Vasantha Bhagavalsingh and others v. Anthony S., Sasi and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933 R.C.Rev.No.92 of 2005 (D) ------------------------(AGAINST JUDGMENT IN RCA.NO.31/2002 OF RENT CONTROL APPPELLATE AUTHORITY,THRISSUR IN RCOP.NO.1/1984 OF RENT CONTROL COURT,IRINJALAKUDA) REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS 5 TO 8: ------------------------------------------------------------------------------------------ ## 1. VASANTHA BHAGAVALSINGH D/O. LATE KALLINGAPURAM VELUNNI, NELLUSSERY HOUSE KIZHAKKE CHEMMANDA, THRISSUR DISTRICT. ## 2. SUBRAMANIAN S/O. LATE KALLINGAPURAM VELUNNI ALOOR DESOM & VILLAGE, MUKUNDAPURAM TALUK. ## 3. MALLIKA SHANMUGHAN - D/O. LATE KALLINGAPURAM VELUNNI ASHTAMICHIRA VILLAGE & DESOM, MUKUNDAPURAM TALUK. 4. SANTHOSH S/O. KALLINGAPURAM VELUNNI, ALOOR VILLAGE & DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN ## RESPONDENT(S)/RESPONDENTS/PETITIONER & RESPONDENTS 3,8 & 9: - ------------------------------------------------------------------------------------------------------- 1. ANTHONY S/O. MADONA DEVASSYKUTTY, ALOOR VILLAGE & DESOM, MUKUNDAPURAM TALUK. 2. SASI S/O. LATE KALLINGAPPURAM VELUNNI ALOOR DESOM & VILLAGE, MUKUNDAPURAM TALUK. 3. SANTHA PARAMESWARAN - D/O. LATE KALLINGAPURAM VELUNNI, DO. DO. 4. SUNITHA D/O. LATE KALLINGAPURAM VELUNNI DO. DO. R1 BY ADV. SRI.T.C.SURESH MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **C.R** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- R.C.R No.92 of 2005. --------------------------------------------Dated this the 1[st] day of March, 2012. ## **O R D E R** ## **Ramakrishna Pillai, J** . This revision is against the direction of the courts below in granting eviction under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent) Control Act, 1965 (hereinafter referred to as, the Act) . 2. One Velunni (hereinafter referred to as the original tenant), of whom the revision petitioners as well as respondents 2 to 4 are the legal heirs, took the tenanted premises on lease from the predecessor-in-interest of the first respondent on a monthly rent of Rs.10/- by a registered lease deed of 1952. After the death of the original landlord, the first respondent applied for an order of eviction against the original tenant alleging that rent from February, 1979, had not been paid. It was further alleged that he had removed the wall between two rooms as well as the wall, door and window of another room of the petition schedule building, as a result of which, the security of the building was lost and its value and utility were ## _**R.C.R No.92 of 2005**_ -:2:- reduced materially and permanently. Proceedings were initiated after serving a notice demanding vacant possession of the building, which met with a reply stating that the allegation regarding alterations and damage are false. 3. The original tenant resisted the petition contending that he had paid Rs.500/- as advance under an agreement for sale of the premises by the first respondent and O.S.No.108/80 filed by him for specific performance of that agreement was pending. It was further contended that rent was not in arrears and the removal of the wall did not amount to destructive alteration and it was only an ameliorative alteration, which enhanced the utility and convenience of the building, where he was running a hotel. 4. In the light of the oral evidence tendered by PWs.1 and 2, RW1 and documents which were marked as Exts.A1 to A4 and B1 to B4, the Rent Control Court considered the points which were raised for trial and granted eviction under Section 11(2)(b). Eviction under Section 11(4)(ii) was declined. Order of eviction under Section 11(2)(b) was vacated on deposit of arrears. The first respondent took the matter in appeal against _**R.C.R No.92 of 2005**_ ## -:3:- the rejection of the prayer for eviction under Section 11(4)(ii). The appeal was allowed. However, this Court set aside the appellate judgment and remanded the matter to the trial court for fresh disposal. 5. After remand, the trial court appointed an Expert Commissioner for obtaining a report on the alleged damage to the building. Thereafter, PWs.3 & 4 and RW2 were examined. Exts.A5 to A7, Exts.C1 & C1(a) were marked. Considering the entire evidence, a fresh order of eviction was passed under Section 11(4)(ii) by the Rent Control Court. Appeal by the revision petitioners has not been successful. Thus, they have come up in revision. 6. We have heard the learned counsel for the revision petitioners and the learned counsel for the respondent landlord. We have also perused the impugned judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court . 7. The learned counsel for the revision petitioners submitted that the petition schedule building was being used for running a hotel and the revision petitioners' predecessor-in-interest would not cause such damage to the premises to the extent of endangering occupation thereof. He would _**R.C.R No.92 of 2005**_ -:4:- further point out that lease was of the year 1952 and the building has been in existence since long before that. According to him the construction of the building is not as per the modern standards and by the passage of time, the building has become weak. That being the position, the tenant cannot be penalised for the damage reported by the Commissioner; so submitted the learned counsel for the revision petitioners. According to the learned counsel, the act of removal of the wall, door and window etc. can be said to be only bonafide and the said act only enhanced the convenience of the premises for being used as a hotel. 8. It is well settled that demolition of any wall in a building cannot be deemed to be an act of waste unless it impairs the value and utility of the building materially. It is the duty of the court to see whether there is sufficient evidence to show that the tenant has committed destructive alteration which impair the value and utility of the building permanently. In other words, the landlord cannot get an order of eviction on the mere proof of minor destruction or alteration. 9. The Rent Control Court appointed Assistant Executive Engineer, PWD, Buildings Division, Irinjalakuda, to inspect the petition schedule ## _**R.C.R No.92 of 2005**_ -:5:- building and to report whether the alleged alterations of the building destroyed or reduced its value and utility materially and permanently. The Commissioner, who visited the building filed Ext.C1 report and C1(a) plan. 10. The Expert Commissioner could notice that the wall between the northern room and middle room was demolished. The wall at the southern most portion of the southern room was also seen demolished. In the rent deed (Ext.A1) it is stated that the building has three doors and three windows. But the Expert Commissioner could see only one door and two windows at the time of inspection. It was reported that the wall between the northern room and the middle room was not bearing any load and the removal of the same has not affected the safety of the building. However, due to demolition of the wall at the southern most portion of the southern room, permanent damage has been caused to the walls and roofing of the southern room. Hence, it was concluded by him that the safety and utility of that room was permanently affected and it cannot be restored by simple repair works. The Commissioner, who was examined as PW3 reiterated his stand in the witness box. Ext.C1 report, which is corroborated by the ## _**R.C.R No.92 of 2005**_ -:6:- testimony of PW3, would prove that the alterations effected to the petition schedule building has reduced its value materially and permanently and the same has affected the safety of the building. Hence, the argument advanced by the learned counsel for the revision petitioners that the removal of the walls of the petition schedule building has only enhanced the convenience of the premises for being used as a hotel, does not inspire confidence in us. The learned Rent Controller as well as the learned Rent Control Appellate Authority has appreciated the evidence of the Expert Commissioner in the correct perspective to arrive at the finding that the alterations made in the building are destructive alterations. 11. It was strenuously argued by the learned counsel for the revision petitioners that the Rent Control Court went wrong in appointing a Commissioner after remand. It was argued that the learned Rent Control Court does not have jurisdiction to appoint an Expert Commissioner, as the direction of this Court in C.R.P No.2470/99 did not contemplate such a procedure. Reliance was placed on Sec.23 of the Act which reads as follows: _“23. Summons etc.- (1) Subject to such conditions and limitations as may be prescribed, the Accommodation Controller, the_ _**R.C.R No.92 of 2005**_ ## -:7:- _Rent Control Court and the appellate authority shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908_ _(5 of 1908), when trying a suit in respect of the following matters:-_ _(a) discovery and inspection;_ _(b) enforcing the attendance of witnesses, and requiring the deposits of their expenses;_ - _(c) Compelling the production of documents;_ _(d) examining witnesses on oath;_ _(e) granting adjournments;_ _(f) reception of evidence taken on affidavit;_ _(g) issuing commission for the examination of witnesses and for local inspection;_ _(h) setting aside exparte orders;_ _(i) enlargement of time originally fixed or granted;_ _(j) power to amend any defect or error in orders or proceedings; and_ _(k) power to review its own order._ _(2) The Accommodation Controller, the Rent Control Court or the appellate authority may summon and examine suo motu any person whose evidence appears to it be material; and it shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act 5 of 1898).”_ 12. It is true that the Legislature was keen in limiting the operation of Civil Procedure Code by Sec.23 to areas which are essential for the day today proceedings of an Accommodation Controller, Rent Controller or the appellate authority, as the case may be. The argument advanced by the ## _**R.C.R No.92 of 2005**_ -:8:- learned counsel for the revision petitioners is that the deputation of an Expert Commissioner is not contemplated by the Act. But, we are of the view that all powers which are not denied by the statute are given as a privilege to a Tribunal for effective exercise of its judicial function. Power to issue commission for the examination of witnesses and for local inspection is envisaged by Section 23(g) of the Act. We see no reason why that power shall not be extended for deputing Expert Commissioners also for ascertaining facts which are relevant for consideration of a fact in issue. 13. Here, we are reminded of a brilliant observation made in _**Cheru Ouseph v. Kunjipathumma (1981 K.L.T 495)**_ where the nature and ambit of powers to be exercised by Tribunals in matters of procedure were described, while considering a revision petition filed by the tenant against an order for restoration of a rent control petition which was dismissed for default. _“What, after all, is the inherent power saved by S.151 of the Code of Civil Procedure? A court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the court must have jurisdiction over the proceedings before it_ ## _**R.C.R No.92 of 2005**_ ## -:9:- _can exercise the inherent power; but when that is granted, its power to advance the cause of justice by relying on unenumerated powerson inherent or residuary power, as it is often called - cannot be denied to it. And therefore, where a tribunal exercises the same kind of power i.e. part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuary powers? If you do not like the name, call it by another; but so long as the tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice. This is not to convert every tribunal into a tyrant, but only to recognise the reality that tribunals have come to stay as instruments of administration of justice, and that occasions may arise where they too will have to step into areas unchartered by the statute and the rules, in the interest of justice. If a tribunal goes out of its way in the fulness of its powers, the superior courts are there to correct it, as noticed by Allen; and as also observed by him, the first adjudication is more important to the litigant than the last.”_ 14. Viewed in that profile, we hold that the deputation of an Expert Commissioner by the learned Rent Controller is perfectly justifiable. 15. During the course of arguments, both sides submitted that O.S No.108/80 filed by the deceased Velunni resulted in dismissal and it culminated in Second Appeal No.138/1995, which is now pending before this Court. It was also brought to our notice that the first respondent also _**R.C.R No.92 of 2005**_ ## -:10:- had filed O.S No.8/1984 for decree of mandatory injunction, the verdict of which has led to S.A No.611/99, which also is pending before this Court. According to the learned counsel for the revision petitioners, as the appeal for specific performance of an agreement for sale (S.A 138/95) is pending, it is unjust and improper to order eviction of the revision petitioners from the tenanted premises. 16. On an anxious consideration of the entire facts and circumstances, we are of the view that there is absolutely no scope for interference by this Court under Section 20 of the Act as the impugned order does not suffer from any illegality, infirmity or impropriety. Accordingly, we dismiss the revision petition. However, since the pendency of S.A Nos.138/95 and 611/99 has been brought to our notice by the learned counsel for the revision petitioners, without expressing any opinion with regard to the subject matter which is pending consideration in the second appeals, we make it clear that in view of the pendency of the second appeals, the execution of the order which is confirmed shall be kept in abeyance for a period of nine months from today subject to the following conditions: _**R.C.R No.92 of 2005**_ -:11:- 1) The revision petitioners shall remit the entire arrears as on today before the Rent Control Court within three months from today with notice to the first respondent. 2) The revision petitioners shall pay charges towards use and occupation of the building at the rate of Rs.250/- per month from today till they give vacant possession of the petition schedule building. 3) The revision petitioners shall file an affidavit, before the Execution Court or the Rent Control Court as the case may be, undertaking to surrender vacant possession of the petition schedule building peacefully to the first respondent after the expiry of nine months. 4) It is made clear that this order will not stand in the way of the tenant surrendering the building even before the expiry of nine months fixed herein. Sd/- ## **PIUS C. KURIAKOSE JUDGE** **==> picture [122 x 10] intentionally omitted <==** **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj