Dismissed

Chacko Varghese v. Joseph @ Jose

Kerala HC7 Feb 2019RCRev./53/2019

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging an eviction order under the Kerala Buildings (Lease and Rent Control) Act. Upholding lower courts, it found digging a bore well near the building reduced its value and utility without landlord consent, justifying eviction. Time was granted to vacate subject to conditions.

What did the court decide?

The revision was dismissed. Six months time granted to vacate provided the tenant files an affidavit undertaking vacating within six months and deposits arrears.

Chacko Varghese Vs Joseph @ Jose — Landlord and Tenant | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940

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RCRev..No. 53 of 2019

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AGAINST THE JUDGMENT IN RCA 25/2016 of DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA DATED 12-12-2018

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AGAINST THE ORDER IN RCP 7/2015 of PRINCIPAL MUNSIFF COURT/RENT CONTROL COURT,ALAPPUZHA DATED 31-08-2016

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REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:

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CHACKO VARGHESE AGED 62 YEARS S/O. VARGHESE, EDAPPARAMBIL HOUSE, PALLIPPURAM MURI, PALLIPPURAM P.O., CHERTHALA 688 533.

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BY ADVS.SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.J.OM PRAKASH SRI.T.G.MAHESH SRI.T.G.MANOJ SRI.T.G.SANTHOSH

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RESPONDENT/RESPONDENT/PETITIONER:

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JOSEPH @ JOSE, AGED 75 YEARS, S/O. JOSEPH, THYVELIKKAKATHU, PALLIPPURAM MURI, PALLIPPURAM VILLAGE, CHERTHALA-688 533.

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

R.C. Rev.53/19

O R D E R

K. Harilal, J.

The revision petitioner is the tenant, who is confronting with an order of eviction passed by the Rent Control Court, Cherthala in R.C.P.No.7/2015 and affirmed by the Rent Control Appellate Authority, Alappuzha in R.C.A.No.25/2016. The Rent Control Petition was filed under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to 'the Act' for short).

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2. The respondent resisted the claim for eviction on all the grounds. After considering the evidence on record, the Rent Control Court passed an order granting eviction under Sections 11(2)(b) and 11(4)(ii)

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R.C. Rev.53/19

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of the Act and rejected the claim for eviction

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under Section 11(3) of the Act. Feeling aggrieved, the respondent preferred the aforesaid Rent Control Appeal. In the said appeal, the Appellate Authority rejected the claim for eviction under Section 11(2)(b); but confirmed the order of eviction passed by the Rent Control Court under Section 11(4)(ii) of the Act. Thus, the legality and propriety of the concurrent findings under Section 11(4) (ii) of the Act have come up in this revision.

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3. Heard the learned counsel for the revision petitioner/respondent.

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4. The sum and substance of the arguments advanced by the learned counsel for the revision petitioner/respondent is that the courts below went wrong by granting an order of eviction under Section 11(4)(ii) of the

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R.C. Rev.53/19

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Act, in the absence of sufficient evidence to prove that the usage of the building by the respondent has reduced its value and utility materially and permanently. It is the case of

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the petitioner that the respondent has dug a bore well in the lean (charthu) attached to the building, which was leased out to the respondent, without the consent or knowledge of the petitioner. In the counter statement itself, the respondent has narrated that in the year 2010 he dug a bore well for drawing water in the lean attached to the building for water for his bakery business, with the consent and knowledge of the petitioner. Thus, the digging of the bore well stands admitted by the respondent himself.

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5. In view of the admission from the part

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of the respondent, the questions to be

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R.C. Rev.53/19

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considered are; (1) whether the digging of bore well has reduced the value and utility of the building, and (2) whether the respondent has dug the bore well with the consent of the petitioner/landlord.

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6. In Ext.C1 report also, the Commissioner has reported the existence of such a bore well in the lean portion of the tenanted premises. While considering the reduction of value and utility of the building, it is obligatory on the part of the court to consider the question with the view point of the landlord and not that of the tenant.

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7. In the instant case, it has come out in evidence that the bore well has been dug in the tenanted premises itself. It is a matter of common knowledge that the extraction of ground water from the earth, very near to the

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building would, of course, be a danger to the building itself. When the respondent himself admitted the digging of the bore well very near to the building, no further enquiry need be conducted as to whether it will cause damage to the building. More over, in Ext.C1 report, the Commissioner has reported that the building is a very old and dilapidated one and cracks were also seen on the front wall of the building. So it can be said that the act of digging bore well very near to the tenanted premises would cause damage to the building.

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8. Coming to the consent of the landlord, no evidence has been adduced to prove the claim of the respondent, that he has dug the bore well with the consent of the landlord.

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9. In the above view, the courts below are justified in arriving at a finding that the

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respondent has used the building in a way reducing the value and utility of the building, materially and permanently. We do not find any reason to interfere with the aforesaid finding. Therefore, this Rent Control Revision will stand dismissed.

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10. The learned counsel for the petitioner seeks time to vacate the tenanted premises. However, having regard to the facts and circumstances of the case, the revision petitioner is given six months time from today to vacate the tenanted premises, on the following conditions:

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i. The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months from today.

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ii. The respondent/tenant shall deposit the entire

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R.C. Rev.53/19

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arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default.

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iii. In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order.

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The Rent Control Revision is dismissed

accordingly.

Sd/-

K.HARILAL Judge

Sd/-

ANNIE JOHN Judge

okb

//True copy// P.A. to Judge

Chacko Varghese v. Joseph @ Jose

Case brief

What is this about?

What did the court decide?

Chacko Varghese v. Joseph @ Jose

Case brief

What is this about?

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