IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 RCRev..No. 286 of 2008() -------------------------------------- RCA.22/2001 of ADDL. DISTRICT COURT (ADHOC-II)KASARAGODE RCP.50/1998 of MUNSIFF COURT, HOSDRUG (RENT CONTROL COURT) .................... REVISION PETITIONER /APPELLANT/RESPONDENT:- -------------------------------------- PARIYATH SURESH CHANDRAN, AGED 39 YEARS, S/O.KOLIYADAN KUNHIKRISHNAN NAIR, HINDU, BUSINESS, R/AT KUTTAMATH, CHERUVATHUR VILLAGE, HOSDURT TALUK, KASARGOD DISTRICT. BY ADV. MR.KODOTH SREEDHARAN RESPONDENT(S): RESPONDENT/ PETITIONER -------------------------- PADINHARE VEETTIL KUNHAMBU, S/O. CHERIYAMMA, HINDU LIC AGENT, R/AT KUTTAMATH, CHERUVATHUR VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. R1 BY ADV. MR.M.SASINDRAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NO: 286 OF 2008-E ----------------------------------------------------------------------------------- Dated this the 20th November, 2009. O R D E R PIUS C.KURIAKOSE, J. The tenant who was ordered to be evicted concurrently by the Rent Control Court and the appellate authority on the grounds of arrears of rent and the ground under Clause (ii) of Sub Section (4) of Section 11 is the revision petitioner. 2. As for the order of eviction passed on the ground of arrears of rent, it is well known that such eviction orders are provisional orders always liable to be vacated by the Rent Control Court on the basis of deposits made by the tenant. We do not find any illegality, irregularity or impropriety in the order of eviction passed under Section 11(2)(b) and hence confirm that order of eviction. However, we grant the revision petitioner one month's time from today to move the Rent Control Court for getting that order vacated under Clause (c) of Section 11(2). 3. The substantive ground on which order of eviction is passed against the revision petitioner is the ground under Clause (ii) of Sub Section 4 of Section 11. Eviction ground under Section 11 RCR 286/2008 2 (4)(ii) is made out if the tenant has used the building in such a manner as to destroy or reduce its value or utility materially and permanently. In the instant case the allegation of the landlord was that the tenant has closed for himself the common verandah lying immediately in front of the petition schedule rooms by partitioning the same using glass and cement sheets and by fixing a wooden door for facilitating entry into the above portion. According to the landlord the petition schedule rooms which are the two rooms on the southern end of the upstair portion of the double storied building belonging to him were let out to the revision petitioner for the purpose of conducting a photo studio. On the terms of the lease deed Ext.A1, the tenant is not entitled to carry on any business other than photo studio business and is bound to keep the front verandah as a common verandah for all the rooms in the first floor of the double storied building. According to the landlord alterations like partitioning the verandah and by paving ceramic tiles inside the rooms and also on the floor of the verandah lying immediately in front of the rooms was all done by the tenant in connection with the business of photostat copies which the tenant wanted to do unauthorisedly i.e in violation of the terms of lease. 4. An Advocate Commissioner was deputed by the Court for a RCR 286/2008 3 local inspection and he filed his first report dated 6.3.2000 for conducting inspection with notice to both sides. Subsequently, on the basis of an application filed by the landlord the Court deputed the very same Commissioner to conduct a further inspection which was conducted and accordingly further report dated 2.1.2001 was also submitted by the Commissioner. Along with the further report, the Commissioner submitted an eye sketch of the petition schedule buildings as well as the entire double storied building. The evidence at trial by the Rent Control Court consisted apart from the Commissioner's two reports Exts.C1, C2 and the eye sketch Ext.C3 of Exts.A1 to A7(a), Exts.B1 to B4, Exts.X1 to X3 and the oral testimonies of P.Ws 1 & 2 and R.W.1. On evaluating the evidence the Rent Control Court would enter a finding that on account of the unauthorised acts of the tenant-revision petitioner the value and utility of the building has become reduced materially and permanently from the point of view of the landlord. The Appellate Authority considered the appeal preferred by the revision petitioner and concluded that it may not be possible to say that the value of the building has become permanently reduced. It was found that the utility of the building that is the verandah portion has been permanently reduced. Accordingly the Appellate Authority RCR 286/2008 4 confirmed the order of eviction passed by the Rent Control Court under Section 11(4) (ii). 5. In this appeal various grounds have been raised by the revision petitioner assailing the judgment of the Appellate Authority. Shri. Kodoth Sreedharan, learned counsel for the revision petitioner addressed us on all those grounds. Mr. Sreedharan would cite various decisions before this Court including the judgment of the Supreme Court in Reghunathan v. Varghese {2005(4) KLT 147 (SC)}. According to Mr. Sreedharan, even the Appellate Authority has found that on account of what was done by the revision petitioner on the petition schedule building and the common verandah in front, the value of the building has not become reduced and much less permanently. As for the utility the learned counsel submitted that using the building for a purpose other than the purpose for which the building is let out will not amount to a ground for eviction under the Rent Control Act. 6. According to Mr. Sreedharan, in the instant case the question which arises is whether the commonness of the verandah has been lost on account of any act of the revision petitioner- tenant. Drawing our attention to oral evidence adduced by the parties Mr. Sreedharan submitted that it is admitted by P.W.1 RCR 286/2008 5 himself that the occupants of the rooms on the northern side will still be able to make use of the verandah, portion of the building lying to the immediate front of the petition schedule rooms has not been enclosed. The Commissioner during both the visits did not notice any door. 7. All the submissions of Mr. Sreedharan were resisted by Mr. K.T.Paulose. According to him there is no infirmity about the findings of the Rent Control Appellate Authority which, under the statutory scheme is the final Court on facts so as to warrant invocation of the revisional jurisdiction under Section 20. 8. We have anxiously considered the rival submissions addressed at the Bar. It is sufficient for establishing ground under Section 11(4)(ii) that due to the user of the building in any particular fashion by the tenant either the value or the utility of the building is reduced materially and permanently. It is not necessary that both value and utility both should be reduced or destroyed materially and permanently. It is trite by decisions such as one in Gurumoorthy Gopalakrishnan v. Lakshmi Bai {2005(1) KLT 256} and Michael v. Paramara Group Devaswom {2006(1) KLT 979} that reduction of value or utility need not be in respect of the very building which is covered by the lease. The same can also be in RCR 286/2008 6 respect of the grounds or areas which are appurtenant to the building let out. As for the instant case, the verandah lying to the immediate front of the petition schedule rooms is also covered by the lease in as much as the revision petitioner-tenant is also given the right to make use of the verandah along with the occupants of the other rooms in the first floor. Both the reports submitted by the Advocate Commissioner will clearly show that the revision petitioner separated the verandah portion lying immediately to the petition schedule rooms from the portion of the verandah lying in front using glass and cement sheets and by fixing a wooden frame. The evidence will further show that there was an endeavour to install a door so that portion of the verandah lying to the petition schedule rooms can be exclusively used as if it were a separate room for revision petitioner. Of course the Commissioner was unable to notice the existence of a door. We will, therefore, assume that the revision petitioner did not install any door and thereby blocked or prevent the access of the occupants of the rooms situated on the northern side of the petition schedule rooms into the verandah portion lying in front of the petition schedule rooms. But then, on the terms of the lease and going by the evidence adduced by both sides, the verandah is common to all the rooms in RCR 286/2008 7 the first floor of the double storied building. According to us, on account of the installation of the partition and commonness and openness of the verandah have been taken away. The utility of the verandah is to be appreciated from the point of view of the landlord. As far as the landlord is concerned, had it not been for the partition errected by the revision petitioner as noticed in Exts.C1 and C2 reports, it would have been possible for the landlord and other tenants to make use of the entire length and width of the common verandah lying in front of all the rooms in the first floor. Thus, we are in agreement with the learned Appellate Authority that the utility of the verandah portion lying in front of the petition schedule room have been permanently reduced due to what was done by the revision petitioner. Under the statutory scheme the Appellate Authority is the final Court on facts. This Court is not expected ordinarily to substitute our conclusions of fact by re-appraising the evidence. In the instant case what we notice is that the finding of the Appellate Authority that the utility of the verandah portion has been permanently reduced is a finding entered on the basis of the evidence adduced by the parties including Exts.C1, C2 and C3 and the oral evidence. In fact going by the tenor of the questions asked to P.W.1 in the cross RCR 286/2008 8 examination it is seen that the suggestion was that the tenants in occupation of the northern rooms do not have to come over to that portion of the verandah lying in front of the petition schedule rooms. As already indicated the consideration is whether utility of the original verandah as a common open verandah has been reduced. On that consideration the finding of the Appellate Authority, in our opinion cannot be said to be illegal, irregular or improper. The revision has therefore to fail. However, considering the circumstances that the Rent Control proceedings were initiated within a few months after the commencement of the lease, we are inclined to grant time to the revision petitioner to surrender the premises till 31.3.2010 subject to conditions. The result therefore is as follows: 9. RCR is dismissed. No costs. The Execution Court is directed not to order and effect delivery of the petition schedule building till 31.3.2010 subject to the following conditions:- The revision petitioner shall file an affidavit to the Execution Court undertaking to surrender peaceful possession of the respondent to the landlord on or before 31.3.2010 and undertaking to discharge arrears of rent, if any, within one month and to pay damages for use and occupation at the current rate till such time as RCR 286/2008 9 granted. It is made clear that the revision petitioner will get benefit of time permitted by this Court only if an affidavit is filed on time. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: