IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 RCRev..No. 460 of 2005() ------------------------ RCA.161/2003 of ADDL.DISTRICT COURT, KOZHIKODE RCP.129/2001 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------- ANNIE RICHARD, AGED 69 YEARS, W/O. K. RICHAR, 4/565, KARIMBIL PARAMBA, THERVEEDU LANE, KACHERI AMSOM, KURUMBARAKATTUSSERI DESOM, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): PETITIONER: -------------------------- LEELA ARTHUR VIJAYAN, AGED 68 YEARS, W/O. VIJAYAN, RARICHAN ROAD, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.P.K.SAJEEV SRI.V.SREENATH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.2393/2005 IN RCR NO.460/2005 DISMISSED. 21-12-2009. SD/- PIUS C.KURIAKOSE, JUDGE SD/- K.SURENDRA MOHAN, JUDGE // True Copy // P.A. To Judge PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.R. No. 460 of 2005 ``````````````````````````````````````````````````````` Dated this the 21st day of December, 2009 O R D E R Surendra Mohan, J. The tenant is in revision. Under challenge are the concurrent orders of eviction passed by the Rent Control Court and confirmed by the Rent Control Appellate Authority under Section 11(4)(ii) of the Kerala Buildings(Lease and Rent Control) Act 2 of 1965 (hereinafter referred to as ‘the Act’ for short). 2. The revision petitioner/ tenant is in occupation of one room in a line building consisting of 8 rooms, which are all used as residential apartments. The Rent Control Petition was filed by the landlord alleging that the tenant had made additional constructions to the building unauthorisedly, thereby reducing the value and utility of the building, both materially and permanently. The allegation of the landlord was disputed by the tenant. According to the objection filed by the tenant, the additional construction made was only a work area which was capable of being dismantled at any time. Further, the additional construction only enhanced the RCR.460/05 : 2 : utility and value of the building. According to the tenant, the roof was changed into tin roof only to safeguard against fall of coconuts and cadjan leaves from the overhanging coconut palms. 3. The evidence in the case consists of the oral evidence of PW1 and RW1 and Exts.C1, C1(a) and C2 Commission reports and plan. 4. On a consideration of the rival contentions of the parties, in the light of the evidence on record, the Rent Control Court found that the additional constructions made, reduced the value and utility of the building materially and permanently. Therefore, an order of eviction was passed by the Rent Control Court against the tenant. Though the tenant challenged the order of eviction before the Rent Control Appellate Authority, Kozhikode, the said authority has also confirmed the order of eviction. It is against the said order that the tenant has filed the above revision. 5. We have heard Sri.R.Sudhish, who appears for the tenant as well as Sri.P.K.Sajeev, who appears for the landlord. We have been taken through the depositions of the witnesses as well as the Commissioner's reports and the other items of RCR.460/05 : 3 : evidence in the case. 6. According to the counsel for the tenant, the Commission report shows that similar constructions have been made by the other tenants, who are occupying the rest of the rooms in the line building also. He also referred to the portions in the Commission report stating that there was an overhanging coconut tree above the building which was a potential threat to the original tiled roof. According to the counsel, the work area that was provided was capable of being removed at any time without much difficulty. Further, the additional construction did not cause inconvenience or trouble to the other tenants or the landlord. The above facts were disputed by the counsel for the landlord pointing out that the question as to whether the construction affected the value or utility of the building had to be approached from the point of view of the landlord and not from the point of view of the tenant. 7. We have considered the contentions of the rival parties anxiously. 8. It is the definite case of the tenant in the objections filed in the RCP that the additional constructions made were not of RCR.460/05 : 4 : a permanent nature and that the additional constructions did not affect the value or utility of the building, materially and permanently. The above contentions presuppose an admission that constructions were actually made by the tenant. Though the counsel for the tenant referred to Ext.C2 Commission report to support the contention that the additional constructions were not made by her but that the same was already there as part of the building, the same cannot be accepted in view of the definite case pleaded in the objections. The rent deed has not been produced by either of the parties. There is nothing on record to show that the additional constructions made were with the permission of the landlord. In the above state of the evidence in the case, we have no hesitation in endorsing the finding of the authorities below that the additional constructions made were unauthorised. The landlord has put forward a contention that the additional construction made causes serious inconvenience to the tenants occupying other portions of the line building. There is no evidence on record to contradict the above assertion. Value and utility are concepts that are to be considered from the view point of the RCR.460/05 : 5 : landlord and in this case they have been so considered, rightly by the authorities. We do not find any illegality, irregularity of impropriety in the findings of the authorities below, warranting interference with the same in exercise of our revisional jurisdiction. We confirm the orders of eviction passed by the authorities below. Therefore, the revision fails and is dismissed. 9. However, considering the last plea of the counsel for the revision petitioner, for grant of some time to vacate the premises, we grant time up to 30-06-2010 subject to the following conditions:- (i) The tenant shall file an affidavit before the Rent Control Court or the execution court, as the case may be, within a period of one month from today, unconditionally undertaking to surrender vacant possession of the premises to the landlord on or before 30- 06-2010. (ii) The tenant shall also pay all arrears of rent due in respect of the premises and shall continue to pay rent for the period commencing from 01-01-2010 at the rate of Rs.100/- per month till vacant possession of the premises is surrendered to the RCR.460/05 : 6 : landlord, without default. 10. It is made clear that the tenant shall be entitled to the benefit of the time granted only if he complies with the conditions stipulated above. In the above circumstances of the case, there will be no order as to cost. Sd/- (PIUS C. KURIAKOSE, JUDGE) Sd/- (K.SURENDRA MOHAN, JUDGE) aks // True Copy // P.A. To Judge