Kerala High Court

Sumayya vs Girijakumary @ Girijadevi on 31 May, 2022

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                               &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                   R.C.REV.NO.158 OF 2021
AGAINST THE ORDER DATED 22.03.2021 IN R.C.A.NO.10 of 2016 OF
  THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
                       JUDGE-V), KOLLAM
  ORDER DATED 15.10.2015 IN R.C.(OP) NO.14 OF 2013     OF THE
  PRINCIPAL RENT CONTROL COURT (PRINCIPAL MUNSIFF), KOLLAM


REVISION PETITIONER:

          SUMAYYA
          AGED 32 YEARS
          W/O.SUBAIR AHAMED, THOPPIL VEEDU,
          KAYYALACKAL CHERRY, ERAVIPURAM VILLAGE,
          VADAKKEVILA, KOLLAM - 691 010.
          BY ADVS.
          G.P.SHINOD
          GOVIND PADMANAABHAN
          AJIT G ANJARLEKAR
          ATUL MATHEWS


RESPONDENTS:

          GIRIJAKUMARY @ GIRIJADEVI
          AGED 52 YEARS
          D/O.SUBBAMMAL, MAYOOKHAM, TC 5/2278(4),
          KADAPPATHALA NAGAR, KOWDIAR POST,
          THIRUVANANTHAPURAM - 695 004.
          BY ADVS.
          V.PREMCHAND
          SURYA MOHAN P.

     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 19.05.2022, THE COURT ON 31.05.2022 DELIVERED THE
FOLLOWING:
                                   2

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                                ORDER

Ajithkumar, J

The tenant is the revision petitioner. Respondent-landlord

filed R.C.(OP) No.14 of 2013 before the Rent Control Court

(Principal Munsiff), Kollam seeking eviction under Section 11(2)(b)

and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act,

1965. The petition was allowed. The petitioner preferred an appeal

under Section 18(1)(b) of the Act before the Rent Control

Appellate Authority (Additional District Judge-V), Kollam. The

appeal was dismissed. Thereupon the petitioner filed this Revision

under section 20 of the Act.

2. On 16.11.2021, when this matter came up for

admission, urgent notice was ordered to the respondent. Interim

order of stay not to proceed with the eviction proceedings was

granted for a period of one month. The order was extended from

time to time and is in force.

3. Heard the learned counsel appearing for the petitioner

and also the learned counsel appearing for the respondent.

4. The petition schedule building was let out to the

petitioner by the respondent on 19.07.2012 at a monthly rent of

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Rs.13,000/-. The petitioner started a footwear and bags shop

there. The respondent filed R.C.(OP) No.14 of 2013 alleging that

the petitioner defaulted payment of rent and also that during the

1st week of January 2013, the petitioner had altered the roof,

demolished its southern wall, and put up an opening in that wall

with a view to gain entry and possession of the southern room

unlawfully. By doing such alterations and a few other

modifications, the value and utility of the petition schedule room

have been reduced materially and permanently.

5. The eviction sought by the respondent on such grounds

was resisted by the petitioner contending that there has not been

any arrears of rent and that the allegation of carrying out the

material alteration was raised without any basis. Monthly rent for

the petition schedule premises was being paid regularly. What the

petitioner did was only some decorative works in the shop room.

Other than that, no alteration to the building whatsoever has been

done by her. It is incorrect that the southern room was illegally

trespassed upon. The said room and the open area behind are also

part of the demised premises. The rent in the area is getting

escalated. With the object of garnering a huge amount of deposit

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from someone else, the respondent filed the R.C(OP).

6. The Rent Control Court recorded evidence of PWs 1 to

3 and RWs 1 to 3. Exts.A1 to A10, B1, X1 and X2 were received in

evidence. Rent Control court after considering the said evidence,

came to the conclusion that there was arrears of rent and the

alteration carried out by the petitioner to the petition schedule

room was material and were of such a nature that its value and

utility have been reduced materially and permanently. Accordingly,

eviction of the petitioner was ordered. Although the petitioner

challenged the said findings by filing R.C.A No.10 of 2016, the

Appellate Authority did not appreciate the contentions of the

petitioner. Eviction ordered by the Rent Control Court under

Section 11(2)(b) and 11(4)(ii) was confirmed. The Appellate

Authority however observed that during the pendency of the

proceedings, Rs.3,12,000/- was paid to the respondents towards

arrears of rent.

7. The learned counsel appearing for the respondent

conceded that the said amount would cover the rent during the

period prior to the quit notice and therefore there is no reason to

sustain the order of eviction under Section 11(2)(b) of the Act.

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Hence the order of eviction under Section 11(2)(b) of the Act is

vacated.

8. The alterations alleged to have been carried out to the

tenanted premises are that the roof of the building was raised, a

door was newly installed after demolishing a portion of the

southern wall of the tenanted premises, and a door on the

southern side of that room was removed. By installing such a

door, the room on the southern side was accessed. The definite

case of the respondent is that one room with door No.XVII/1122

alone was let out to the petitioner. The room on the southern side

bears door No.XVII/1119. That room has not been part of the

demised premises and there was a wall to separate these two

rooms. The southern room was in absolute possession of the

respondent. But by installing a door in the said separating wall,

the petitioner gained access to the southern room and reduced the

same to her possession. A few other modifications were also

effected to the tenanted premises namely, a glass wall erected in

aluminum frames with a glass door on the northern side beneath

the rolling shutter. Some modifications which are in the nature of

beautifying the facade and laying of tiles were also said to have

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been carried out.

9. While the respondent contended that the aforesaid

alterations resulted in material alterations to the building affecting

its value and utility permanently, the contention of the petitioner is

that she carried out some beautification works of the building

alone. It is her contention that by providing a glass partition and a

door in front, the value and utility of the building was enhanced

only. The allegation that a door was newly installed in the southern

wall of room No.1122 and removal of the door from the southern

wall of room no.1119 is totally denied. Learned counsel appearing

for the petitioner would submit that very description of the

tenanted premised in Ext.A1 rent deed evinces that not only room

No.1122, but also the structures behind were also the subject

matter of the tenancy. The stand of the learned counsel is that the

premises was availed on rent to accommodate a business in ladies'

footwear and bags, and without the facilities for storage, no

reasonably prudent person would get the building on rent.

Description in the schedule to Ext.A1 takes in the landed property,

electric fittings, etc and that would reveal that the whole structure

obtained by the respondent as per the partition deed were let out

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to the petitioner.

10. The learned counsel appearing for the petitioner placing

reliance in Shanmugam v. Rao Saheb [1988 (1) KLT 86]

submitted that if at all, it is taken as true that a door was provided

in the separating wall, it does not have the effect of impairing the

value or utility of the building creating a cause of action for

eviction.

11. PW1, the landlady deposed in court that the door in the

southern wall of room No.1122 was installed anew by the

petitioner. It is her definite version that the said room alone was

let out and the remaining area of the structure and the vacant land

were retained by her. The respondent relies on, besides her own

oral testimony, the oral evidence of PW3 and Ext.A9 to

substantiate her contention that the door was newly installed. In

Ext.A1, the tenanted premises was described as a shop room. In

the schedule, what is included is room No.XVII/1122 alone. The

partition deed, as per which the respondent obtained the said

property, was received in evidence by the Appellate Authority. In

Ext.A10 the description of item No.3 in Ext.A10, which was the

property allotted to the respondent, not only the shop room but

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also a portion of the building, a veranda and a toilet were

included. When the shop room alone is included in Ext.A1, it

cannot be assumed that the entire structure obtained by the

respondent as per Ext.A10 was demised as per Ext.A1. The oral

testimony of PW1 has to be understood in the light of the said

documentary evidence. Therefore the case of the respondent that

room No.1122 alone was let out to the petitioner stands proved.

12. While PW1 stated that the alterations and modifications

as above were carried out by the petitioner after the

commencement of the tenancy, RW1 denied the installation of a

door in the southern wall of room No.1122 and also removal of the

door on the southern wall of room No.1119. Erection of the glass

door and wall is not disputed. RW1, the petitioner would assert

that it was only a beautification. It is seen from the report of the

Commissioner, Ext.A9 that some modifications by installing the

glass door, paving vitrified tiles, etc were done. Those were only

some acts of face lifting, attributing a modern look to the shop

room. That cannot be said to be any material alteration to the

building.

13. The evidence of the Commissioner, PW3 and Ext.A9

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were attacked by the petitioner saying that the report was

obtained ex parte in a different proceeding. This report was

obtained in O.S.No.81 of 2013 filed by the respondent before the

Munsiff Court, Kollam. The Commissioner is PW3. When the

Commissioner is examined in Court and she deposed the facts

which were seen by her at the time of inspection, the same

amounts to primary evidence. Contents of Ext.A9, which is a

report prepared by her contemporaneous to her inspection, can

certainly be used to corroborate her oral testimony in court. In

such circumstances, the defect of having obtained the report ex

parte does not have any relevance. PW3 deposed substantiating

the contents in Ext.A9 from which it is seen that the door at the

southern wall of room No.1122 is newly installed.

14. There is no reason to disbelieve the said version.

Therefore the evidence brought in through PWs 1 and 3 and

Exts.A9 certainly proves that the door in the southern wall of the

tenanted premises, room No.1122 was installed by the petitioner

by removing a part of the wall, after the commencement of the

tenancy.

15. It is shown that room No.1122 alone was let out to the

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petitioner. Therefore the modification or destruction of any other

structure cannot be a reason for eviction under Section 11(4)(ii) of

the Act. As pointed out by the learned Counsel for the petitioner,

those matters cannot be the subject matter of this proceedings

and the remedy of the respondent in that is elsewhere.

16. In Shanmukha (supra) the alleged alterations were

putting up a door after removing a portion of the boundary wall

and construction of a common veranda. The said changes were

found not to be an alteration affecting the value or utility of the

building. The court however observed that the removal of a wall

separating two rooms may or may not result in impairment of

utility or value, depending on the facts of each case.

17. In Mohammed Hajee P.V. v. Mundoli Muhammed

Hajee [2011 (1) KHC 562] this Court held that "the demolition

of the wall separating the two rooms would reduce the value and

utility of the petition schedule building. Probably, making two

rooms into one may increase the utility of the tenant. But the

utility of the landlord cannot be ignored. The landlord had

designed and built the rooms by spending money and materials to

suit his needs and utility. Tenant has no right to demolish the wall

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in between the rooms and to say that thereby the value and utility

are increased."

18. In Mohanan v. Muhiyudheen [2010 (1) KLT 512],

the question was whether the demolition of a compound wall

would amount to a material alteration affecting the value and

utility of the building. This court held that as far as immovable

properties are concerned, a compound wall demarcating its

boundary as well as a gate put on for access to that land from the

public road are material structures, destruction of which will

definitely affect the value and utility of the land. In Sajith Bhaliga

v. Paul [2013 (2) KLT 287], the alteration brought about was

that the facade of the building was changed and for giving a

modern look to the structure rolling shelters were installed. This

court held that by such construction, the ancient antique beauty of

the building was taken away and therefore, the same has resulted

in losing its heritage value thereby reducing its value and utility

materially and permanently.

19. In the light of the principles of law discussed above, the

case of the respondent that by installing a door after removing a

portion of the southern wall of the petition schedule shop room the

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petitioner caused to lose its value and utility materially and

permanently can only be accepted. Hence the concurrent findings

entered into by the courts below in this regard are not liable to be

interfered with by this court invoking its powers under Section 20

of the Act. The said findings cannot be said to be illegal, irregular

or improper. Therefore we are of the view that the challenge of the

petitioner to the judgment dated 22.03.2021 in R.C.A No.10 of

2016 and the order dated 15.10.2015 in R.C.(OP) No.14 of 2013

can only fail.

20. The learned counsel appearing for the petitioner would

submit that an amount of Rs.12 lakhs was paid as deposit at the

time of availing the petition schedule shop room on rent and it is

only just and equitable to direct the respondent landlord to direct

repayment of the same in the event of ordering eviction. The

learned counsel invited our attention to Rule 11(8) of the Kerala

Buildings(Lease and Rent Control) Rules, 1979, which says that

every order passed by an Accommodation Controller, Rent Control

Court or the Appellate Authority shall be in accordance with

justice, equity and good conscience. It is urged that when the

evidence on record reveals that Rs.12 lakhs was paid by the

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petitioner as deposit, it is only just and equitable to order return of

it. Of course, if, as a matter of fact, the respondent-landlord

received such an amount, it is her obligation to return at the time

of surrendering vacant possession of the tenanted premises. But

this Court, while exercising jurisdiction under Section 20 of the Act

cannot go beyond what has been envisaged as per the provisions

of the Act. There is no recital in Ext.A1 as to any such deposit. In

the said circumstances, we are unable to accede to the said

contention of the learned counsel for the petitioner.

21. In view of what is stated above, this revision fails. We,

therefore, dismiss it.

22. At the time of pronouncement of the order, the learned

counsel for the petitioner has made a request to afford six months'

time for vacating the premises. The learned counsel for the

respondent is agreeable to grant three months' time.

23. Having considered all the aspects, we deem it

appropriate to grant five months' time to surrender vacant

possession of the petition schedule building, subject to the

following conditions:

(i) The respondent-tenant in the Rent Control Petition

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shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioner-landlord within five months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;

(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default;

(iii) Needless to say, in the event of the respondent-

tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled

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automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.