IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 RCRev..No. 102 of 2005() ------------------------ RCA.233/1996 of DISTRICT COURT, THALASSERY RCP.22/1995 of MUNSIFF COURT, PAYYANNUR .................... REVISION PETITIONERS/RESPONDENTS/PETITIOENRS: ----------------------------------------------------------------- 1. CHITTRE PARU, W/O.RAMUNNI, AGED 79, NO OCCUPATION, R/A. PERUMBA, VELLUR DESOM, KANNUR DISTRICT. 2. GOVINDAN CHITTRE, S/O.RAMUNNI, AGED 39, MERCHANT NAVY, R/A. DO. 3. C.JINESH ALIAS JITHESH, S/O.GOVINDAN, R/A. DO. 4. C.JIJITHA, D/O.GOVINDAN, R/A. BY ADV. SRI.CIBI THOMAS SRI.A.K.ALEX RESPONDENT(S): APPELLANT/RESPONDENT: ------------------------------------ KUNDUVALAPPIL ANANDAN, S/O.KUNHIRAMAN, AGED 59, BUSINESS, R/A. PAYYANNUR AMSOM DESOM, KANNUR DISTRICT. ADV. SRI.P.R.VENKETESH FOR R1 SRI.K.C.CHACKO SRI.A.K.HARIDAS SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.JACOB P.ALEX SRI.MANURAJ. K.J SRI.L.RAJESH NARAYAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ R.C.R.No.102 OF 2005 ------------------------ Dated this the 7th day of August, 2009 ORDER Pius C.Kuriakose, J. The landlords are in revision and they are aggrieved by the judgment of the rent control appellate authority declining eviction on the ground under Section 11 (4)(ii) (user of the building in such a manner as to reduce the value and utility materially and permanently). It has become evident in this case that the petition schedule building, in fact two rooms, were materially altered by the tenant and that too unauthorisedly without the consent of the landlords. What the tenant did was to remove the window and infact the entire front wall of the room and to substitute the same with steel rolling shutter. The rent control court, on an evaluation of the evidence, came to the conclusion that eviction ground under clause (ii) of sub Section (4) of Section 11 is made out. The appellate authority, however, would make thorough reappraisal of the evidence and conclude that evidence fell short of holding that the value and utility of the building was materially and permanently reduced. RCR.No.102/2005 2 Accordingly, the appellate authority set aside the order of the rent control court and dismissed the RCP. 2. Sri.Cibi Thomas, learned counsel for the revision petitioners has addressed us extensively on the basis of all the grounds raised. He submitted that the question whether the value and utility of the building has been reduced is to be answered from the point of view of the landlords. He read over to us the oral evidence which was given by the landlords before the court below. According to him, the above evidence should have been accepted by the appellate authority. Strong reliance was placed by him on a number of precedents in support of his arguments. Judgment of the Supreme Court in G.Reghunathan v. K.V.Varghese (AIR 2005 SC 3680), State of Haryana and others (AIR 1996 SC 2936), Vipin Kumar v. Roshan Lal & Others (1993 (3) JT 171) and the judgment of this court in Selvaraj Francis v. Returning Officer (2004 (3) KLT 889) and Michael v. Paramara Group Devaswam(2006 (1) KLT 979) were among the precedents cited before us by Sri.Cibi Thomas. 3. All the submissions of Sri.Cibi Thomas were resisted by Sri.P.C.Chacko, learned counsel for the respondent tenant. RCR.No.102/2005 3 Sri.Chacko reminded us of the contours of this court's jurisdiction under Section 20. Sri.Chacko also did not lag behind in citing the decisions. G.Reghunathan v. K.V.Varghese (2005 (7) SCC 317), Abdul Kader v. George Joseph(2009(1) KLT 205), G.Arunachalam (died) through L.R.'s and another v. Thondarperienambi and another (AIR 1992 SC 977), Viswanathan v. Porichu (1985 KLT 551), Ahammad Kanna v. Muhammed Haneef (1967 KLT 841) were among the precedents cited before us by Sri.Chacko. 4. We have considered the rival submissions addressed at the Bar. Under the statutory scheme the final authority to decide on facts is the rent control appellate authority. Having gone through the impugned judgment of the rent control appellate authority, we find that though the findings of that authority are in reversal of the findings entered by the rent control court, that authority's findings are founded on evidence including circumstantial evidence. It is true that the action of removal of the window and the wall and substitution of the same with rolling shutter was totally unauthorized action on the part of the tenant. But the question to be considered is whether the action results RCR.No.102/2005 4 in reduction in the value and utility of the building materially and permanently. The building was let out by the landlords to the tenant for a tyre resoling business. Even now i.e. even after the alteration made to the building by the tenant, the tenant is able to utilise the building for the purpose of tyre resoling works. In other words, alteast in the matter of utilising the building for doing tyre resoling work, utility has not reduced. Some of the suggestions in cross examination of the landlords and the answers given by the landlords will suggest that the building is even now capable of being used for all the purposes for which it could be used even prior to the alteration. In other words, the evidence on record is not sufficient to hold that the utility of the building has become reduced. Statutory eviction ground under Section 11 (4) (ii) is made out only if the value or utility of the building has been reduced materially and permanently. In the instant case, we are also convinced that the utility of the building has not become materially or permanently be reduced. Though the evidence of the landlords is to the effect that the value has become reduced, there is no cogent material to decide as to the extent to which the value has been reduced. Reduction RCR.No.102/2005 5 in the value has to be a permanent one. It is difficult to hold on the evidence now available on record that the value of the building has been permanently reduced on account of the action of the tenant. It may be possible to restore the building to the original condition once the rolling shutter is removed and the window as well as the wall are restored. Either way, we are not in a position to interfere with the finding of the appellate authority that the eviction granted under section 11 (4) (ii) is not made out. We cannot say that the finding of the appellate authority is illegal, irregular, improper to the extent of warranting invocation of the revisional jurisdiction under Section 20. However, we notice that the building in question is situated in a very important area of the town. The rent fixed years ago is, according to us, far below the fair rent. Having regard to the importance of the locality where the building is situated, we are of the view that if the same is let out now, it may fetch Rs.1,500/- per month. At the same time we are inclined to refix the contract rent payable by the tenant at Rs.500/- prospectively with effect from 1st September 2009. The respondent shall pay the rent at the rate of Rs.500/- per month RCR.No.102/2005 6 with effect from 2/9/2009. It is made clear that such refixation by us of the rent, is without prejudice to the right of either of the parties to move the competent court for fixation of fair rent in accordance with law. The RCR will stand dismissed subject to our refixation of the rent prospectively. PIUS C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk