Ambalakandy Kunhammad vs Veluthaparambath Alikutty

C.S.Sudha, J.

This revision under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) is against the concurrent findings of the courts below, i.e., against the judgment in R.C.A.No.173/2014 dated 30/09/2016 on the file of the Rent Control Appellate Authority (the RCAA), Vatakara, confirming the order of the Rent Control Court (the RCC), Nadapuram, in R.C.P.No.17/2011 by order dated 13/10/2014. The petitioner herein is the appellant before the appellate authority and the respondent in the R.C.P. The respondents herein are the respondents before the appellate authority and the petitioners before the RCC. The parties in this petition will be referred to as described in the R.C.P.

The petitioners/landlord moved the RCC seeking eviction under Section 11(4)(ii) of the Act. The petition schedule building, one constructed with wooden planks and a tiled roof, was let out to the respondent by the predecessor-in-interest of the petitioners. The tenanted premises is facing the road on the west. To the east of the tenanted premises, i.e., on the backside there is a vacant space. According to the petitioners, a few months before the filing of the R.C.P., the respondent without the knowledge or consent of the petitioners removed a few planks on the eastern wall of the building to create an entrance to the eastern side, where he has constructed a shed. Due to the act of removal of the wooden planks from the eastern wall, the value and utility of the building has been materially and permanently affected. Hence the R.C.P. under Section 11(4)(ii) of the Act.

The respondent/tenant denied the aforesaid allegations of the petitioners. He contended that the wooden planks on the eastern wall were removed with the permission of the predecessor-in-interest of the petitioners and hence the latter cannot question him now. The removal of the planks has in no way affected the value or utility of the building. According to him, the R.C.P. is only a ruse for eviction.

The RCC after analysing the oral and documentary evidence let-in by the petitioners, allowed the R.C.P. under Section 11(4)(ii) of the Act. In the appeal filed by the respondent/tenant, the appellate court is also seen to have gone into the matter in detail, reappraised the evidence, findings and conclusions of the RCC and concluded that the appeal is devoid of any merit and hence confirmed the order of eviction of the RCC.

Heard  Adv.R.K.Muralidharan,  the  learned  counsel  for  the revision petitioner and Adv.Meena A., the learned counsel for the respondents.

On going through the order of the RCC and the RCAA, we find that all the aspects have been considered in detail before eviction was ordered. Though the respondent/tenant contends that permission had been granted by the predecessor-in-interest of the petitioners for the removal of the wooden planks and creation of an entrance on the eastern wall of the building, no evidence whatsoever has been adduced to substantiate the said contention. The respondent has also not mounted the box to substantiate his case or discredit the case putforward by the petitioners. In the R.C.P. the ground under Section 11(4)(ii) has been specifically pleaded and one of the petitioners who was examined as PW1 in the box stands by the case set up in the petition. Nothing has been brought out to discredit his testimony. The fact that the wooden planks on the eastern wall had been removed and an entrance created towards the eastern side, is admitted by the respondent. Therefore the only question to be considered is whether the removal of the wooden planks has destroyed or reduced its value or utility materially or permanently. To prove this aspect, the petitioners rely on the testimony of PW1 and the report filed by the Advocate Commissioner, which have been properly appreciated by the courts below. Moreover, under Section 20 of the Act a re-appreciation of evidence cannot be done. This Court can interfere with the findings of the court below only if there is any illegality, irregularity or impropriety.

The learned counsel for the respondent/tenant referred to the decision in G.Reghunathan v. K.V.Varghese, (2005)7 SCC 317, to canvass the point that the act of removal of a few wooden planks would not in any way destroy or reduce the value or utility of the building materially and permanently. We do not agree to this argument because the facts in the reported decision are different from the facts in the case on hand. In Reghunathan (Supra) the landlord had not even pleaded that the alterations made by the tenant had destroyed or reduced the value or utility of the building materially and permanently. It was taking into account the said fact and also the purpose for which the building had been let out, the Apex Court held that there was no reduction or destruction in the value or utility of the building. In the case on hand, there are specific pleadings to attract the ingredients under Section 11(4)(ii) of the Act. To establish the same PW1 has also been examined, whose evidence has not been discredited in any way. Therefore, we do not find any illegality, irregularity or impropriety warranting an interference by this Court into the findings in the impugned judgment.

Taking into account the fact that the respondent is conducting a business in the tenanted premises, we deem it appropriate and reasonable to grant him six months' time to vacate the building.

In the result, the rent control revision is dismissed. Six months' time is granted to the revision petitioner/tenant to vacate the petition schedule building on condition that he shall file an undertaking before the RCC on or before 13/12/2022 undertaking to vacate the tenanted premises within a period of six months from today and also on condition that the tenant shall pay the arrears of rent if any, on or before 13/12/2022 and also continue to pay the monthly rent on or before the 10th day of every succeeding month till he vacates the building.

Interlocutory applications, if any pending, shall stand closed.