BALAGANGADHARA MENON v. T. V. PETER — 1984 DIGILAW 127 (KER)

Judgment :- 1. These revisions by the common landlord arise out of two separate petitions RCP. No. 79 of 1978 and RCP. No. 85/78 respectively on the file of the Rent Controller, Ernakulam. The petitions sought eviction of the respective respondents, who are tenants of two adjacent buildings under S.11(2)(b) and (4) (iv) of the Kerala Buildings (Lease and Rent Control) Act on the grounds that they were in arrears of rent, that the buildings needed reconstruction and that the petitioner required bona fide to reconstruct them. The Rent Controller disallowed eviction on the former ground as the rent was not in arrears. He however upheld the latter ground under S.11(4)(iv) and directed the respondents to put the petitioner in possession of the buildings within one month with a default clause that on their failure be could recover possession through court. The petitioner was ordered to reconstruct the buildings within six months from the date of recovery of possession and the respondents were given the first option to get the reconstructed buildings allotted to them with liability to pay fair rent. The orders were confirmed on appeals by the Subordinate Judge, Ernakulam who is the Appellate Authority. However on revisions taken by the respondents the IInd Additional District Judge, Ernakulam reversed the orders and dismissed the petitions. The petitioner seeks to set aside decisions of the Additional District Judge. 2. Although the proceedings originated in separate petitions and were the subject of separate orders by the Appellate Authority and revisional Court it is better to deal with the revisions by a common judgment as the same questions fall to be decided on substantially the same type of evidence. 3. The two buildings are adjacent to one another and stand on the western side of the Mahatma Gandhi Road, Ernakulam near the Kavitha Theatre and the Central Bank. The buildings were constructed in 1958. The buildings in CRP. 4140 was let in 1970 and the buildings in CRP. 4141 was let in 1971. The respondents are carrying on business in the two buildings. The petitioners alleged that the buildings are old and dilapidated, that they required reconstruction, that he intended bona fide to reconstruct them and that he had the means to do so. He also stated that the development of the area which was a very important place in the town also justified the reconstruction of the buildings. The petitioners alleged that the buildings are old and dilapidated, that they required reconstruction, that he intended bona fide to reconstruct them and that he had the means to do so. He also stated that the development of the area which was a very important place in the town also justified the reconstruction of the buildings. The respondents resisted the prayer contending that the buildings are not old or dilapidated, that they did not require reconstruction and that the petitioner had no means to reconstruct them. 4. As stated above, the petitioner's claim was accepted by the Rent Controller and the Appellate Authority. Their decisions were however reversed by the Additional District Judge. 5. Counsel for the petitioner strongly contended that the revisional judge has acted illegally and without jurisdiction in reversing the concurrent orders of the Rent Controller and the Appellate Authority, that even on the merits the conclusions of the first two authorities were sound and beyond challenge in revisions. 6. One of the points in controversy between the parties was the petitioner's means to reconstruct the buildings if eviction was allowed. He gave evidence that he was a lawyer of 36 years' standing, that he has been a Senior Government Pleader in the High Court for over a decade, that he had Bank deposits of nearly one lakh of rupees and that he had immovable properties within the town which he could either mortgage or sell for raising money to supplement the cash in hand to reconstruct the buildings. The Rent Controller and Appellate Authority were impressed with his evidence and ability to reconstruct the buildings. The revisional judge has however observed that the lower courts merely presumed the petitioner's means because of his 36 years' standing as a lawyer and that such presumptions have no place in Courts of Law. This is a perverse and completely unsustainable reading of the orders of the Rent Controller and Appellate Authority. Their conclusions are based upon a total assessment of the petitioner's evidence as pw.1 and not upon presumptions erroneously assumed by the revisional Judge. It is not the view of the learned judge that in assessing the evidence the authorities below bad fallen into an error which is amenable to correction in revision. In our opinion, in reaching this conclusion the revisional judge has acted with material irregularity and even without jurisdiction. It is not the view of the learned judge that in assessing the evidence the authorities below bad fallen into an error which is amenable to correction in revision. In our opinion, in reaching this conclusion the revisional judge has acted with material irregularity and even without jurisdiction. He ought not to have upset the finding on this aspect. 7. The more important question is whether there was ground enough for the learned judge to reverse the conclusion of the two authorities on the petitioner's claim under S 11(4)(iv) of the Act. The buildings were constructed around 1958. They were therefore about 20 years old when the petitions were brought in 1978. The commissioner's reports, Ext. All in CRP. 4140 and Ext. Cl in the other case however show that dilapidation had set in, necessitating reconstruction. Ext. All was prepared by Pw. 2, the Commissioner appointed in OS. 171 of 1978 of the Munsiff's Court, Ernakulam instituted by the petitioner for a permanent injunction to restrain the tenant from making repairs and improvements to the buildings. This was shortly before the petition fop eviction was filed. Ext. A 11 was prepared in that case and was put in evidence here by examining Pw. 2. Pw.2 who made the inspection on 9-3-1978 has stated that the northern wall of the building when viewed from outside disclosed a pathetic condition, that the wall was supported by 3 big concrete structures with one end fixed on the ground and the other end reaching the top of the wall, that the southern wall was leaning towards the south and that altogether the building was on the verge of collapse. The report further show that there were other damages also to the building. In discussing the nature of the building and the need for reconstruction the two authorities below referred apart from the Commission report and the evidence of the petitioner as pw.1 to the nature of the locality, its importance and its fast development by the construction of new and substantial buildings. In the revisional court it appears to have been strongly pressed by counsel for the tenant that the Rent Controller and the Appellate Authority have mixed up the condition of the buildings and the condition of the locality and this was an erroneous approach. In the revisional court it appears to have been strongly pressed by counsel for the tenant that the Rent Controller and the Appellate Authority have mixed up the condition of the buildings and the condition of the locality and this was an erroneous approach. He also discussed whether the relevant point was the nature of the building or whether along with it the condition of locality could also be taken into account. On the former point he held agreeing with the tenants that the mixing up of the two aspects had vitiated the conclusion. It was on this substantial ground that he upset the decision on this aspect. 8. We find it unable to agree with the learned Judge. For one thing, in discussing the importance of the locality of the fast developing nature of the area, which was permitted by some of the decisions of this Court, neither the Rent Controller nor the Appellate Authority had overlooked or ignored the condition of the building. They have recorded their opinion that the condition of the building was such that it required reconstruction and this was on the basis of the evidence. This finding was not mixed up with the condition of the locality even though in considering this aspect reference was made to the condition of the locality as well. There can therefore be no question of the conclusion being vitiated in the manner observed by the revisional Judge. For another, if the learned judge thought that the reference to the condition of the locality was immaterial or even irrelevant he could well have left out of account that part of the discussion and considered how far the finding on the other point could be sustained. It is not as if the first two authorities had reached a subjective conclusion on relevant and irrelevant matters so as to vitiate the resultant conclusion. Here the authorities reached a conclusion on two factors objectively and if one was irrelevant, what the revisional court ought to have done was to reject what was irrelevant and determine how far the conclusion on the basis of the relevant material would stand. 9. In CRP. No. 4141 the petitioner had taken out a Commission and the Commissioner had submitted a report Ext. Cl. The revisional judge has extracted paragraphs of the Appellate Authority's order relating to the condition of the buildings. That paragraph states that Ext. 9. In CRP. No. 4141 the petitioner had taken out a Commission and the Commissioner had submitted a report Ext. Cl. The revisional judge has extracted paragraphs of the Appellate Authority's order relating to the condition of the buildings. That paragraph states that Ext. Cl shows that the southern wall of the building was damaged, that it was slanting towards south, that the building itself was old and was situated on the western side of the M. G. Road which is an important locality with such important buildings as the Kavitha Theatre and the 3 storeyed building of the Central Bank of India and several other buildings near about. The Appellate Authority also pointed out that the evidence further showed that the building is the southern room of the two rooms located in a larger building separated by a common wall, that the northern wall was also damaged and that certain supports were provided for that wall from outside to prevent it from collapsing. The approach of the Additional District Judge in this case was the same as in the other case. What we have said above in connection with the other case applies to his reasoning and conclusion in this case as well. 10. In respect of CRP 4140 the revisional judge held that the Commission report Ext. All should have been ignored since it was not prepared for the purpose of this petition and the tenant was not properly represented. This is an erroneous and irregular approach to the problem. As mentioned above, the plaintiff had brought OS. 171 of 1978 to stop the tenant in this case, from making repairs and carrying on re-constructions. The report Ext. All was put in evidence by examining pw. 2. In this situation it was of little consequence that the Commission was issued ex-parte in OS. 171 or that the report was not prepared in the eviction proceeding. What is relevant is the report as proved by pw. 2 and the merits of his testimony. The revisional judge has also observed that even the Commissioner's report does not say that the building is irreparable or that it requires any reconstructions that were being attempted by the tenant. Further the judge was wrong in thinking that a building needs reconstruction only after it has become irreparable or is about to collapse. The revisional judge has also observed that even the Commissioner's report does not say that the building is irreparable or that it requires any reconstructions that were being attempted by the tenant. Further the judge was wrong in thinking that a building needs reconstruction only after it has become irreparable or is about to collapse. It is not the law that the landlord should wait until that stage before he attempts a reconstruction. 11. Counsel for the tenants argued relying on Thanka v. Narayani, 1981 KLT. 502, that under S.11(4)(iv)the relevant factor is the condition of the building and that the nature of the locality and everything else is irrelevant. Counsel argued that this is against the earlier decisions of this Court but nevertheless pressed us to accept it. That the learned judge who decided 1981 KLT. 502 did not rule out the social conditions or the conditions of the locality as irrelevant, is clear from his Lordship's warning not to inflate these circumstances at the expense of the physical condition of the building and the further statement that they "cannot be decisive in assessing the need to reconstruct the existing building." This is far from eliminating these factors out of consideration as sought to be made out by counsel for the tenants. To make a brief reference to the earlier decision, in 1967 KLT. 811 K. K. Mathew, J. held following a still earlier decision ILR.1964 (1) Kerala 254 that the court can have regard to the area where the building is situated, the nature of the developments that are taking place in the area etc. Substantially the same view was taken by V. R. Krishna Iyer J. in 1970 KLT. 257. One of the latest decisions where the same view is reported is 1979 KLT. 397 where Vadakkel J. referred to the relevant earlier cases of this Court on this aspect. 1981 KLT 502 is silent about the earlier case law. We find it unable to agree with the narrow view laid down in 1981 KLT 502 on this aspect. We have already indicated that the original and appellate courts have found on the conditions of the building and even on the narrow view their conclusions are right. 12. 1981 KLT 502 is silent about the earlier case law. We find it unable to agree with the narrow view laid down in 1981 KLT 502 on this aspect. We have already indicated that the original and appellate courts have found on the conditions of the building and even on the narrow view their conclusions are right. 12. We have already dealt with the principal criticism of the revisional judge, that the Rent Controller and the appellate judge have mixed up the condition of the building and the condition of the locality. They have recorded their opinions on the evidence in the case that the condition of the buildings justified reconstruction. That opinion is not vitiated by reference to the condition of the locality. Further it is not irrelevant to refer to the local conditions. 13. " On the findings of fact recorded by the two authorities there was little ground for interference even though the jurisdiction under S.20 of the Act is wider than the jurisdiction under S.115, CPC. There was no illegality, irregularity or impropriety in the order for the learned judge to interfere. In upsetting the order in this situation he has, in our view, acted with material irregularity and even without jurisdiction. 14. The learned judge has referred to a number of decisions without trying to collate them, almost mechanically. Nearly all those decisions were quoted before us also We do not think that we should on the facts established in the case discuss these decisions. 15. Counsel for the tenants raised a contention that no revision will lie in the High Court from the revisional orders of the District Judge. The question is no longer res integra in this Court. See 1968 KLT. 583 FB. We reject the contention. 16. We find that there was no ground for the learned Additional District Judge to interfere under S.20 of the Act with the orders of the Appellate Authority and Rent Controller. The revisions have therefore to be allowed. We set aside the orders of the Additional District Judge and allow the revisions with costs. Allowed.