IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 RCRev..No. 314 of 2010 --------------------------- RCA.90/2007 of 1ST ADDL. RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.85/2006 of ADDL.M.C.-I,KOZHIKODE. .................... PETITIONER/APPELLANT/RESPONDENT NO.1 IN RCP: ---------------------------------------------------------- MALAYI KUMUDAM, AGED ABOUT 62 YEARS, D/O.KARUKAYIL APPUTTI, W/O.UNNIKUTTY, RESIDING VENGERI AMSOM AND DESOM, P.O.KOZHIKODE TALUK. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENT(S):/RESPONDENTS/PETITIONERS AND RESPONDENTS 2 & 3 IN RCP -------------------------------------------------------------------------------------- 1. M.V.VENUGOPAL, AGED 56 YEARS, S/O.VASUDEVAN, RESIDING AT MADHUVALTH, KACHERI AMSOM & DESOM, KOZHIKODE TALUK. 2. M.V.PRAKASH, AGED 54 YEARS, S/O.VASUDEVAN, RESIDING AT MADHUVALTH, KACHERI AMSOM & DESOM, KOZHIKODE TALUK. 3. M.V.DEVAPRASAD, AGED 52 YEARS, S/O.VASUDEVAN, RESIDING AT MADHUVALTH, KACHERI AMSOM & DESOM, KOZHIKODE TALUK. 4. SARALA, D/O.KARUKAYIL APPUTTY, AGED 49 YEARS, C/O.ARCHANA TEXTILES, PONNANI, MALAPPURAM DISTRICT. RCR.314/10 -2- 5. SUMITRA, D/O.KARUKAYIL APPUTTY, AGED 54 YEARS, KUTTATH HOUSE, EDAPPAL, MALAPPURAM DISTRICT. ADV. SRI.K.LAKSHMINARAYANAN FOR R1-3 SMT.SATHYA SHREEPRIYA FOR R1-3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.314 of 2010 ------------------------------------------------ Dated this the 21st day of December, 2010 ORDER Pius C. Kuriakose, J Under challenge in this revision filed under Section 20 by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court under Section 11(4)(ii). The landlords had invoked the ground of arrears of rent also and the statutory authorities have concurrently ordered eviction under that ground. But it is conceded by both sides that the tenant can be allowed to get the order of eviction passed under Section 11(2)(b) vacated by invoking Section 11(2)(c) before the Rent Control Court. We, therefore, are concerned in this revision only with the order of eviction passed under Section 11(4)(ii). R. C. R. No.314 of 2010 -2- 2. The building in question is a shed which was let out to the revision petitioner for conduct of business of kerosene. The building is situated in a fairly extensive plot belonging to the landlords. The allegations of the landlords in the context of the ground under Section 11(4)(ii) inter alia was that on account of the negligent manner in which the petition schedule shed was used by the tenant and also on account of unauthorised constructions put up by the tenant, the value and utility of the building has become reduced materially and permanently and hence, the tenant is liable for an order of eviction under Section 11(4)(ii). The tenant would stoutly deny the allegations. In the enquiry conducted by the Rent Control Court, apart from the oral evidence adduced by the parties, reliance was mostly placed on Exts.A2 and A2(a) which were respectively a Commissioner's Report and sketch submitted by the Commissioner in O.S.375/03, a suit filed by the landlords R. C. R. No.314 of 2010 -3- against the tenant. Reliance was also placed on Exts.A3 and A4, the decree and judgment respectively in the above suit which we are informed has attained finality at the hands of this Court in Second Appeal. On appreciating the evidence, the Rent Control Court came to the conclusion that the tenant had put up additional constructions including erection of pillars adjacent to the petition schedule shed. It was also concluded that a gate installed on the compound wall of the plot had been replaced and the passage had been widened. According to the Rent Control Court, it had become evident that eviction ground under Section 11(4)(ii) stood established. The learned Appellate Authority also considering the appeal preferred by the tenant would practically concur with all the conclusions of the Rent Control Court and confirm the order of eviction. 3. In this Revision under Section 20 various grounds have been raised by the tenant assailing the judgment of R. C. R. No.314 of 2010 -4- the Appellate Authority. 4. Sri.M.P.M.Aslam, the learned counsel for the revision petitioner would address us on the basis of all those grounds. He would draw our attention to the pleadings raised by the parties and to the salient items of evidence relied on by the statutory authorities. He referred to Exts.A2 and A2(a) as well as Exts.A3 and A4 in particular. He submitted that Exts.A2 and A2(a) not having been proved in accordance with law were rightly not relied on by the statutory authorities. According to him, the reliance placed on Exts.A3 and A4 by the statutory authorities was not justified. Any court can rely on judgments of other courts only in terms of and to the extent allowed by the provisions of Indian Evidence Act. Exts.A3 and A4 are not relevant items of evidence in that way, according to Sri.Aslam. At any rate, the learned counsel submitted that the evidence available in the case will fall short of holding that the value R. C. R. No.314 of 2010 -5- and utility of the petition schedule building which is only the shed referred to as the 'B' schedule property in the suit has been reduced materially and permanently. Sri.Aslam would give thrust to the word “permanently” and submit that the very fact that the Civil Court has passed a decree of mandatory injunction commanding restoration of the 'B' schedule shed (the petition schedule building) to its original condition will show that it is capable of being repaired and restored to its original condition. 5. The submissions of Sri.Aslam were forcefully resisted by Sri.K.Lakshminarayanan, the learned counsel for the respondents. He would submit that the demolition of the compound wall and removal of the gate are actions resulting in reducing the value and utility of the building materially and permanently. When it was pointed out to him that the compound wall is for the plot and not for the shed, he submitted that the plot being ground immediately R. C. R. No.314 of 2010 -6- appurtenant to the building is to be construed as part of the building. According to him, there is evidence, at any rate, to show that additional construction was put up by the tenant adjacent to and attached to 'B' schedule building. The landlords wanted the petition schedule building to remain in the condition in which the same was entrusted to the tenant. The tenant has without authorisation from the landlords added constructions on to the shed and this has resulted in reduction of value and utility of the shed materially and permanently from the landlords' point of view. The issue is to be seen through the perception of the landlords and not of the tenant. 6. Sri.Lakshminarayanan supplied us with a copy of Exts.A2 and A2(a) and as requested by him, we have gone through the same. 7. Having considered the rival submissions addressed at the Bar and having adverted to the pleadings and R. C. R. No.314 of 2010 -7- materials to which our attention was drawn by the counsel on either sides, we feel that the matter requires re- consideration at the hands of the Rent Control Court itself. It is true that Exts.A3 and A4 decree and judgment have become final at the hands of this Court in Second Appeal. It is also true that Exts.A3 and A4 will show that without authorisation from the landlords, the tenant has put up additional constructions not palatable to the landlords on the property belonging to the landlords. But then the landlords' own case in the suit was that these additional constructions were put up not inside the shed in question but on the plot which is described as 'A' schedule property in the suit. In other words, landlords' own case in the civil proceedings was that unauthorised additional constructions have been put up on land adjacent to the petition schedule building. Though building has been defined statutorily to include grounds immediately appurtenant to the building and let out R. C. R. No.314 of 2010 -8- along with the building necessary for the convenient use and enjoyment of the building, in the present case the landlord will have some difficulty in banking on the statutory definition as their definite plea in the suit was that what has been let out is only 'B' schedule shed. Sri.Lakshminarayanan had an argument that by putting up constructions on to the petition schedule shed and adjacent to the same, the value and utility of the shed has become reduced from the landlords' point of view. The above argument is certainly attractive but we do not find any convincing evidence on the basis of which the argument can be accepted. Position could have been different if Exts.A2 and A2(a) Commission Report and sketches were properly brought out in evidence by the landlords. That was not done. Sri.Lakshminarayanan submitted that if an opportunity is given it may be possible for the landlords to examine the Commissioner and prove Exts.A2 and A2(a). We, therefore, feel that the issue can be R. C. R. No.314 of 2010 -9- relegated once again to the Rent Control Court so that a fresh decision can be taken after giving opportunity for adduction of evidence to both sides. 8. We notice another aspect of the matter. The petition schedule building having roughly an extent of 700 sq. ft. and situated in an important area of Calicut city Corporation is fetching to the landlords only Rs.120/- per mensem. We are sure that if the building is let out today, the same will fetch several times of the above rent. We, therefore, are inclined to refix the rent payable by the revision petitioner prospectively subject to right of both sides to approach the Rent Control Court for fixation of fair rent. 9. The result of the above discussions, therefore, is as follows:- The judgment of the Rent Control Appellate Authority and the order of the Rent Control Court are set aside to the extent the same pertains to the ground under Section 11(4) R. C. R. No.314 of 2010 -10- (ii). Order of eviction passed under Section 11(2)(b) is confirmed subject to Section 11(2)(c). RCP is remanded back to the Rent Control Court. That court is directed to take a fresh decision as to whether eviction ground under Section 11(4)(ii) is established. Both sides should be allowed to adduce further evidence if they are so desirous. The learned Rent Control Court will re-appraise the evidence already on record and further evidence which comes to be on record and will pass revised orders appreciating the arguments to be addressed by both sides including the arguments regarding the relevancy and probative value of the documents relied on. 10. The rent payable by the revision petitioner for the building in question is re-fixed with effect from 01/01/11 at Rs.1,500/- per mensem. We make it clear that this re- fixation is tentative and if either party is aggrieved, it is open to them to approach the Rent Control Court under R. C. R. No.314 of 2010 -11- Section 5 for regular fixation of fair rent. Till such time fair rent is fixed under Section 5, the revision petitioner shall pay rent at the rate of Rs.1,500/- per mensem. Parties will enter appearance before the Rent Control Court on 06/01/11. The Rent Control Court shall try the RCP as expeditiously as possible and shall make every endeavour to pass fresh orders in the RCP at least within the statutory time limit of four months of parties entering appearance. It is needless to mention that this order will not stand in the way of the respondents/landlords executing the decree of injunction which has now attained finality at the hands of this Court. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.314 of 2010 -12-