High Court dismissed revision against Appellate Authority order upholding eviction for user of building under Section 11(4)(ii). Court held works done outside leased premises did not affect building value. Rent fixed at Rs.1000.
Revision dismissed; monthly rent fixed at Rs.1000 from 1.3.2011.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932
RCRev..No. 392 of 2004()
-----------------------------------RCA.NO. 134/2002 of ADDITIONAL DISTRICT COURT, KOZHIKODE RCP.NO. 2/1999 of ADDITIONAL MUNSIFF COURT ,KOZHIKODE-II
REVISION PETITIONER/APPELLANT/LANDLADY
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1. CHINNAPPA KADEEJABI,
*** PETITIONERS 2 TO 8 IMPLEADED**
*ADDL.P3: C.JAMEELA, D/O. KADEEJABI, AGED 58, VASMAH, PULIKKALKADAVU ROAD, POST. PADOOR, MULLASSERY VIA, TRICHUR DISTRICT.
*** ADDL.P5: C.SUBAIR, S/O. KADEEJABI, AGED 50 YEARS, KHADEEJA MANZIL, THIRUVANNUR ROAD, P.O.KALLAI, PANNIYANKARA, CALICUT-673 003.**
*ADDL.P6: C.NADEER, S/O. KADEEJABI, SOMALAYAM, O.K.ROAD, P.O. THIRUVANNUR, CALICUT- 673 029.
*** ADDL.P7: C.ABDUL NASAR, S/O. KADEEJABI, AGED 45 YEARS, THIRUVANNUR ROAD, P.O.KALLAI, PANNIYANKARA, CALICUT-673 003.**
*ADDL.P8: C.SAHEED, S/O. KADEEJABI, AGED 42 YEARS, KHADEEJA MANZIL, 3/718, PARAKKAL, PARIYARAM ROAD, P.O. PARIYARAM, WYNAD DISTRICT.
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R.C.R.NO.392/2004
BY ADV. SRI.A.V.M.SALAHUDDEEN
RESPONDENT(S): RESPONDENTS/TENANTS
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1. MARIYAMBI D/O. THARAMMAL ABDULLAKUTTY, AGED 51 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE.
2. JAMEELA D/O. THARAMMAL ABDULLAKUTTY, AGED 47 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE.
3. HAJJIBI D/O. THARAMMAL ABDULLAKUTTY, AGED 43 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE
4. AMINABI D/O. THARAMMAL ABDULLAKUTTY, AGED 41 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE.
5. MOIDEEN KOYA S/O. THARAMMAL ABDULLAKUTTY AGED 40 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANNIYANKARA AMSOM, KOZHIKODE.
6. ABDU S/O. THARAMMAL ABDULLAKUTTY, AGED 38 YEARS, 2/3193, ATTAKOORUNILAM, PARAMBA, PAYYANAKKAL KALLAYI, PANIYANKARA AMSOM, KOZHIKODE.
7. BAVA, AGED 58 YEARS, 7/412, KALLUVETTUKUZHI, HEMAN BAZAR, KOLATHARA, CHERUVANNUR, NALLALAM PANCHAYAT.
8. RASIYABI, AGED 33 YEARS, D/O. BAVA, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK.
9. LAILA, AGED 31 YEARS, D/O.BAVA, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK.
10. BEERAN KOYA, AGED 29 YEARS, S/O. BAVA, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK.
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R.C.R.NO.392/2004
11. SHEREENA MOIDU, AGED 27 YEARS, D/O. BAVA, 4/834, BEHIND M.S.AUDIO AND VIDEO VELLAYIL, KACHERI AMSOM, DESOM, KOZHIKODE TALUK.
*** RESPONDENTS 12 & 13 IMPLEADED**
*ADDL.R12: C.SULAIKHA, D/O. KADEEJABI, AGED 65 YEARS, 2/817, SULAIKHA MANZIL, KANAL ROAD, (PO) ERANHIPALAM, CALICUT-673 006.
*ADDL.R13: C.BASHEER, S/O. KADEEJABI, AGED 54 YEARS, MEHRINA, KAYATH ROAD, TELLICHERRY.
*** ADDL. RESPONDENTS 12 & 13 ARE IMPLEADED AS PER ORDER DATED 16/8/10 IN I.A.NO.2031/10 IN RCR 392 /04.**
R1 TO R6, R8 TO R11 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R2 TO R6, R8 TO R11 BY SRI.K.JAYAKUMAR, SENIOR ADVOCATE BY ADV. SRI.P.B.KRISHNAN FOR SRI.HARISH R. MENON
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ.
R.C.R. No. 392 of 2004
Dated this the 11th day of February, 2011
Order
N.K.Balakrishnan, J.
The short point that arises for consideration in this revision filed by the landlady is whether the construction or doing of any act in the land adjacent to the “building” but which does not form part of the “building” let out to the tenant would entitle the landlady to get an order of eviction under Section 11(4)(ii) of Act 2 of 1965. Brief facts necessary for the case can be stated thus:
The petition was filed under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') for eviction on the ground of arrears of rent and also on the ground of user of the building in such a way as to destroy or reduce its value and utility materially and permanently. It was contended by the landlady that the rent was kept in arrears and that in spite of notice, it was not paid. With regard to the claim under Section 11(4)(ii) of the Act, it was contended that the tenants have cut open the northern wall of the petition schedule building and a door was fixed. Besides in the land appurtenant to the building,
RCR 392/04 2
a well was constructed without the consent of the landlady. By doing so, it was contended that the tenants used the building in such a manner as to reduce its value and utility materially and permanently.
RCR 392/04 3
under Section 11(2)(b) also. It was further found that the tenants have dug a well in the land appurtenant to the building and a bath room was also constructed and thus the value and utility of the building was materially and permanently diminished and thus the order of eviction was passed under Section 11(4)(ii) also. The tenants filed appeal challenging the findings of the court below. The Rent Control Appellate Authority found that the plea raised by the tenants that the well and bathroom were in existence even at the time of agreement, is fallacious. Relying on the evidence of P.W.2, the Advocate Commissioner and Exts.A5 and A6 reports filed in the suit filed by the landlady against the tenants, it was found that the well was constructed shortly before the litigation. It was also found that the bathroom was constructed using hollow bricks and it was constructed recently, i.e., just prior to the inspection of the Advocate Commissioner. But the learned Appellate Authority found that the well was dug not within the land leased out to the tenants but outside. The Appellate Authority further found that the well which was dug will not affect the structural stability of the building. Similarly, it was also found that the bath room constructed by the tenants did not affect the value and utility of the building since it
RCR 392/04 4
was not constructed in the land forming part of the lease. Though it was alleged that a door was provided from the house to the northern side so as to facilitate entry to the bathroom, the learned Appellate Authority found that neither P.W.2 (Advocate Commissioner) nor P.W.1 did state that the door so fixed would cause diminution in the value and utility of the building materially or permanently. Thus the appeal was allowed and the order of eviction passed under Section 11(4)(ii) was set aside.
RCR 392/04 5
according to the tenants, may increase the value of the building, but in the point of view of the landlady, it will reduce or decrease the value of the building. The reduction or impairment in the value or utility of the building has to be adjudged from the point of view of the landlady. Thus, the learned counsel for the revision petitioner would submit that by looking at the perspective of the landlady, it can be very well found that she dug the well and constructed latrine/bathroom in flagrant violation of the lease agreement. Though the argument advanced by the learned counsel is attractive, it is pointed out by Sri.Jayakumar, the learned Senior Counsel appearing for the respondents/tenants that the well even according to the landlady was not dug in the land appurtenant to the building which forms part of the lease. In other words, even according to the landlady, the well was dug by the tenant trespassing into the property which is outside the tenanted premises and that was the reason why the landlady filed a suit for injunction against the tenants restraining them from digging the well. Similar is the position with regard to the construction of the latrine/bathroom as well.
that the lease does not take in the bathroom nor does it show
RCR 392/04 6
that there was a well in existence which was covered by the lease. Therefore, the contention advanced by the tenants that there was well and bathroom in existence even at the inception of the lease and that the well and bathroom form part of the lease was rightly found against the tenants by the learned Appellate Authority. If the land where the well was dug does not form part of the tenanted premises, it cannot be construed that it is an appurtenant land coming within the definition of building under Section 2(1) of the Act. If only the appurtenant land was let to the tenants, it would include the term 'building' occurring in Section 2(1) of the Act. Since the well and the bathroom put up by the tenants do not from part of the land let out by the landlady along with the main structure, it cannot be said that the digging of the well or the construction of the bathroom outside the building let out would attract the objectionable user of the building as mentioned in Section 11(4)(ii) of the Act. In other words, if only the tenant 'uses' the 'building' let out by the landlady in such a manner as to reduce its value and utility, it would attract Section 11(4)(ii). Since the construction of bathroom/latrine and digging of well was done outside the 'building' and as a suit for injunction was filed by the landlady in
RCR 392/04 7
respect of the same, she cannot now turn round and contend that it amounts to 'use' of the 'building' so as to attract the mischief of Section 11(4)(ii). Had the constructions been done in the appurtenant land let out to the tenants, coming within the definition of “building”, then the landlady could have certainly sustained a claim for eviction under Section 11(4)(ii) of the Act.
RCR 392/04 8
Considering the location of the building, we find that if let out, now the petition schedule building would fetch more than Rs.1000/- per month. Therefore, we refix the monthly rent at Rs.1000/- payable with effect from 1.3.2011. It is open to the parties, if aggrieved, to move the Rent Control Court for regular fixation of the fair rent. It was also submitted by the learned counsel for the landlady that the subsequent rent was kept in arrears. There is already an order of eviction passed under Section 11(2)(b). The said order of eviction can be got vacated under Section 11(2)(c) of the Act. Subject to what is stated above, this revision is dismissed.
PIUS C.KURIAKOSE, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
srd
RCR 392/04 9
3 issues framed by the court
Whether construction or doing of an act in land adjacent to the building but not forming part of the building lets would entitle landlady to eviction under Section 11(4)(ii).
Whether cutting of northern wall to provide a door caused diminution in the value and utility of the building.
Whether the revision petition under Section 11(4)(ii) succeeds.
Colour shows how this judgement treated each authority
Vipin Kumar v. Roshan Lal AnandReferred¶6
Vipin Kumar v. Roshan Lal Anand & Ors. (JT 1993(3) S.C. 171) · Who else cites this
Gurbachan Singh v. Shivalak Rubber IndustriesReferred¶6
Gurbachan Singh v. Shivalak Rubber Industries (AIR 1996 S.C. 3057) · Who else cites this
Mohanan v. MuhiyudheenReferred¶6
Mohanan v. Muhiyudheen (2010(1) KLT 512)
Francis v. DavisReferred¶6
Francis v. Davis (2005(3) KLT 815)
Seethalakshmi Ammal v. Nabeesath BeeviReferred¶6
Seethalakshmi Ammal v. Nabeesath Beevi (2003(1) KLT 391)
3 provisions across 1 enactments
CHINNAPPA KADEEJABI
MARIYAMBI
PIUS C. KURIAKOSE
N. K. BALAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
