Shyaja (through LRs) & Prajeesh & Praveen v. Asiya & Aslam Fawaz & Raheena & Sahala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 RCREV. NO.3 OF 2021** **AGAINST THE ORDER/JUDGMENT IN RCA 42/2018 OF II ADDL.RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE(II ADDITIONAL DISTRICT COURT KOZHIKODE) RCP 233/2014 OF RENT CONTROL COURT, KOZHIKODE (PRINCIPAL MUNSIFF COURT -II, KOZHIKODE)** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** * 1 SHYLAJA (DIED) AGED 63 YEARS W/O.LATE SIVADASAN, CHEMENCHERY HOUSE, P.O PERUMUGHAM, KALLAMPARA, VIA FEROKE, KOZHIKODE TALUK. 2 PRAJEESH AGED 44 YEARS S/O.LATE SIVADASAN, CHEMENCHERY HOUSE, P.O PERUMUGHAM, KALLAMPARA, VIA FEROKE, KOZHIKODE TALUK. 3 PRAVEEN AGED 41 YEARS S/O. LATE SIVADASAN, CHEMENCHERY HOUSE, P.O PERUMUGHAM, KALLAMPARA, VIA FEROKE, KOZHIKODE TALUK. BY ADVS. V.SREENATH SRI.P.K.SAJEEV * (IT IS RECORDED THAT 1ST PETITIONER DIED AND HER LEGAL REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS PETITIONERS 2 AND 3 VIDE ORDER DTD.2/2/2023 IN I.A. 2/2022) **R.C Rev.No.3 of 2021** **2** ## **RESPONDENTS/RESPONDENTS/LR'S OF PETITIONER:** 1 ASIYA AGED 60 YEARS W/O. LATE NELLOLI MOIDEEN KOYA, NELLOLI HOUSE, CHERUVANNUR JUNCTION, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK – 673 655. 2 ASLAM FAWAZ, AGED 30 YEARS S/O. LATE NELLOLI MOIDEEN KOYA, NELLOLI HOUSE, CHERUVANNUR JUNCTION, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK-673655. 3 RAHEENA AGED 35 YEARS D/O. LATE NELLOLI MOIDEEN KOYA, NELLOLI HOUSE, CHERUVANNUR JUNCTION, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK-673655. 4 SAHALA, AGED 33 YEARS, D/O. LATE NELLOLI MOIDEEN KOYA, NELLOLI HOUSE, CHERUVANNUR JUNCTION, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK-673655. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.UMMERKUTTY KARIYIL ## **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD** **ON 23.01.2023, THE COURT ON 02.02.2023 PASSED THE FOLLOWING:** **R.C Rev.No.3 of 2021** **3** ## **P.B. SURESHKUMAR & SOPHY THOMAS, JJ.** ------------------------------------------------ Rent Control Revision No.3 of 2021 ------------------------------------------------ Dated this the 2[nd] day of February, 2023 ## **O R D E R** ## **Sophy Thomas, J.** The tenants, who suffered concurrent orders of eviction from the Rent Control Court as well as the Rent Control Appellate Authority, are before us, invoking revisional jurisdiction of this Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). 2. The landlord Sri.N Moideen Koya filed RCP No.233 of 2014 before the Rent Control Court, Kozhikode, for evicting the tenants from the petition schedule building, which was entrusted to the predecessor of the tenants, by virtue of a kachit dated 15.07.1996, on a monthly rent fixed @ Rs.500/-. Thereafter, the rent was enhanced to Rs.1,200/- and the tenants paid the rent upto February, 2012 and thereafter, the **R.C Rev.No.3 of 2021** **4** rent was kept in arrears. In spite of registered lawyer notice, they did not pay the rent arrears. Moreover, the landlord was in bonafide need of the petition schedule property to start a business of sale and service of mobile phone and spare parts for his son Aslam Favaz who was having no job or income of his own. Further, the tenants made material alterations to the building, without the knowledge or consent of the landlord, and he had to file a police complaint, as well as a suit, as O.S No.280 of 2012 before the Munsiff Court, Kozhikode, to prevent them from making further alterations. Thus, the landlord sought eviction under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Act . 3. The Rent Control Court examined PWs 1 to 4 and marked Exts.A1 to A18 from the side of the landlord and examined RW1 and marked Exts.B1 to B22 from the side of the tenants. 4. On analysing the facts and evidence and also on hearing both sides, the learned Rent Control Court found that, the landlord succeeded in proving his case of arrears of rent, bonafide need, as well as material alterations alleged against the tenants, and allowed RCP No.233 of 2014, directing the **R.C Rev.No.3 of 2021** **5** tenants to surrender vacant possession of the petition schedule building within a period of one month from the date of order, making the eviction order passed under Section 11(2)(b) subject to Section 11(2)(c) of the Act. 5. The tenants took up the matter in appeal under Section 18 of the Act, as RCA No.42 of 2018, challenging the order of eviction under all the three heads. 6. Pending RCA, the landlord died and his legal heirs were impleaded as additional respondents 2 to 5 in the Rent Control Appeal. 7. The Rent Control Appellate Authority, after hearing both sides in extenso, found that, the learned trial court analysed the facts and evidence in its correct perspective and there was no ground to interfere with any of the findings under any of the grounds urged by the tenants, and hence the appeal was dismissed, upholding the finding of the trial court. Aggrieved by dismissal of RCA No.42 of 2018, the tenants have preferred this Rent Control Revision. 8. During pendency of the Rent Control Revision, the 1[st] revision petitioner Smt.Shylaja passed away and I.A No.2 of 2022 was filed to record her death and also to record that **R.C Rev.No.3 of 2021** **6** her legal representatives are already in the party array as revision petitioners 2 and 3. That I.A stands allowed and revision petitioners 2 and 3 are recorded as the legal heirs of deceased 1[st] revision petitioner. 9. We are called upon, to find out whether there is any illegality or impropriety in the concurrent findings of the Rent Control Court as well as the Rent Control Appellate Authority, ordering eviction under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Act. 10. Heard Sri. V. Sreenath, learned counsel appearing for the revision petitioners and Sri.V.T Madhavanunni, learned counsel appearing for the respondents. 11. The landlord was seeking eviction of the tenanted premises on three grounds: 1) Arrears of rent [Section 11(2)(b)] 2) Bonafide need [Section 11(3)] and - 3) Material alteration [Section 11(4)(ii)] 12. The Rent Control Court as well as the Appellate Court found that, though the claim of the landlord was that the rent was enhanced to Rs.1,200/- from the original rent of Rs.500/-, **R.C Rev.No.3 of 2021** **7** there was no evidence to prove that fact, and the monthly rent of Rs.825/-, as admitted by the tenants, was accepted as the rent of the building. The Rent Control Court as well as the Appellate Court found that, after the receipt of Ext.A2 notice, Rs.53,853/- was sent by the tenants after deducting Rs.720/towards building tax. Since there was no direction by the landlord to the tenants to pay the building tax, the Rent Control Court as well as the Appellate Court rightly found that, the tenants were not eligible to deduct the building tax amount of Rs.720/- from the arrears of rent. The revision petitioners/tenants are not seriously disputing the finding of the Rent Control Court as well as the Appellate Court in that regard, and they have no case that, the monthly rent of the tenanted premises was being paid without any default. The trial court ordered eviction under Section 11(2)(b) of the Act, of course, subject to Section 11(2)(c) of the Act, which was confirmed by the appellate court also. 13. On going through the available facts and evidence, and on hearing the submissions of learned counsel for the revision petitioners and respondents, we find no illegality or impropriety in the judgment of the Rent Control Appellate **R.C Rev.No.3 of 2021** **8** Authority, upholding eviction ordered under Section 11(2)(b) of the Act. 14. Regarding the second ground of eviction under Section 11(3) of the Act, the Rent Control Court as well as the Appellate Court found that, the son of the landlord Sri.Aslam Favas, who was examined as PW2, was proposing to start a business of sales and service of mobile phone and spare parts in the petition schedule premises and it was not a mere desire and the need was bonafide. The revision petitioners/tenants failed to prove that, the business carried out by them in the tenanted premises was the main source of income for their livelihood. It was brought out in evidence that, the 2[nd ] revision petitioner was employed abroad. Moreover, they failed to prove that, no other suitable buildings were available in that locality to which they can shift their business. No documents were made available from the Accommodation Controller also to substantiate their case regarding non availability of suitable buildings in that locality. So, the trial court as well as the appellate court rightly concluded that, the revision petitioners/tenants were not entitled to get the benefit of second proviso to Section 11(3) of the Act. **R.C Rev.No.3 of 2021** **9** 15. Learned counsel Sri.V.Sreenath, appearing for the revision petitioners, contended that, the Rent Control Appellate Court failed to note down the subsequent events by which the landlords got vacant possession of similar rooms which were leased out, and they could have started their business in those rooms, and so, their case that they are in bonafide need of the petition schedule room for starting their business, is not correct, and such a contention is taken up, only as a ruse to evict the tenants from that room. The landlords are admitting that, they had sold away one room to one Smt.Sindhu as per Ext.B1 document during the pendency of the Rent Control Petition. It has come out in evidence that, the said room was not in vacant possession of the landlord, and it was in the possession of the husband of Smt.Sindhu and he was running a bakery in that building as a tenant of the landlord. Moreover, that sale was effected to meet the expenses of treatment of the landlord Sri.Moideen Koya, who was a physically challenged person with disability of more than 60%. So, the sale of the room leased out to Sri.Sunil Kumar, to his wife Smt.Sindhu to raise funds for the treatment of the landlord is a justifiable reason, and it will not take away the bonafide **R.C Rev.No.3 of 2021** **10** need of the son of the landlord to get vacant possession of the petition schedule room, for starting his business. 16. The revision petitioners/tenants invited our attention to the fact that, the landlords got vacant possession of another room which was rented out, but they again leased out that room to another person. According to them, that room was a similar one to the petition schedule room and if they wanted to start a business for PW2, that room could have been used, without letting it out further, and that also is sufficient to show that, their demand to get vacant possession of the petition schedule room is not bonafide. The landlords sufficiently explained the reason for letting out the room which they got vacant possession after disposal of the RCP. According to them, the landlord Sri.Moideen Koya was laid up and he was in need of money for treatment. He had five tenanted shop rooms, from where he was getting only a meager income. To discharge the financial liability, he wanted to receive advance amount from a willing tenant on licence arrangement, and accordingly, one Mr.Shahul Hameed advanced Rs.3 lakh as advance deposit, and agreed to pay monthly licence fee of Rs.12,000/-. Now, the original landlord Sri.N Moideen Koya is **R.C Rev.No.3 of 2021** **11** no more, and his legal heirs would contend that, the landlord was laid up for a pretty long period, and lot of financial liability was incurred in connection with his treatment. In order to save the situation, there was no other way but to let out the building to a third person on obtaining advance amount. The revision petitioners/tenants did not adduce any cogent evidence to the contra, which may show that, the landlord and his son PW2 were financially well off to meet the treatment expenses, without leasing out the building which they got vacant possession after the disposal of the RCP. 17. The trial court as well as the appellate court have concurrently found that, the need of the landlord to get vacant possession of the petition schedule room for starting a mobile shop for PW2 was well founded, and nothing to the contra was brought out from the side of the tenants to show that, it was only a ruse to get them vacated. So, the eviction ordered under Section 11(3) of the Act also is free from any illegality or impropriety. 18. The third ground for eviction is material alteration of the tenanted room by the revision petitioners/tenants. The revision petitioners are admitting the fact that, they made **R.C Rev.No.3 of 2021** **12** some maintenance works/alterations in the tenanted premises. But, according to them, it was with the permission of the landlord. There is nothing to show that, the landlords ever permitted the tenants to carry out any repair/modification works in the tenanted room. Whereas it has come out in evidence that the landlords filed police complaint against the tenants, when they tried to make some alterations in the building, and moreover they filed O.S No.280 of 2012 before the Munsiff Court, Kozhikode, for injuncting the tenants from making any alterations in the tenanted room, and they got a decree also as prayed for. That fact will prove that the landlords never permitted the tenants to make any alterations or modifications in the tenanted premises. 19. Learned counsel Sri.V.Sreenath, appearing for the revision petitioners, contended that, the tenanted room was having a tiled roof and since some of the tiles were broken, there was leakage of rainwater, and only to prevent the same, the revision petitioners changed the tiles on the roof, and the wooden rafters were replaced with metal rafters. It has come out in evidence that, one door was dismantled and that area was closed using laterite stones. **R.C Rev.No.3 of 2021** **13** 20. According to the revision petitioners, the works carried out by them will not destroy or reduce the value or utility of the building, and in fact, it will have the effect of an improvement, increasing the value and utility of the building. It is the landlord who has to decide what is good or bad for his building, and it is only his choice as to what shall be the nature of roofing, flooring etc. He has got the absolute freedom to decide where the doors and windows of his building are to be fixed, where the wall has to be closed etc. Value or utility of the building is to be considered in the point of view of the landlord, and the tenant cannot dictate terms on the landlord. 21. The Apex Court, in **Vipin Kumar** _vs._ **Roshan Lal Anand** [(1993) 3 JT (SC) 171], considered the issue of material alteration of the tenanted building and was pleased to find that, the impairment of the value or utility of the building is from the point of the landlord and not of the tenant. ## 22. In **Gurbachan Singh** _vs._ **Shivalak Rubber** **Industries** (AIR 1996 SC 3057), Hon'ble Supreme Court referred and relied on the dictum laid down in _Vipin Kumar's_ _case_ cited supra, and held that ' _the decrease or deterioration, in other words the impairment of the worth and usefulness or_ **R.C Rev.No.3 of 2021** **14** _the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or anyone else_ '. 23. Following the dictum laid down in _Vipin Kumar's case_ and _Gurbachan Singh's case_ cited supra, this Court, in **Francis** _vs._ **Davis** (2005 (3) KLT 815), observed that, value or utility of the building is to be considered in the point of view of the landlord. 24. In the case on hand, there is evidence to show that, the tenants, without the knowledge or consent of the landlord, replaced the wooden rafters with metal rafters, changed the roofing, dismantled one door, closed that area with laterite stone etc. and it amounts to material alterations, which are permanent in nature. Since those alterations were done without getting permission and even without the knowledge of the landlord, if the landlord says that, it was against his interest in that building, and he never wanted those works to be carried out in his building, the tenant cannot be heard to say that, those works will not destroy or reduce the value or utility of the building and in fact, it will have the effect of an improvement increasing the value and utility of the building, **R.C Rev.No.3 of 2021** **15** because the landlord has to decide what shall be the nature of roofing, flooring etc. of his building and the value and utility of the building has to be judged and determined from the point of view of the landlord and not of the tenant or anyone else. 25. The tenants were not expected to replace the wooden rafters with metal rafters or to remove the door and to close the wall using laterite stone. No doubt, replacing wooden rafters with metal rafters and removing tiled roof with roof of some other material and closing the wall after removing a door etc. are material alterations which are permanent in nature. The tenants, who carry out such works in the tenanted premises, without the permission of the landlords, are liable to be evicted under Section 11(4)(ii) of the Act. 26. So, the finding of the Rent Control Court as well as the Rent Control Appellate Authority that, the tenants were liable to be evicted under Section 11(4)(ii) of the Act, does not suffer from any illegality or impropriety. 27. The jurisdiction of this Court under Section 20 of the Act is only to ensure that, the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. On going through the orders of the Rent Control **R.C Rev.No.3 of 2021** **16** Court as well as the Appellate Court, there is no scope for any interference, as the facts and evidence are analysed and appreciated correctly in accordance with law. 28. The eviction order under Section 11(2)(b) of the Act being a provisional one subject to Section 11(2)(c) of the Act, no separate order is necessary for eviction under Section 11(2)(b). 29. In the result, the Rent Control Revision is liable to be dismissed, upholding the concurrent findings of the Rent Control Court as well as the Rent Control Appellate Authority, directing the tenants to surrender vacant possession of the tenanted premises. Considering the facts and circumstances prevailing in this case, it is only just and reasonable to grant six months time to the revision petitioners/tenants to vacate the tenanted premises on condition that, they shall file an affidavit of undertaking before the Rent Control Court on or before 15.02.2023, unconditionally undertaking to vacate the tenanted premises within a period of six months from this day, and further that, they shall pay the arrears of rent, if any, within one month and continue to pay the monthly rent before **R.C Rev.No.3 of 2021** **17** the due dates. In case of default to comply with any of these conditions, the landlord would be free to initiate execution proceedings. The pending Interlocutory Applications, if any, shall stand closed. Sd/- **P.B SURESH KUMAR JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp