IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RCRev..No. 394 of 2011() --------------------------------- RCA.47/2005 of DISTRICT COURT, THALASSERY RCP.250/2003 of ADDL.MUNSIFF COURT, KANNUR .............................. .................... REVISION PETITIONER/ APPELLANT/ RESPONDENT: --------------------------------------------------------------------------- M.P.LAKSHMANAN, AGED 67, S/O.KORAN, PROPRIETOR, NORTH MALABAR KERA PRODUCTS, VALIYANNUR, VARAM.P.O., KANNUR DISTRICT. BY ADV. SRI.ABRAHAM K.JOHN SRI.P.K.BALAKRISHNAN SMT.DIVYA K.NAIR RESPONDENT(S): ----------------------- T.K.RENUKA, AGED 54, D/O. RAGHAVAN, VALIYANNUR AMSOM AND DESOM, VALIYANOOR.P.O., KANNUR - 670954 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STU RCRev..No. 394 of 2011() APPENDIX PETITIONER'S ANNEXURES: A1 : COPY OF SALE AGREEMENT DTD 01/03/1994 IN FAVOUR OF THE REVISION PETITIONER. A2 : COPY OF THE DEPOSITION OF THE RESPONDENT R.C.P. NO.193/07 OF RENT CONTROL COURT, KANNUR. A3 : COPY OF THE DEPOSITION OF THE RESPONDENT IN R.C.P. NO.94/04 OF RENT CONTROL COURT, KANNUR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE. STU PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- R.C.R No.394 of 2011 -------------------------------------------------- Dated this the 8th day of November, 2011 O R D E R Pius C.Kuriakose, J Under challenge in this revision filed by the tenant is the judgment of the rent control appellate authority confirming the order of eviction passed by the Rent Control Court on the ground of bonafide need for own occupation under Section 11(3) and user of the building in such a manner as to reduce the value and utility of the building materially and permanently under Section 11(4) (2). The need projected by the landlady under Section 11 (3) was that she wants to start business in sale of pooja articles. The case of the landlady in the context of the ground under Section 11(4) (ii) was that the tenant effected various alternations and modifications to the building let out to the tenant without the landlady's consent and that those alternations and modifications have resulted in the value and utility of the building becoming materially and permanently reduced. The tenants defence in the contest of the ground under 11(3) was that the need projected is not bonafide. There is a further contention that the tenant is entitled to the protection of second R.C.R No.394 of 2011 2 proviso to sub section 3 of Section 11. The defence to the ground under Section 11(4)(ii) was that all the alternations and modifications were carried out by the tenant with the landlady's consent and under the very eyes of the landlady. These alternations and modifications have not resulted in the value and utility of the building becoming materially or permanently reduced. On the contrary, the value has only become increased. 2. The Rent Control Court conducted an enquiry into the pleadings raised by the parties. In the enquiry, the evidence consisted of the oral evidence of the landlady as PW1 and that of the tenant as RW1. On the side of the tenant documents proved were Exts.P1 to P8. On evaluating the evidence the Rent Control Court concluded that the bonafides of the need under Section 11 (3) stood established. It was also concluded that the tenant was unsuccessful in proving that he is entitled for the protection of the second proviso to sub Section 3 of Section 11. As regards the ground under Section 11(4)(ii) it was noticed that there was no evidence to accept the defence case that the conversion of the building as one from a 200 sq.feet room to the present one with an area of 1000 sq. feet was carried out with the landlady's consent. Taking the view that from the landlady's point of view the value and utility of the building became materially and R.C.R No.394 of 2011 3 permanently reduced, the Rent Control Court found that the eviction ground under Section 11(4)(ii) was established. Accordingly, order of eviction was passed on both the grounds included. 3. The tenant preferred an appeal to the Rent Control Appellate Authority. Before the learned appellate authority the tenant produced certified copy of the oral evidence given by the landlady in another proceedings between the parties for fixation of the rent of the very same building. The oral evidence of the landlady in that case indicated that the conversion of the room to its present condition was made with the landlady's consent. The learned appellate authority dismissed the I.A for reception of the above deposition copy. The learned authority went on to reappraise the evidence and to concur with all the findings of the rent control court. Accordingly, the appeal was dismissed. In this revision filed under Section 20, various grounds are raised challenging the judgment of the appellate authority. 4. Sri.Abraham K.John the learned counsel for the revision petitioner addressed strenuous submission before us based on all those grounds. The learned counsel submitted that the appreciation of evidence by the Rent Control Court as well as the appellate authority was thoroughly irregular and that the R.C.R No.394 of 2011 4 same has resulted in denial of justice to the tenant. Mr.Abraham K.John would particularly highlight the grounds against the order of eviction passed under Section 11(4)(ii). The learned counsel submitted that the appellate authority could have at least remanded the rent control petition to the Rent Control Court so that the certified copy of the deposition of the landlady in the fair rent proceedings could be brought on record. The learned counsel also submitted that very valuable machineries have been installed by the revision petitioner in the coconut oil extraction unit which is being conducted by him in the schedule premises. The removal of these machineries is likely to endanger the building. Sri.Abraham K. John also submitted that the eviction order will work out irreparable hardship to the revision petitioner. 5. We have given our anxious consideration to the very persuasive submissions of Sri.Abraham K.John. But we must remind ourselves of the well delineated contours of our present jurisdiction under Section 20. In this jurisdiction we are not expected ordinarily to make a re-appraisal of the evidence for the purpose of arriving at conclusions of fact different from those arrived at by the fact finding authorities. We have gone through the order of appellate authority and the order of the Rent R.C.R No.394 of 2011 5 Control Court. We find that all the factual findings entered therein are well founded on evidence on record. We shall deal first with the eviction order passed under Section 11(4) (ii). The principal bone of contention between the parties is whether without the landlady's consent that the tenant carried out the substantial alterations to the petition schedule building- alterations by which 200 sq.feet room is converted as 1000 sq.feet. The tenant was unable to produce even a scrap of paper to prove that it was with the landlady's consent that these alternations were effected. We find it extremely difficult to accept the tenants case (like the statutory authorities also) that oral consent was given by the landlady to carry out such substantial alternations to the building. The submission of Sri.Abraham K.John that the learned appellate authority should have accepted the documents produced before the appellate authority and remanded the rent control petition for re- considering the ground under Section 11(4)(ii) also does not appeal to us much. The documents produced before the appellate authority was the deposition of living person. The same cannot be substantive evidence. Its utility at best is for the purpose of confronting the person while cross examining under Section 145 Evidence Act for the purpose of contradiction. In R.C.R No.394 of 2011 6 the instant case no such endeavour was made by the revision petitioner while the landlady was in the box. 6. We shall now deal with the ground under Section 11 (3). It was the landlady herself who give the oral evidence. Her evidence was not shorten in cross examination. We do not find any infirmity with the conclusions concurrently arrived at that the need projected by the landlady is bonafide. The same is the position regarding the finding under the second proviso to sub section 3 of Section 11. Having regard to the ratio emerging from biding precedents such as Francis V. Sreedevi Varassiar (2003(2) KLT 230(FB) and the judgment of the Supreme Court in Kunhamma V. Akkali Purushothaman (2007(3) 599 SC., we are in agreement with the statutory authorities that the tenant was unsuccessful in proving that he satisfies both the ingredients of the second proviso to sub section 3 of Section 11. The revision petition fails and it is dismissed. PIUS C. KURIAKOSE JUDGE K.HARILAL ab JUDGE