Thirunilath Suresh Kumar v. Abdul Rahiman Kutty

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940 ## RCRev..No. 308 of 2017 AGAINST THE JUDGMENT IN RCA 38/2015 of ADDL. DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, TIRUR DATED 20-02-2017 AGAINST THE ORDER/JUDGMENT IN RCP 11/2014 of RENT CONTROL COURT, PARAPPANANGADI DATED 26-06-2015 ## REVISION PETITIONER/APPELLANT/PETITIONER: THIRUNILATH SURESH KUMAR S/O.CHATHU,THIRUNILATH HOUSE,VALIYORA(PO),VALIYORA AMSOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY ## RESPONDENTS/RESPONDENTS/PETITIONER: ABDU RAHIMAN KUTTY, S/O KOTTTEKKAT KARUVEPPIL MOIDEEN,VENGARA AMSOM,VENGARA(PO),TIRURANGADI TALUK, MALAPPURAM DISTRICT-676 304. BY ADV. SRI.HARISH R. MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR No. 308/2017 -2- ## **ORDER** ## Annie John,J. The revision petitioner is the tenant and the respondent herein is the landlord. The Rent Control Petition was filed by the respondent/landlord seeking an order of eviction under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). The Rent Control Court, as per order dated 26.06.2015 allowed RCP No. 11 of 2014 directing the revision petitioner/tenant to give vacant possession of the petition schedule building to the respondent/landlord. Aggrieved thereby, the revision petitioner/tenant has filed RCA No. 38 of 2015, which was dismissed by the Rent Control Appellate Authority as per judgment dated 20.02.2017 confirming the findings of the trial court. Hence this Revision. 2. The case of the respondent/landlord is as follows: The petition schedule building consists of three tenements under single roof and each are facing northern side with separate entrance and a well is attached to his tenement. The petition schedule building was given to the tenant as a licencee and the licence fee after periodical enhancement is Rs.3815/- per month. The entrustment was in the year 2008. The revision petitioner/tenant has filed O.S. No. 95 of 2014 before the Munsiff's Court, Parappanangadi and he was obtained an order of temporary injunction against the respondent/landlord RCR No. 308/2017 -3- preventing the forceful eviction of the tenant from the premises. In that OS, the respondent/landlord has accepted the contention that he is not a licencee, but a tenant under him. 3. The revision petitioner/tenant has filed a counter statement, wherein the landlord-tenant relationship is admitted. He has denied the allegation of material alteration and the removal of facilities. It is stated that as per the direction of the Khadi Board, the landlord himself consented to change the three tenements and to remove the wall, and that without such alteration, the tenant is unable to start tyre resoling activity. In order to get subsidy from the Khadi Board with the consent of the landlord, the tenant altered the building and the officers of Khadi Board inspected the premises and accordingly, he was granted subsidy. The respondent/landlord has also given consent to issue Panchayath licence for starting tyre resoling in the premises. Therefore, the allegation that the material alteration was done without the consent of the landlord is false. 4. The learned counsel for the revision petitioner contends that the trial court, without properly appreciating the deposition of the landlord and without considering the fact that the rent agreement contains an express permission to the tenant for making alterations in the building, allowed the Rent Control Petition. It is also contended that the courts below ought to have found that the rent agreement produced RCR No. 308/2017 -4- and marked before the court provided for an express permission by the landlord to the tenant for doing material alteration in the building for installation of machinery and conduct of the business with a condition to change it back to the earlier position at the time of surrender of the premise. The courts below ought to have found that the nature of the business run by the tenant required material alteration and the entrustment of the building for the conduct of the above business itself is a permission or consent given to carry out material alteration. The courts below went wrong in appreciating the fact that the previous lie, nature and structure of the rooms at the time of entrustment are not pleaded and proved by the landlord and hence, the material alterations alleged cannot be proved without proving the earlier condition of the room. 5. The main argument advanced by the revision petitioner/tenant is that there was an implied consent on the part of the respondent/landlord for effecting alterations in the plaint schedule building. It is admitted by the revision petitioner/tenant that he has done modification in the building and that too with the implied consent of the landlord. But, there is absolutely no evidence to establish the same. **6.** Now the case of the respondent/landlord is that the appellant/tenant has done modification in the building and altered the structure of the building and therefore, he has sought for eviction of the RCR No. 308/2017 -5- appellant/tenant from the petition schedule building. It is also contented that the appellant/tenant has materially altered the building which is against the terms of entrustment and thereby, the utility of the building is lost. The respondent/landlord has sought for eviction of the building; but the appellant/tenant has demanded lakhs of rupees. Accordingly, the appellant/tenant has filed O.S No. 95 of 2014 before the Munsiff's Court, Parappanangadi and has obtained an order of temporary injunction against the respondent/landlord preventing forceful eviction of the tenant from the premises. The main argument advanced by the learned counsel for the appellant is that there was an implied consent on the part of the respondent/landlord and accordingly the structure of the building has been changed. Without the alteration in the tenanted premises, she could not have been started the tyre-resoling activity. In order to get subsidy from the Khadi Board, he altered the building with the consent of the landlord and based on that consent, the Khadi Board has granted subsidy to him after inspecting the premises. The learned counsel for the appellant has pointed out the recitals in Ext.A1 rent deed. Ext.A1 is the licence agreement executed between the appellant and respondent and it contains the terms and conditions of the agreement. It was also borne out that the building was given to the tenant for tyre resoling and other activities. In the second page of Ext.A1, it was recited that "കട�ത� ന�ങളതട സമ�പക�ര� മറ�കള�ൽ മ�ഷ�നറ�കൾ സ�പ�കന��ന വ�ണ RCR No. 308/2017 -6- ചമരകള� മറ� ന ക� ത%യ' ല)സൻസ' ക�)��ധ� കഴ�ഞ ന�ങൾക ഒഴ�ഞ �രന സമയ� തപ�ള�ച മ�റ�യ ചമരകൾ പഴയ രപത�ൽ �തന ഞൻ എത6 സ7ന� %�)��ൽ സ�പ�ച �രതമന�, ന�ങളതട അറ�വ�� സമ�വമ� കട�ത� വ�തറ യ�ത��ര ��ധ രപവ;ദങള� ചമരകൾക� മറ� �രതന�ത?ന� ” ഞൻ സമ��ച�ര�കന. The learned counsel for the appellant has stressed the above point before us and submitted that the alteration of the tenanted building is necessary to do the tyre resoling work, for which the rooms are given to the tenant. It is pertinent to note that the clause contained in Ext.A1 that the tenant is entitled to remove the wall only after obtaining the consent from the landlord. But there is absolutely no evidence to prove that the respondent/landlord has given consent to the appellant/tenant to remove the walls and to make other alterations in the building. On the other hand, the learned counsel for the appellant has strenuously argued before us that on a bare reading of the clauses contained in Ext.A1, it can be presumed that there was an implied consent on the part of the landlord. There is a clear implication in that sentence that the tenant should get consent from the lanlord before making alteration in the said building. It is important to note that in the 6th paragraph of the affidavit filed in lieu of examination in chief of the tenant as RW1, it is deposed that a few material alterations were done by the landlord himself and it will not affect the value or utility of the building. On the strength of this deposition, it can be presumed that the RCR No. 308/2017 -7- case of the respondent/landlord is that the walls of the building were removed by the landlord himself. It is also come out in the cross examination of RW1 that he was obtained subsidy for tyre-resoling work from the Khadi Board. In addition to that, the appellant has admitted in the cross examination that at the time of inspection of Advocate Commissioner, the door fitted on the wall and the door on the southern side room were removed and the oven fitted in the kitchen were also removed. The western side toilet of the building and the door of one of the room were also found removed and that area was closed with stone and cement plastering. The RW1 has also admitted that one of the toilet was also destroyed. As per Ext.C1 Commission report, it is clear that the entire building has been altered by making some modifications and by removing the doors, walls, oven etc. The case of the respondent/landlord is that he was not aware of the changes made by the appellant/tenant to the said building. In order to prove this fact, the respondent/landlord has produced Exts.A3 to A10 medical records to show that his wife and children were undergoing treatment. Ext.A2 is the certified copy of the plaint in O.S. No. 95 of 2014 and Ext.A11 is the reply notice produced in the said suit. Exts.B1 to B3 are the electricity bills for payment of electricity charge for the building. Exts.B4 and B7 are the bank passbooks of the tenant to prove the payment of rent in the account of the landlord. Ext.B5 is the letter and Ext.B6 is the tax RCR No. 308/2017 -8- assessment register issued by Vengara Grama Panchayath. Ext.B8 is the certificate issued by the Bank to the tenant showing his liability of loan to the Bank. Ext.B9 is the letter issued by the Khadi and Village Industries, Malappuram showing the financial assistance given to the tenant for starting his 'Thirunilath tyres'. Ext.B10 is the photocopy of the letter of consent given by the landlord to the Panchayath for giving licence to tyre resoling work in the petition schedule building. The definite case of the respondent/landlord is that the building is a residential quarters and without his consent, the kitchen, bedroom, wall and fittings of the building were removed and it is against the terms and conditions of Ext.A1 lease deed. Eventhough the appellant/tenant has admitted that he has made alterations to the building, his case is that it was done with the consent of the respondent/landlord. Exts.C1 and C1(a) Commission report and plan would give the details of alteration done in the plaint. In the Commission report, it is reported that so many machines were fixed in the building. In the third page of the report, it is specifically reported that the front side of the varantha of the building were completely removed and the northern side were also removed. The front side of the entrance was closed and the doors of the building, oven in the kitchen, the wall and the toilet were also removed. It is also reported that the heavy machine fixed in the room cannot be removed without removing the walls and the doors of the building. In the 6[th] RCR No. 308/2017 -9- paragraph of Ext.C1, it is stated that the building is very old and by alteration, the safety of the building is diminished. It is further reported that the four doors of the building and the walls in between two toilets were also removed. ## 7. In _**Mohanan v. Muhiyuddeen and others**_ [2010(1) KLT 512], it is held that the value or utility of the building is to be considered in the point of view of the landlords and the stipulations in the lease deed restraining the tenants from making additional constructions, is binding on the tenants. 8. After hearing the learned counsel on both sides and on going through the evidence, it is borne out that the appellant/tenant has done permanent alteration to the building and closed down its access. 9. In _**Dhamodaran v. Sajith Bhaliga**_ [2013 (2) KLT 287], it is held that "it is for the landlord to decide as to how should his building look like, how should be its front elevation, what should be the roof of it, etc. When the tenant defaces the building, alters its front elevation, or alters its roof by making constructions of permanent nature, without the consent of the landlord, it will certainly invite the ground under S.11(4) (ii) of the Act, provided such acts of the tenant destroys the value or utility of the building materially and permanently in the landlord's point of view. In such cases, it has to be viewed from the landlord's point of view and not from the angle of the tenant in order to appreciate whether RCR No. 308/2017 -10- such alteration materially and permanently destroys the value or utility of the building." 10. In the instant case, the case of the appellant/tenant is that with the consent of the respondent/landlord material alterations were done to the petition schedule building. But the respondent/landlord has denied the same. Then the burden is on the appellant/tenant to establish that with the consent of the landlord, he has made alterations to the building. Ext.A1 stipulates that before doing any alteration to the building, consent of the landlord must be obtained. The appellant's counsel has interpreted the aforementioned clause in Ext.A1 and submitted that no further consent is required from the respondent/landlord. The said clause itself is an implied consent. The appellant/tenant has failed to produce any written consent to establish his case. He has admitted that there is no such written consent on the part of the respondent/landlord. 11. There is absolutely no evidence to prove that the respondent/landlord has given consent to the appellant to modify the building on his own ideas. When the appellant was examined as RW1, he has admitted the removal of all the fittings and the changes in the structure of the building. Ext.B10 is the consent letter executed by Sri. Abdurahmah Kutty. But it cannot be treated as a consent for the changes done in the building. When the respondent/landlord has RCR No. 308/2017 -11- examined as PW1, he has deposed that there was no consent on his part to do modification of the building. The appellant/tenant has admitted that he has done material alteration to the building and this fact is also supported by Exts.C1 and C1(a) report and plan, which would prove that the tenant has made alterations in the building which caused to reduce the value and utility of the building. Apart from the argument on the part of the learned counsel for the appellant that there was an implied consent on the part of the respondent/landlord, no other arguments were placed before us to disprove the case of the respondent/landlord. We have elaborately considered the arguments and the evidence adduced by both sides. The conclusion arrived at by the Rent Control Court as well as the Appellate Authority is with justifiable reasons. Therefore, we do not find any illegality, impropriety or perversity in the findings of the courts below. 12. It is also borne out that the machinery was installed in the building for running a Tyre-resoling unit. The revision petitioner/tenant has sought for one year's time to vacate the tenanted premises. Considering the request, we are inclined to grant one year's time to vacate the premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of a copy of this order. RCR No. 308/2017 -12- 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a year from today. 3. The affidavit shall be filed before the Execution Court within two - weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ RCR No. 308/2017 -13-