IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 RCRev..No. 392 of 2004() ------------------------------------ RCA.NO. 134/2002 of ADDITIONAL DISTRICT COURT, KOZHIKODE RCP.NO. 2/1999 of ADDITIONAL MUNSIFF COURT ,KOZHIKODE-II .................... REVISION PETITIONER/APPELLANT/LANDLADY ---------------------------------------------------------------------- 1. CHINNAPPA KADEEJABI, W/O.AHAMMED KUNHI HAJI,AGED 74,R/ST KADEEJA MANZIL PANNIYANKARA AMSOM & DESOM OF KOZHIKODE TALUK,REP. BY CHINNAPPA ASHARAF, AGED 42, R/AT KADEEJA MANZIL PANNIYANKARA AMSOM & DESOM OF KOZHIKODE TALUK, THE POWER OF ATTORNEY HOLDER & S/O. THE REV.PETITIONER.(DIED) * PETITIONERS 2 TO 8 IMPLEADED * ADDL.P2: C.SAFIYABI, D/O.KADEEJABI, AGED 60 YEARS, AI.WAFA, ARAKKINAR.P.O., CALICUT-28. *ADDL.P3: C.JAMEELA, D/O. KADEEJABI, AGED 58, VASMAH, PULIKKALKADAVU ROAD, POST. PADOOR, MULLASSERY VIA, TRICHUR DISTRICT. * ADDL.P4: C.ASHRAF, S/O. KADEEJABI, AGED 52 YEARS, SOMALAYAM, O.K.ROAD, P.O. THIRUVANNUR, CALICUT-673 029. * ADDL.P5: C.SUBAIR, S/O. KADEEJABI, AGED 50 YEARS, KHADEEJA MANZIL, THIRUVANNUR ROAD, P.O.KALLAI, PANNIYANKARA, CALICUT-673 003. *ADDL.P6: C.NADEER, S/O. KADEEJABI, SOMALAYAM, O.K.ROAD, P.O. THIRUVANNUR, CALICUT- 673 029. * ADDL.P7: C.ABDUL NASAR, S/O. KADEEJABI, AGED 45 YEARS, THIRUVANNUR ROAD, P.O.KALLAI, PANNIYANKARA, CALICUT-673 003. *ADDL.P8: C.SAHEED, S/O. KADEEJABI, AGED 42 YEARS, KHADEEJA MANZIL, 3/718, PARAKKAL, PARIYARAM ROAD, P.O. PARIYARAM, WYNAD DISTRICT. sts R.C.R.NO.392/2004 * ADDL.PETITIONERS 2 TO 8 ARE IMPLEADED AS PER ORDER DATED 16/8/10 IN I.A.NO.2031/10 IN RCR 392/04. BY ADV. SRI.A.V.M.SALAHUDDEEN RESPONDENT(S): RESPONDENTS/TENANTS ------------------------------------------------------------------ 1. MARIYAMBI D/O. THARAMMAL ABDULLAKUTTY, AGED 51 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE. 2. JAMEELA D/O. THARAMMAL ABDULLAKUTTY, AGED 47 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE. 3. HAJJIBI D/O. THARAMMAL ABDULLAKUTTY, AGED 43 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE 4. AMINABI D/O. THARAMMAL ABDULLAKUTTY, AGED 41 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE. 5. MOIDEEN KOYA S/O. THARAMMAL ABDULLAKUTTY AGED 40 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE. 6. ABDU S/O. THARAMMAL ABDULLAKUTTY, AGED 38 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANIYANKARA AMSOM, KOZHIKODE. 7. BAVA, AGED 58 YEARS, 7/412, KALLUVETTUKUZHI, HEMAN BAZAR, KOLATHARA, CHERUVANNUR, NALLALAM PANCHAYAT. 8. RASIYABI, AGED 33 YEARS, D/O. BAVA, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK. 9. LAILA, AGED 31 YEARS, D/O.BAVA, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK. 10. BEERAN KOYA, AGED 29 YEARS, S/O. BAVA, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK. sts R.C.R.NO.392/2004 11. SHEREENA MOIDU, AGED 27 YEARS, D/O. BAVA, 4/834, BEHIND M.S.AUDIO AND VIDEO VELLAYIL, KACHERI AMSOM, DESOM, KOZHIKODE TALUK. * RESPONDENTS 12 & 13 IMPLEADED *ADDL.R12: C.SULAIKHA, D/O. KADEEJABI, AGED 65 YEARS, 2/817, SULAIKHA MANZIL, KANAL ROAD, (PO) ERANHIPALAM, CALICUT-673 006. *ADDL.R13: C.BASHEER, S/O. KADEEJABI, AGED 54 YEARS, MEHRINA, KAYATH ROAD, TELLICHERRY. * ADDL. RESPONDENTS 12 & 13 ARE IMPLEADED AS PER ORDER DATED 16/8/10 IN I.A.NO.2031/10 IN RCR 392 /04. R1 TO R6, R8 TO R11 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R2 TO R6, R8 TO R11 BY SRI.K.JAYAKUMAR, SENIOR ADVOCATE BY ADV. SRI.P.B.KRISHNAN FOR SRI.HARISH R. MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R. No. 392 of 2004 ---------------------------------------------------- Dated this the 11th day of February, 2011 Order N.K.Balakrishnan, J. The short point that arises for consideration in this revision filed by the landlady is whether the construction or doing of any act in the land adjacent to the “building” but which does not form part of the “building” let out to the tenant would entitle the landlady to get an order of eviction under Section 11(4)(ii) of Act 2 of 1965. Brief facts necessary for the case can be stated thus: The petition was filed under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') for eviction on the ground of arrears of rent and also on the ground of user of the building in such a way as to destroy or reduce its value and utility materially and permanently. It was contended by the landlady that the rent was kept in arrears and that in spite of notice, it was not paid. With regard to the claim under Section 11(4)(ii) of the Act, it was contended that the tenants have cut open the northern wall of the petition schedule building and a door was fixed. Besides in the land appurtenant to the building, RCR 392/04 2 a well was constructed without the consent of the landlady. By doing so, it was contended that the tenants used the building in such a manner as to reduce its value and utility materially and permanently. 2. The tenants resisted the petition stating that no rent was kept in arrears. It was contended that the allegations regarding the user of the building in such a manner as to reduce its value and utility materially and permanently is not true. By constructing bathroom the value and utility of the building was not diminished but has only enhanced its value. It was further contended that the allegation that a new well was constructed is not true. The well and bathroom were in existence even when the lease was granted. 3. Before the Rent Control Court P.Ws.1 and 2 were examined and Exhibits A1 to A7 were marked on the side of the landlady. On the side of the respondents/tenants, one of the tenants was examined as R.W.1. The learned Rent Controller found that a sum of Rs.7000/- was paid by the tenants during the pendency of the R.C.P. and hence, no rent was in arrears. But at the same time, it was found that they are liable to pay 6% interest on arrears of rent and thus order of eviction was passed RCR 392/04 3 under Section 11(2)(b) also. It was further found that the tenants have dug a well in the land appurtenant to the building and a bath room was also constructed and thus the value and utility of the building was materially and permanently diminished and thus the order of eviction was passed under Section 11(4)(ii) also. The tenants filed appeal challenging the findings of the court below. The Rent Control Appellate Authority found that the plea raised by the tenants that the well and bathroom were in existence even at the time of agreement, is fallacious. Relying on the evidence of P.W.2, the Advocate Commissioner and Exts.A5 and A6 reports filed in the suit filed by the landlady against the tenants, it was found that the well was constructed shortly before the litigation. It was also found that the bathroom was constructed using hollow bricks and it was constructed recently, i.e., just prior to the inspection of the Advocate Commissioner. But the learned Appellate Authority found that the well was dug not within the land leased out to the tenants but outside. The Appellate Authority further found that the well which was dug will not affect the structural stability of the building. Similarly, it was also found that the bath room constructed by the tenants did not affect the value and utility of the building since it RCR 392/04 4 was not constructed in the land forming part of the lease. Though it was alleged that a door was provided from the house to the northern side so as to facilitate entry to the bathroom, the learned Appellate Authority found that neither P.W.2 (Advocate Commissioner) nor P.W.1 did state that the door so fixed would cause diminution in the value and utility of the building materially or permanently. Thus the appeal was allowed and the order of eviction passed under Section 11(4)(ii) was set aside. 4. Mr.A.V.M.Salahuddeen, learned counsel appearing for the revision petitioner would refer to the decisions of the Supreme Court in Vipin Kumar v. Roshan Lal Anand & Ors.(JT 1993(3) S.C. 171) and Gurbachan Singh v. Shivalak Rubber Industries (AIR 1996 S.C. 3057). Mr.Salahuddeen would also refer to the decisions of this court in Mohanan v. Muhiyudheen (2010(1) KLT 512), Francis v. Davis (2005(3) KLT 815) and Seethalakshmi Ammal v. Nabeesath Beevi (2003(1) KLT 391). According to the revision petitioner, the value of the tenanted building has been impaired and the utility of the building was diminished or reduced considerably. The impairment of the value or utility of the building is to be looked at from the perspective of the landlady. The construction or alteration, RCR 392/04 5 according to the tenants, may increase the value of the building, but in the point of view of the landlady, it will reduce or decrease the value of the building. The reduction or impairment in the value or utility of the building has to be adjudged from the point of view of the landlady. Thus, the learned counsel for the revision petitioner would submit that by looking at the perspective of the landlady, it can be very well found that she dug the well and constructed latrine/bathroom in flagrant violation of the lease agreement. Though the argument advanced by the learned counsel is attractive, it is pointed out by Sri.Jayakumar, the learned Senior Counsel appearing for the respondents/tenants that the well even according to the landlady was not dug in the land appurtenant to the building which forms part of the lease. In other words, even according to the landlady, the well was dug by the tenant trespassing into the property which is outside the tenanted premises and that was the reason why the landlady filed a suit for injunction against the tenants restraining them from digging the well. Similar is the position with regard to the construction of the latrine/bathroom as well. 5. Referring to Ext.A7 notice sent on 11.7.1977, it was held that the lease does not take in the bathroom nor does it show RCR 392/04 6 that there was a well in existence which was covered by the lease. Therefore, the contention advanced by the tenants that there was well and bathroom in existence even at the inception of the lease and that the well and bathroom form part of the lease was rightly found against the tenants by the learned Appellate Authority. If the land where the well was dug does not form part of the tenanted premises, it cannot be construed that it is an appurtenant land coming within the definition of building under Section 2(1) of the Act. If only the appurtenant land was let to the tenants, it would include the term 'building' occurring in Section 2(1) of the Act. Since the well and the bathroom put up by the tenants do not from part of the land let out by the landlady along with the main structure, it cannot be said that the digging of the well or the construction of the bathroom outside the building let out would attract the objectionable user of the building as mentioned in Section 11(4)(ii) of the Act. In other words, if only the tenant 'uses' the 'building' let out by the landlady in such a manner as to reduce its value and utility, it would attract Section 11(4)(ii). Since the construction of bathroom/latrine and digging of well was done outside the 'building' and as a suit for injunction was filed by the landlady in RCR 392/04 7 respect of the same, she cannot now turn round and contend that it amounts to 'use' of the 'building' so as to attract the mischief of Section 11(4)(ii). Had the constructions been done in the appurtenant land let out to the tenants, coming within the definition of “building”, then the landlady could have certainly sustained a claim for eviction under Section 11(4)(ii) of the Act. 6. The only other complaint that can be addressed by the landlady is with regard to the cutting of the northern wall to provide a door to the northern side. But there is no acceptable evidence to show that the door fixed on the northern wall has caused diminution in the value and utility of the building. There is no legal evidence to show that the value and utility of the building was reduced materially or permanently. Since there is no legal evidence to hold that the tenants have 'used' the 'building' in such a manner as to reduce its value and utility materially and permanently, we find that the learned Appellate Authority was perfectly justified in disallowing the claim under Section 11 (4)(ii). So much so, this revision petition must fail. 7. We notice that the rent which is presently paid by the tenants is only Rs.50/-. It is stated that the building is situated within 3.5 K.M. away from the Kozhikode Court Complex. RCR 392/04 8 Considering the location of the building, we find that if let out, now the petition schedule building would fetch more than Rs.1000/- per month. Therefore, we refix the monthly rent at Rs.1000/- payable with effect from 1.3.2011. It is open to the parties, if aggrieved, to move the Rent Control Court for regular fixation of the fair rent. It was also submitted by the learned counsel for the landlady that the subsequent rent was kept in arrears. There is already an order of eviction passed under Section 11(2)(b). The said order of eviction can be got vacated under Section 11(2)(c) of the Act. Subject to what is stated above, this revision is dismissed. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 392/04 9