Sumayya (Revision Petitioner) v. Girijakumary @ Girijadevi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944 R.C.REV.NO.158 OF 2021** **AGAINST THE ORDER DATED 22.03.2021 IN R.C.A.NO.10 of 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT** ## **JUDGE-V), KOLLAM** **ORDER DATED 15.10.2015 IN R.C.(OP) NO.14 OF 2013 OF THE PRINCIPAL RENT CONTROL COURT (PRINCIPAL MUNSIFF), KOLLAM** ## **REVISION PETITIONER:** **SUMAYYA AGED 32 YEARS W/O.SUBAIR AHAMED, THOPPIL VEEDU, KAYYALACKAL CHERRY, ERAVIPURAM VILLAGE, VADAKKEVILA, KOLLAM - 691 010. BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS** ## **RESPONDENTS:** **GIRIJAKUMARY @ GIRIJADEVI AGED 52 YEARS D/O.SUBBAMMAL, MAYOOKHAM, TC 5/2278(4), KADAPPATHALA NAGAR, KOWDIAR POST, THIRUVANANTHAPURAM - 695 004. BY ADVS. V.PREMCHAND SURYA MOHAN P.** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 19.05.2022, THE COURT ON 31.05.2022 DELIVERED THE FOLLOWING:** 2 ## **R.C.R No.158 of 2021** ## **O R D E R** ## Ajithkumar, J The tenant is the revision petitioner. Respondent-landlord filed R.C.(OP) No.14 of 2013 before the Rent Control Court (Principal Munsiff), Kollam seeking eviction under Section 11(2)(b) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-V), Kollam. The appeal was dismissed. Thereupon the petitioner filed this Revision under section 20 of the Act. 2. On 16.11.2021, when this matter came up for admission, urgent notice was ordered to the respondent. Interim order of stay not to proceed with the eviction proceedings was granted for a period of one month. The order was extended from time to time and is in force. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 4. The petition schedule building was let out to the petitioner by the respondent on 19.07.2012 at a monthly rent of 3 ## **R.C.R No.158 of 2021** Rs.13,000/-. The petitioner started a footwear and bags shop there. The respondent filed R.C.(OP) No.14 of 2013 alleging that the petitioner defaulted payment of rent and also that during the 1[st] week of January 2013, the petitioner had altered the roof, demolished its southern wall, and put up an opening in that wall with a view to gain entry and possession of the southern room unlawfully. By doing such alterations and a few other modifications, the value and utility of the petition schedule room have been reduced materially and permanently. 5. The eviction sought by the respondent on such grounds was resisted by the petitioner contending that there has not been any arrears of rent and that the allegation of carrying out the material alteration was raised without any basis. Monthly rent for the petition schedule premises was being paid regularly. What the petitioner did was only some decorative works in the shop room. Other than that, no alteration to the building whatsoever has been done by her. It is incorrect that the southern room was illegally trespassed upon. The said room and the open area behind are also part of the demised premises. The rent in the area is getting escalated. With the object of garnering a huge amount of deposit 4 ## **R.C.R No.158 of 2021** from someone else, the respondent filed the R.C(OP). 6. The Rent Control Court recorded evidence of PWs 1 to 3 and RWs 1 to 3. Exts.A1 to A10, B1, X1 and X2 were received in evidence. Rent Control court after considering the said evidence, came to the conclusion that there was arrears of rent and the alteration carried out by the petitioner to the petition schedule room was material and were of such a nature that its value and utility have been reduced materially and permanently. Accordingly, eviction of the petitioner was ordered. Although the petitioner challenged the said findings by filing R.C.A No.10 of 2016, the Appellate Authority did not appreciate the contentions of the petitioner. Eviction ordered by the Rent Control Court under Section 11(2)(b) and 11(4)(ii) was confirmed. The Appellate Authority however observed that during the pendency of the proceedings, Rs.3,12,000/- was paid to the respondents towards arrears of rent. 7. The learned counsel appearing for the respondent conceded that the said amount would cover the rent during the period prior to the quit notice and therefore there is no reason to sustain the order of eviction under Section 11(2)(b) of the Act. 5 ## **R.C.R No.158 of 2021** Hence the order of eviction under Section 11(2)(b) of the Act is vacated. 8. The alterations alleged to have been carried out to the tenanted premises are that the roof of the building was raised, a door was newly installed after demolishing a portion of the southern wall of the tenanted premises, and a door on the southern side of that room was removed. By installing such a door, the room on the southern side was accessed. The definite case of the respondent is that one room with door No.XVII/1122 alone was let out to the petitioner. The room on the southern side bears door No.XVII/1119. That room has not been part of the demised premises and there was a wall to separate these two rooms. The southern room was in absolute possession of the respondent. But by installing a door in the said separating wall, the petitioner gained access to the southern room and reduced the same to her possession. A few other modifications were also effected to the tenanted premises namely, a glass wall erected in aluminum frames with a glass door on the northern side beneath the rolling shutter. Some modifications which are in the nature of beautifying the facade and laying of tiles were also said to have 6 ## **R.C.R No.158 of 2021** been carried out. 9. While the respondent contended that the aforesaid alterations resulted in material alterations to the building affecting its value and utility permanently, the contention of the petitioner is that she carried out some beautification works of the building alone. It is her contention that by providing a glass partition and a door in front, the value and utility of the building was enhanced only. The allegation that a door was newly installed in the southern wall of room No.1122 and removal of the door from the southern wall of room no.1119 is totally denied. Learned counsel appearing for the petitioner would submit that very description of the tenanted premised in Ext.A1 rent deed evinces that not only room No.1122, but also the structures behind were also the subject matter of the tenancy. The stand of the learned counsel is that the premises was availed on rent to accommodate a business in ladies' footwear and bags, and without the facilities for storage, no reasonably prudent person would get the building on rent. Description in the schedule to Ext.A1 takes in the landed property, electric fittings, etc and that would reveal that the whole structure obtained by the respondent as per the partition deed were let out 7 ## **R.C.R No.158 of 2021** to the petitioner. 10. The learned counsel appearing for the petitioner placing reliance in **Shanmugam v. Rao Saheb [1988 (1) KLT 86]** submitted that if at all, it is taken as true that a door was provided in the separating wall, it does not have the effect of impairing the value or utility of the building creating a cause of action for eviction. 11. PW1, the landlady deposed in court that the door in the southern wall of room No.1122 was installed anew by the petitioner. It is her definite version that the said room alone was let out and the remaining area of the structure and the vacant land were retained by her. The respondent relies on, besides her own oral testimony, the oral evidence of PW3 and Ext.A9 to substantiate her contention that the door was newly installed. In Ext.A1, the tenanted premises was described as a shop room. In the schedule, what is included is room No.XVII/1122 alone. The partition deed, as per which the respondent obtained the said property, was received in evidence by the Appellate Authority. In Ext.A10 the description of item No.3 in Ext.A10, which was the property allotted to the respondent, not only the shop room but 8 ## **R.C.R No.158 of 2021** also a portion of the building, a veranda and a toilet were included. When the shop room alone is included in Ext.A1, it cannot be assumed that the entire structure obtained by the respondent as per Ext.A10 was demised as per Ext.A1. The oral testimony of PW1 has to be understood in the light of the said documentary evidence. Therefore the case of the respondent that room No.1122 alone was let out to the petitioner stands proved. 12. While PW1 stated that the alterations and modifications as above were carried out by the petitioner after the commencement of the tenancy, RW1 denied the installation of a door in the southern wall of room No.1122 and also removal of the door on the southern wall of room No.1119. Erection of the glass door and wall is not disputed. RW1, the petitioner would assert that it was only a beautification. It is seen from the report of the Commissioner, Ext.A9 that some modifications by installing the glass door, paving vitrified tiles, etc were done. Those were only some acts of face lifting, attributing a modern look to the shop room. That cannot be said to be any material alteration to the building. 13. The evidence of the Commissioner, PW3 and Ext.A9 9 ## **R.C.R No.158 of 2021** were attacked by the petitioner saying that the report was obtained ex parte in a different proceeding. This report was obtained in O.S.No.81 of 2013 filed by the respondent before the Munsiff Court, Kollam. The Commissioner is PW3. When the Commissioner is examined in Court and she deposed the facts which were seen by her at the time of inspection, the same amounts to primary evidence. Contents of Ext.A9, which is a report prepared by her contemporaneous to her inspection, can certainly be used to corroborate her oral testimony in court. In such circumstances, the defect of having obtained the report ex parte does not have any relevance. PW3 deposed substantiating the contents in Ext.A9 from which it is seen that the door at the southern wall of room No.1122 is newly installed. 14. There is no reason to disbelieve the said version. Therefore the evidence brought in through PWs 1 and 3 and Exts.A9 certainly proves that the door in the southern wall of the tenanted premises, room No.1122 was installed by the petitioner by removing a part of the wall, after the commencement of the tenancy. 15. It is shown that room No.1122 alone was let out to the 10 ## **R.C.R No.158 of 2021** petitioner. Therefore the modification or destruction of any other structure cannot be a reason for eviction under Section 11(4)(ii) of the Act. As pointed out by the learned Counsel for the petitioner, those matters cannot be the subject matter of this proceedings and the remedy of the respondent in that is elsewhere. 16. In **Shanmukha (supra)** the alleged alterations were putting up a door after removing a portion of the boundary wall and construction of a common veranda. The said changes were found not to be an alteration affecting the value or utility of the building. The court however observed that the removal of a wall separating two rooms may or may not result in impairment of utility or value, depending on the facts of each case. ## 17. In **Mohammed Hajee P.V. v. Mundoli Muhammed** **Hajee [2011 (1) KHC 562]** this Court held that “the demolition of the wall separating the two rooms would reduce the value and utility of the petition schedule building. Probably, making two rooms into one may increase the utility of the tenant. But the utility of the landlord cannot be ignored. The landlord had designed and built the rooms by spending money and materials to suit his needs and utility. Tenant has no right to demolish the wall 11 ## **R.C.R No.158 of 2021** in between the rooms and to say that thereby the value and utility are increased.” 18. In **Mohanan v. Muhiyudheen [2010 (1) KLT 512]** , the question was whether the demolition of a compound wall would amount to a material alteration affecting the value and utility of the building. This court held that as far as immovable properties are concerned, a compound wall demarcating its boundary as well as a gate put on for access to that land from the public road are material structures, destruction of which will definitely affect the value and utility of the land. In **Sajith Bhaliga v. Paul [2013 (2) KLT 287]** , the alteration brought about was that the facade of the building was changed and for giving a modern look to the structure rolling shelters were installed. This court held that by such construction, the ancient antique beauty of the building was taken away and therefore, the same has resulted in losing its heritage value thereby reducing its value and utility materially and permanently. 19. In the light of the principles of law discussed above, the case of the respondent that by installing a door after removing a portion of the southern wall of the petition schedule shop room the 12 ## **R.C.R No.158 of 2021** petitioner caused to lose its value and utility materially and permanently can only be accepted. Hence the concurrent findings entered into by the courts below in this regard are not liable to be interfered with by this court invoking its powers under Section 20 of the Act. The said findings cannot be said to be illegal, irregular or improper. Therefore we are of the view that the challenge of the petitioner to the judgment dated 22.03.2021 in R.C.A No.10 of 2016 and the order dated 15.10.2015 in R.C.(OP) No.14 of 2013 can only fail. 20. The learned counsel appearing for the petitioner would submit that an amount of Rs.12 lakhs was paid as deposit at the time of availing the petition schedule shop room on rent and it is only just and equitable to direct the respondent landlord to direct repayment of the same in the event of ordering eviction. The learned counsel invited our attention to Rule 11(8) of the Kerala Buildings(Lease and Rent Control) Rules, 1979, which says that every order passed by an Accommodation Controller, Rent Control Court or the Appellate Authority shall be in accordance with justice, equity and good conscience. It is urged that when the evidence on record reveals that Rs.12 lakhs was paid by the 13 ## **R.C.R No.158 of 2021** petitioner as deposit, it is only just and equitable to order return of it. Of course, if, as a matter of fact, the respondent-landlord received such an amount, it is her obligation to return at the time of surrendering vacant possession of the tenanted premises. But this Court, while exercising jurisdiction under Section 20 of the Act cannot go beyond what has been envisaged as per the provisions of the Act. There is no recital in Ext.A1 as to any such deposit. In the said circumstances, we are unable to accede to the said contention of the learned counsel for the petitioner. 21. In view of what is stated above, this revision fails. We, therefore, dismiss it. 22. At the time of pronouncement of the order, the learned counsel for the petitioner has made a request to afford six months' time for vacating the premises. The learned counsel for the respondent is agreeable to grant three months’ time. 23. Having considered all the aspects, we deem it appropriate to grant five months’ time to surrender vacant possession of the petition schedule building, subject to the following conditions: (i) The respondent-tenant in the Rent Control Petition 14 ## **R.C.R No.158 of 2021** 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 petitioner-landlord within five 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 petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; (ii) The respondent-tenant 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 respondenttenant 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 15 ## **R.C.R No.158 of 2021** automatically and the petitioner-landlord 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