IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 RCRev..No. 377 of 2005(D) ------------------------------ RCA.93/1998 of ADDL. DISTRICT COURT (ADHOC-I), THALASSERY RCP.36/1996 of RENT CONTROL COURT, PAYYANNUR .................... PETITIONER/RESPONDENT/RESPONDENT: ---------------------------------------------- PULINTHANATH BRIJITHA JOSEPH, AGED 49 YEARS, D/O. XAVIOUR, RESIDING NEAR SUMANGALI TALKIES, PAYYANNUR, PAYYANNUR AMSOM, DESOM, P.O. PAYYANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): APPELLANT/1ST PETITIONER: ----------------------------------------------------- P.M. KUNHIRAMAN, S/O.(LATE) KANAN, AGED 70 YEARS, `SREENIVAS HOUSE', THAYINERI, PAYYANNUR AMSOM, DESOM, P.O. PAYYANNUR. ADV. SRI.M.V.AMARESAN FOR R1 SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.377 of 2005 ------------------------------------------------ Dated this the 22nd day of September, 2010 ORDER Gopinathan, J The tenant/respondent in RCP.36/96 on the file of the Rent Control Court, Payyannur is the revision petitioner. The respondent/landlord in R.C.P No.9/94 obtained a compromise order of eviction under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the “Act”. Ext.B1 is the compromise order. In pursuance of Ext.B1 the building was re-constructed and the revision petitioner was re-inducted on 01/06/95 in one of the rooms for which Ext.A5 agreement was R. C. R. No.377 of 2005 -2- executed. Alleging that despite Ext.A5 and the revision petitioner put in possession of the building, it was not occupied, but kept closed, the respondent moved the Rent Controller seeking an order of eviction under Section 11(4)(v) of the Act. 2. The revision petitioner contended that she was running a Clinical Laboratory in the leasehold and that in the reconstructed building though a wash basin was fitted, drainage was not provided and therefore, she could not run the laboratory for want of facility for drainage of waste water. 3. During the course of enquiry, the respondent was examined as PW1. The revision petitioner and the Sub Registrar, Peringome Sub Registry Office was examined as RWs.1 and 2. On R. C. R. No.377 of 2005 -3- the side of respondent Exts.A1 to A7 were marked and on the side of the revision petitioner Exts.B1 to B4 were marked. The Advocate Commissioner who filed Exts.C1 and C2 reports was examined as CW1. The Rent Controller, on an appraisal of the evidence accepted the contention raised by the revision petitioner that for want of drainage for waste water she could not occupy the building. Consequently, the petition was dismissed. 4. Being aggrieved respondent took up the matter in appeal before the Rent Control Appellate Authority, Thalassery. The Appellate Authority found that Ext.B1 compromise order does not contain a provision for providing drainage for the waste water and in the circumstances, the revision petitioner is not entitled to the same and R. C. R. No.377 of 2005 -4- it cannot be taken as sufficient cause for non- occupation of the petition schedule building. Consequently, the appeal was allowed and the revision petitioner was directed to put the respondent in possession of the petition schedule building under Section 11(4)(v) of the Act. Assailing the legality, correctness and propriety of the above judgment, this Revision Petition was preferred. 5. We heard the learned counsel on either side. It is not disputed that the revision petitioner took out the building on rent for the purpose of running a Clinical Laboratory of her own. Having due regard to the nature of the occupation we find that there will be definitely waste water of sizeable quantity and it must necessarily have to R. C. R. No.377 of 2005 -5- be drained out. Unless, the revision petitioner could not run a Clinical Laboratory in the petition scheduled building. Outlet for drainage water is a basic requirement for a Clinical Laboratory. The respondent denied the same. We find no good reason for not providing drainage from the wash basin. The learned counsel for respondent would suggest that the drainage water shall be collected in a bucket and thrown somewhere else. We notice that when it was put to the respondent as to whether he is agreeable for throwing that water in his open property, he replied that he is not agreeable. Such being the attitude of the respondent, we find that the respondent did not provide drainage with ulterior motives. We reject the suggestion of the learned counsel to collect waste water in bucket and to R. C. R. No.377 of 2005 -6- throw it somewhere else. It appears that the attitude of the respondent is to smoke out the revision petitioner to which process we cannot agree. In the above circumstances, we find that there is sufficient justification for the respondent in not occupying the petition schedule building as found by the Rent Controller. 6. The learned counsel for the respondent submitted that since Ext.B1 or Ext.A5 does not contain any provision for the respondent to provide for drainage of waste water, the respondent is not bound to construct or provide drainage for the outlet of the waste water. We are unable to accept the argument advanced by the learned counsel for the respondent. To a wash basin, necessarily there shall be drainage. For R. C. R. No.377 of 2005 -7- providing drainage there need not be any separate agreement. It is very curious to note that for the last fifteen years, the revision petitioner is paying rent without actually using the building. We find that there shall be a finality for the dispute and that it will be just and appropriate in the circumstance to allow the revision petitioner to do the required work for drainage of waste water at the cost of the revision petitioner. That shall be done within a period of three months and the building shall be occupied within three months from today. The learned counsel for the revision petitioner submitted that his client would not ask for reimbursement of the expenditure for doing such work for the drainage of waste water. 7. In the above circumstances, this Revision R. C. R. No.377 of 2005 -8- Petition is allowed and the judgment impugned is set aside. Order of Rent Controller is restored. 8. The revision petitioner shall have her own provision by putting drainage through the petition schedule building for the running of the waste water from the wash basin in the leasehold premises at her own cost within three months. She shall also occupy the building within that period. It is submitted by the learned counsel for the revision petitioner that the respondent has not provided electric connection. We find that as rightly contended by the learned counsel for the respondent, there is no such provision either in Ext.B1 or in Ext.A5. So the revision petitioner is at liberty to apply for electric connection and to have the same. We are sure that on application by the R. C. R. No.377 of 2005 -9- revision petitioner, Electricity Board would give connection. It is also submitted by the learned counsel for the revision petitioner that the valve of the water connection is fitted in a portion of the building in the possession of the respondent and he would close the valve to deny water connection. The learned counsel for the respondent submitted that as usual it was fitted near the water tank and the respondent has no intention to cut water supply. The submission is recorded. 9. We also notice that the present rate of rent is only Rs.175/-. Admittedly the carpet area of the petition schedule building is 110 sq. ft. We find that the agreed rate of rent is ridiculously low and provisional fixation of the fair rent would be R. C. R. No.377 of 2005 -10- just and appropriate. The learned counsel for the revision petitioner submitted that for an adjacent room with identical space, the present rate of rent is Rs.500/-. That submission is not disputed. Therefore, we find that the same amount would be just and appropriate for the petition schedule building also. Hence, we provisionally fix the fair rent of the petition schedule building at Rs.500/- payable with effect from 01/11/10. There will be no order as to costs. It is open to either party to move the Rent Controller for fixing the fair rent. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-