IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 RCRev..No. 16 of 2010() ----------------------- RCA.43/2006 of DISTRICT COURT, THRISSUR RCP.122/2003 of RENT CONTROL COURT, THRISSUR. .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------- VINAYAN, S/O.MELEVALAPPIL MADHAVAN, KUMARANELLUR DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. MR.JOSEPH SEBASTIAN PURAYIDAM MS.MABLE.C.KURIAN RESPONDENT(S)/RESPONDENTS/SUPPL. PETITIONERS: ------------------------------------------------------------ 1. C.C.THARU, D/O.LATE THARU, MANGALATHVEETTIL, MAZHUVANNOOR POST, MAZHUVANNOOR DESOM, ERNAKULAM DISTRICT. 2. RINOY THARU, S/O.KUNDUKULAMVEETTIL THARU JEEVAN PRAKASH A+4, NES MARG, GHANDOOP, MAHARASHTRA. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.Rev.No.16 of 2010 ---------------------------------- Dated this the 11th day of January, 2010 O R D E R Abdul Rehim, J. This revision petition is filed under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (for short the Act) by the tenant of the scheduled building against the concurrent findings of eviction ordered under Section 11(2)(b), 11(3) and 11(4)(ii) of the Act. The respondents herein are the legal heirs of the original landlord who died during pendency of the appeal before the Rent Control Appellate Authority and who were impleaded as additional respondents in the appeal. The parties are referred to hereunder in the order as 'tenant' and 'landlords' respectively. 2. Tenancy came into existence on 15.10.2002 through Ext.A1 rent deed, stipulating monthly rent @ Rs.3,500/-. The tenant had failed to pay the rent to the landlord from the date of Ext.A1 and thereby committed arrears of rent. Hence eviction is sought for under Section 11(2)(b). The need projected for own occupation is that the original landlord was RCR.16/2010 2 having job at Mumbai and due to ill health he is now settled in Kerala, since May 2003 onwards. Since he had no place of residence of his own he is staying with his sister along with his family members. Therefore the tenanted premises is bonafide required for residence of the original landlord along with his family. It is further pleaded that in violation of terms of Ext.A1 agreement the tenant had started business of “re-soling” of tyres in the premises and for that purpose he had installed heavy machines embedded in the floor of the building, thereby causing damage to the building. It is contended that the value of the petition schedule building has been diminished considerably due to the unauthorised use. Therefore eviction under Section 11(4)(ii) was also sought for. 3. The tenant resisted the petition contending that there are no primary facilities available in the building for residential purpose. There was an oral agreement through which the tenant was permitted to conduct tyre re-soling business at the premises. It is admitted that the tenant is residing somewhere else. Contention is that the building in question was not used in any manner so as to destroy its value or utility. There is no other suitable building available RCR.16/2010 3 in the locality for shifting the business being conducted in the schedule premises. The need projected by the landlord was opposed as a ruse to evict the tenant with an intention to dispose of the property. With respect to the arrears of rent it is contended that there is security deposit of Rs.1,20,000/- entrusted by the tenant to the landlord and the said amount can be adjusted against the arrears of rent. 4. Evidence before the trial court consisted of oral testimony of the original landlord examined as PW1. PW2 is a witness examined on his behalf. Ext.A1 to A11 documents were marked on behalf of the landlord. RW1 is the tenant and RW2 is a witness examined on his behalf. Ext.B1 & B2 documents were marked on behalf of the tenant. Ext.C1 commission report was marked through the Advocate Commissioner examined as CW1. 5. Execution of Ext.A1 agreement is admitted. Recital of Ext.A1 reveals that the building in question was let out for residential purpose and the tenant had paid an amount of Rs.30,000/- towards security. Contention of the tenant is that besides the amount of Rs.30,000/- a sum of Rs.1,20,000/- was paid to the landlord, on his demand. The trial court after evaluating evidence found that there is RCR.16/2010 4 material contradictions with respect to the pleadings of the tenant in this regard and that the tenant was not at all successful in proving payment of the alleged sum of Rs.1,20,000/-. The bonafide need urged by the landlord was resisted based on the contention that the tenanted premises does not have amenities for using the same as a residential house. But the trial court noticed the specific recital in the admitted rent deed of Ext.A1 that the building in question was let out for residential purpose. Further it is brought out through Ext.C1commission report that the building is having 7 rooms. PW2 had deposed before the court that he was residing in the house in question, earlier. The tenant was not successful in establishing that the landlord has got any other building of his own, suitable for his residence. Relying on settled legal principles that the tenant cannot dictate terms to the landlord regarding his need or choice of the building, the trial court found that the landlord was successful in establishing bonafides of the need projected. The trial court had repelled contention of the tenant seeking protection of the second proviso to Section 11(3) on the ground that the need for which the building was taken on rent is for residential purpose, as revealed from Ext.A1. With respect to RCR.16/2010 5 use of the building for conducting re-threading business by installing heavy machineries, the trial court found that convincing evidences of such usage has been brought out through Ext.C1 commission report and through oral testimony of the Advocate Commissioner examined as CW1. Going by the specific recitals in Ext.A1, the Rent Control Court found that the use of the tenanted premises in contravention of terms of the lease is in such a manner which will cause diminution to the value and utility of the building. Since such usage is against the consent of landlord, the same will amount to permanent and material alteration in the perspective of the landlord. Hence eviction under Section 11(4)(ii) was also ordered. 6. The Appellate Authority conducted a total re- appraisal of the evidence on record. With respect to contentions of the tenant against eviction sought for on the ground of rent arrears, the appellate authority found that the allegation regarding payment of additional security of Rs.1,20,000/- cannot be countenanced, in view of terms of the admitted documentary evidence of Ext.A1, wherein it is specifically stipulated that the security deposit paid is Rs.30,000/- only. Such contention was not found to be RCR.16/2010 6 admissible in view of Section 92 of the Evidence Act. It was further found that even assuming that there was payment of any further security deposit, the tenant cannot insist that the landlord should adjust the same towards arrears of rent. The decision of this court reported in 2002(2) KLT 158 is relied on in order to support the above proposition. 7. Regarding the bonafide need for own occupation the appellate court found that the wife and son of the original landlord is impleaded and they need the tenanted premises for residential purpose. On evaluating evidence on record, the Appellate Authority concurred with the finding of the Rent Control Court repelling the contentions of the tenant that the building is not suitable for residential purpose. The findings of the Rent Control Court on the aspect of benefits of second proviso to Section 11(3) was also upheld by the appellate authority. Eventhough a dispute regarding title of the landlord was raised at the appellate stage, such contention was not adverted to due to lack of pleadings in that regard. 8. On evaluating the evidence, mainly based on the commission report, the Appellate Authority had also concurred with findings that there is material alteration RCR.16/2010 7 effected in usage of the building, which had caused diminution in value and utility. Accordingly the order of eviction passed under Section 11(2)(b), 11(3) and 11(4)(ii) were confirmed. The revision petitioner cannot point out any material irregularity or misappreciation of evidence. Under the revisional jurisdiction conferred by virtue of Section 20 of the Act we do not find any fact to interfere with the findings or facts arrived by the court below. We do not think any re-consideration of the findings on facts is warranted, especially the Appellate Authority being the final fact finding forum. 9. Learned counsel for the revision petitioner made an attempt to project the subsequent event of death of the original landlord as a fact which is having material impact on the need projected under Section 11(3). But on going through the pleadings and evidence, it is found that the need urged by the original landlord was requirement of the premises for residence of himself and his family. Since there is no evidence to prove that the legal heirs of the original landlord, who are respondents herein, has got any other place of residence of their own, such a contention cannot be countenanced as a subsequent event which will eclipse the RCR.16/2010 8 need projected. Therefore we do not find any illegality, irregularity, or impropriety warranting interference with findings arrived by the court below. Accordingly the revision petition deserves no merit, and is liable to be dismissed. 10. Learned counsel for the revision petitioner made a plea for indulgence of this court to grant one year time for the revision petitioner/tenant to vacate the premises on the ground that a running business of tyre re-soling is being conducted therein. Counsel appearing for the respondents/landlords opposed such prayer. Having considered facts and circumstances of the case we are inclined to grant time upto 31.7.2010 for surrendering vacant possession of the scheduled premises. 11. Therefore, while dismissing the revision petition the revision petitioner/tenant is granted time for surrendering vacant and peaceful possession of the petition schedule building to the respondents landlords till 31.7.2010 on the following conditions: (i). The revision petitioner/tenant shall execute an affidavit before the Execution Court or the Rent Control Court as the case may be, undertaking to hand over vacant and peaceful possession of the schedule premises to the RCR.16/2010 9 respondents/landlords on or before 31.7.2010, and shall make payment of arrears of rent, if any due, within a period of one month from today and also continues to pay occupational charges at the rate of the agreed rent of Rs.3,500/- per month, till surrender of the premises. (ii). the execution court is directed to put off delivery of the petition schedule building till 1.8.2010 once filing of an affidavit as directed above within a period of one month from today and proof regarding payment of arrears of rent and continued payment of occupational charges, is noticed. (PIUS C. KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) okb