside the building. The action of the tenant has resulted in reduction of the value and utility of the buildings covered by the lease materially and permanently. RCR.146/10 -3- Moreover, the tenant has converted the appurtenant to the building as area for parking the vehicles of his customers. This act of the tenant also has resulted in reduction of the value and utility of the leased premises materially and permanently. Correctness of the allegations levelled by the landlord were disputed by the tenant. It was contended that the latrine and tank allegedly constructed unauthorisedly are as old as building itself. It was contended that at any rate, the constructions put up by the tenant did not result in deterioration of the value and utility of the building. The Rent Control Court enquired into the rival contentions and at trial the evidence consisted of the oral evidence of PWs. 1 and 2, Exts. A1 to A10 and C1 Commissioner's report and B1 series of documents. Significantly no oral evidence at all was adduced on the side of the tenant. The Rent Control Court on appreciating the evidence, particularly C1 Commissioner's report and RCR.146/10 -4- mahazar came to the conclusion that due to the alterations made by the tenant including constructions made by him without obtaining permission of the landlord the value and utility of the building has been reduced materially and permanently. On the basis of that finding, order of eviction was passed under Section 11(4)(ii). But Rent Control Appellate Authority considered an appeal preferred by the tenant and made a de novo reappraisal of the evidence. The Appellate Authority also concurred with all the conclusions of the Rent Control Court and would confirm the order of eviction passed under Section 11(4)(ii). In this context, the learned Appellate Authority considered the ratio emerging from various decisions which were cited at the Bar such as Abdul Khader v. George Joseph, 2009(1) KLT 205, Om Prakash v. Amar Singh, 1987 (1) SCC 458, and Raghunath v. Varghese, 2005(7) SCC 317. On the basis of its confirmation on the findings of the Rent Control Court the RCR.146/10 -5- learned Appellate Authority would dismiss the appeal confirming the order of eviction passed under Section 11(4) (ii). 2. In this revision various grounds are raised assailing the order of eviction. Sri.B.Krishna Mani, learned counsel for the revision petitioner addressed us very strongly on the basis of those grounds. However, having scanned the judgment of the Appellate Authority and the order of the Rent Control Court and having gauged them by the yardsticks applicable to the exercise of revisional jurisdiction under Section 20 of Act 2 of 1965, we are unable to find any illegality, irregularity or impropriety about the judgment of the Appellate Authority which under the scheme of the Rent Control Act is the final court on facts. We ordered notice to the landlord only in view of the appealing request of Mr.Krishna Mani that atleast two years time be granted to the tenant for surrendering the premises. RCR.146/10 -6- 3. Today when the RCR was considered after service of notice, on behalf of Mr. Krishna Mani an adjournment was sought for. We did not become inclined to grant adjournment as it was for the limited purpose of determining the extent of time to be granted to the revision petitioner for surrendering the premises that we issued notice to the landlord. When this was pointed out to the learned junior who represented Mr. Krishna Mani, she would seek two years time to surrender the premises. The above request was opposed very stiffly by Mr. Johny George, learned counsel for the respondents landlords. Mr. Johny submitted that after the rent control petition was filed, the revision petitioner has sublet the premises to somebody else. The above submission was strongly disputed by the junior lawyer representing Mr. Krishna Mani. 4. Having considered the rival submissions, we feel that there is justification for granting atleast one year's RCR.146/10 -7- time, i.e. till 15-3-2012 for surrendering the premises on proper conditions. The result of the above discussion, therefore, is that the RCR will stand dismissed confirming the order of eviction passed under Section 11(4)(ii). The execution court is directed not to proceed with the execution till 15-3-2012 subject to the following conditions: 1) The entire arrears of rent as alleged by the landlords (coming to Rs.44,850/- as on 1-4-2011) will be discharged by the revision petitioner on or before 1-5-2011. 2) With effect from 1-5-2011, the revision petitioner shall pay occupation charges to the landlords at the rate of Rs.3000/- per month. 3) The revision petitioner will file an affidavit within three weeks from today undertaking to discharge the arrears of rent as found above and also to pay occupation charges at the rate of Rs.3000/- with effect from 1-5-2011 RCR.146/10 -8- and undertaking further to give peaceful surrender of the building to the respondents/landlords on or before 15-32012. We make it clear that the revision petitioner/tenant will get the benefit of time granted as above only if she files the affidavit on time and honours the undertakings given by her. **(PIUS C.KURIAKOSE, JUDGE)** **(N.K. BALAKRISHNAN, JUDGE)** ksv/-