IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 RCRev..No.247 of 2008 (F) ------------------------------- RCA.76/2007 of RENT CONTROL APPELLATE AUTHORITY,KOZHIKODE RCP.120/2004 of ADDL.M.C.-II,KOZHIKODE .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS ---------------------------------------------------------------- 1. THAYYIL MOHAMMAD HAJI AGED 61 YEARS, S/O. KUTTIALI. 2. KOTTATHARA VALIYAKATH ABDUL AZEEZ AGED 56 YEARS, S/O.KUNHI MOHAMMAD MASTER. 3. PUNNASSERI HYDER HAJI AGED 63 YEARS, S/O.KADER, ALL ARE RESIDING IN THEKKANKUTTUR AMSOM DESOM TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.V.SREENATH SRI.P.K.SAJEEV RESPONDENTS/RESPONDENTS/RESPONDENTS ------------------------------------------------------- 1. ABDUL MATEEN, AGED 50 YEARS S/O. ISMAIL. 2. SEEMA SUHAIL, AGED 48 YEARS D/O. ISMAIL. 3. BEEBI FATHIMA ISMAIL,AGED 69 YEARS D/O. GAWAI MEERAN. 4. MUHAMMAD SUHAIL ISMAIL, AGED 57 YEARS S/O.ABOOMOHAMMAD ISMAIL. 5. SAMIHA, AGED 47 YEARS D/O. ISMAIL. 6. SAMEENA, AGED 46 YEARS RCRev..No.247 of 2008 (F) -2- 7. ABDUL MAJEED, AGED 49 YEARS S/O. ISMAIL, RESPONDENTS 1 TO 7 ARE RESIDING AT SEEMA MAHAL, SAGAR ROAD, BHATKAL, NORTH CANARA DISTRICT, KARNATAKA STATE. 8. M/S SEEMA, A PARTNERSHIP FIRM HAVING ITS PRINCIPAL PLACE OF BUSINESS AND OFFICE SITUATED NEAR GENERAL HOSPITAL IN NAGARAM AMSOM DESOM OF KOZHIKODE TALUK, REP. BY ITS PARTNER ABDUL MAJEED, 7TH RESPONDENT. (RESPONDENTS 1 TO 6 ARE ALSO REP. BY THEIR DULY CONSTITUTED POWER OF ATTORNEY HOLDER, ABDUL MAJEED, 7TH RESPONDENT) ADV. SRI.AVM.SALAHUDIN FOR R1-8 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ R. C. R. No.247 of 2008 ------------------------------------------------ Dated this the 8th day of June, 2009 ORDER Pius C. Kuriakose, J Under challenge in this revision initiated at the instance of the tenants is an order of eviction passed under Section 11(2)(b) concurrently by the Rent Control Court and the Appellate Authority. Parties are referred to as landlord and tenant respectively. 2. The allegation of the landlord as stated in the Rent Control Petition was that rent at the rate of Rs.5,250/- per mensm is in arrears with effect from 01/01/2000. The tenant who is conducting a lodging house in the petition schedule building did not dispute the contract rent. The contention prominently raised was that he has expended a total amount of R. C. R. No.247 of 2008 -2- Rs.3,92,793/- towards repairs of this building. Ext.B4 agreement executed between the parties (the landlord being represented by his duly constituted power of attorney holder) was relied on in support of the above contention. Apart from Ext.B4, the tenant produced vouchers Exts.B5 to B108 to show that he had expended amounts towards repairing the building. Initially, the landlord's case in answer to Exts.B5 to B108 was that Ext.B4 is not binding on him inasmuch as he has not authorised his power of attorney holder to enter into Ext.B4 on his behalf. He also denied the tenants' contention that amounts were expended against Exts.B5 to B108. The Rent Control Court on evaluating the evidence would repel the landlord's case that Ext.B4 is not binding on him. It was found R. C. R. No.247 of 2008 -3- that Ext.B4 was executed on behalf of the landlord by his duly constituted power of attorney holder. Never- the-less, the court below did not become inclined to accept the tenants' case that amounts were expended under Exts.B5 to B108 pursuant to Ext.B4. The Rent Control Court found that there was no evidence to show that the landlord had been requested by the tenant to carry out the repairs. The Rent Control Court also found that the question whether the tenant had expended so much of amounts against Exts.B5 and B108 is capable of being proved by producing the account books which were being maintained by the tenant who was running a lodging house. The Appellate Authority also would substantially endorse the findings of the Rent Control Court in this regard R. C. R. No.247 of 2008 -4- and dismiss the appeal preferred by the tenant. 3. We have heard the submissions of Sri.V.Sreenath, learned counsel for the revision petitioners and those of Sri.A.V.M.Salahudin, the learned counsel for the landlord. 4. Sri.V.Sreenath would assail the findings of the Rent Control Court and the Appellate Authority very forcefully. He submitted that the Rent Control Court having found that Ext.B4 was an agreement duly entered into on behalf of the landlord was not justified in denying the tenants' case of having expended amounts against Exts.B5 to B108. The genuineness of Exts.B5 to B108 was beyond question, according to Sri.V.Sreenath, the learned counsel for the tenants. 5. Sri.A.V.M.Salahudin, the learned counsel for R. C. R. No.247 of 2008 -5- the landlord would submit that this Court sitting in revision under Section 20 of Act 2 of 1965 is not expected to reappraise the evidence and substitute the conclusions of fact already entered into by the fact finding authorities under the statutes for its own finding. According to him, the building in question, has got as many as 34 rooms and the tenant is making a fortune out of the building without caring to pay even the paltry monthly rent agreed upon during the past nine years. 6. We have anxiously considered the rival submissions. We do not find reason to disapprove the findings of the Rent Control Court and the Appellate Authority that Ext.B4 was duly entered into on behalf of the landlord also by his duly constituted power of R. C. R. No.247 of 2008 -6- attorney holder. But at the same time, we find that Ext.B4 was entered into between the parties at a time when the statutory authority, the Accommodation Controller was seizing of an application submitted by the tenants under Section 17 of Act 2 of 1965. The reason mentioned in Ext.B4 for entering into Ext.B4 is the long pendency of the proceedings before the Accommodation Controller and one of the important provisions in Ext.B4 is that the Accommodation Controller will be informed of Ext.B4 by both the parties by producing the same before the Accommodation Controller and by filing a joint statement. Admittedly the Accommodation Controller was never informed about Ext.B4 and the fiat of the Accommodation Controller, the statutory authority has R. C. R. No.247 of 2008 -7- not been obtained by the parties to Ext.B4. 7. Leaving that alone, the important question to be considered is whether the contention of the petitioner that he has expended Rs.3,92,793/- towards repairing the building pursuant to Ext.B4 is true. Sri.V.Sreenath, the learned counsel for the revision petitioners would fairly concede before us that the total amount expended by the tenants-petitioners pursuant to Ext.B4 is only Rs.1,91,000/- and not Rs.3,92,793/- as claimed by the revision petitioners. He also agreed that on the terms of Ext.B4, it is the obligation of the tenant to bear 50% of the amount amounting to Rs.95,500/-. Even if the petitioners' case that they have expended Rs.95,500/- towards repairing the building pursuant to Ext.B4 is accepted, R. C. R. No.247 of 2008 -8- then also it is evident that as on the date of filing of the Rent Control Petition, rent was in arrears, which means an order of eviction under Section 11(2)(b) was inevitable. Now the Rent Control Court and the Appellate Authority have concurrently found that it is difficult to accept the case of the petitioners of having expended amounts on the basis of Exts.B5 to B108 pursuant to Ext.B4. The reasons stated by the authorities is that Exts.B5 to B108 are mere vouchers and if those vouchers are genuine vouchers then it will definitely find a place in the account books maintained by the tenants or in the report by the Advocate Commissioner. The above reason, according to us, is reasonable. We, sitting in revisional jurisdiction under Section 20 of Act 2 of 1965, are not expected to R. C. R. No.247 of 2008 -9- interfere with the findings entered into concurrently by both the courts below when they are reasonable and founded on evidence. 8. Having gone through the contours of this Court's jurisdiction under Section 20 of Act 2 of 1965, we do not find any warrant for interference. We hereby confirm the order of eviction passed under Section 11(2)(b) of Act 2 of 1965 by the courts below. 9. It is finally submitted by Sri.V.Sreenath, the learned counsel for the petitioners that the entire arrears of rent due in respect of petition schedule building is in deposit before the Rent Control Court. The counsel requested that the above deposit be noticed and the order of eviction under Section 11(2) (b) be set aside under Section 11(2)(c). R. C. R. No.247 of 2008 -10- 10. Sri.A.V.M.Salahudin, the learned counsel for the respondents/landlord would submit that the amount deposited will not cover the entire amount actually due. We are of the view that the sufficiency of the amount under deposit is a matter to be decided by the Rent Control Court in a proceeding under Section 11(2)(c) to be initiated by the revision petitioner/tenant. Therefore, even as we are dismissing the revision confirming the order of eviction passed by the Rent Control Court and the Appellate Authority, we permit the revision petitioner to file a petitioner under Section 11(2)(c) before the Rent Control Court. The Rent Control Court will in that proceeding pass appropriate orders deciding the correct amount to be deposited/paid by the revision R. C. R. No.247 of 2008 -11- petitioners/tenants to have the order of eviction set aside under Section 11(2)(c). 11. This RCR is dismissed, but in the circumstances, without any order as to costs. It is needless to mention that the amount under deposit is due to the landlord who is entitled to withdraw the same. If for any reason the Rent Control Court finds that the amounts under deposit are not sufficient that court will grant at least two months' time to the revision petitioner to deposit the deficit. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-