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2009 DIGILAW 50 (KER)

Sasidharan v. Edappayil Premalatha

2009-01-16

C.KURIAKOSE, M.C.HARI RANI

body2009
Judgment : Pius C. Kuriakose, J. The tenant against whom order of eviction is passed concurrently by the rent control court and the appellate authority on the ground under Sections 11(2)(b) (arrears of rent) and 11(4)(ii) (user of building in such a manner as to reduce the value and utility of the building materially and permanently) is the revision petitioner. It was submitted at the Bar that since the order of eviction under Section 11(2)(b) is virtually a provisional one which is liable to be vacated by making deposit under Section 11(2)(c), it is not necessary that the above order is interfered with and it will suffice if time is granted for making the requisite deposit for filing application under Section 11(2)(c). Therefore we in this revision petition are concerned with the order of eviction passed under Section 11(4)(ii) only. 1. 2. The case of the landlord under Section 11(4)(ii) was that the tenant is running a wood industry in the building and that he is using machinery in a careless manner. It was alleged that operation of electric motors fitted in the building cause constant vibration. It was further alleged that respondent uses timber logs inside the building without caring for the safety of the building and that because of such misuse, the building has suffered permanent and material damage resulting in loss of utility and value of the building. It is also alleged that the user of the building is in such a manner as to destroy the building. The tenant in his objections denied the allegation that value and utility of the building has been lost due to the conduct of the tenant. It was contended that the building got damaged only due to lack of timely repairs and maintenance by the petitioner. It was also contended that the tenant started running the industry in 1987 and that the landlady and her men trespassed into the building and demolished the northern wall and shifted its position. There was a police case and the landlady had assured to carry out the repair works. The allegation that the machinery and motors used by the respondents do cause extensive vibration as to affect the strength of the building was denied. There was a police case and the landlady had assured to carry out the repair works. The allegation that the machinery and motors used by the respondents do cause extensive vibration as to affect the strength of the building was denied. It was alleged that the landlady is running a flour mill in the adjacent portion of the building and that she is using a 15 HP motor in that flour mill. That 15 HP motor is causing more vibrations affecting the entire building, it was alleged. .3. At trial before the rent control court, the evidence on the side of the landlady consisted of Exts.A1 to A3 and the oral testimony of PW1, the husband of the landlady. On the side of the tenant, the same consisted of Exts.B1 to B7 and his own oral testimony as RW1. Apart from that there were Commissioners report- Ext.C1 and Ext.C2 and plan -Ext.C3. The rent control court on an evaluation of the evidence would find that the allegation of the landlady that the use of machines run by the motor in the tenants work area has caused damage to the building cannot be correct. It was also found that the landladys allegation that the walls of the building was damaged by hitting with big timber logs can only be treated as a weird allegation. It was found by the court that the building has become completely dilapidated. But according to the court, the same is due to want of routine repairs and maintenance as alleged by the tenant. The rent control court noticed that Ext.A1 lease deed stipulates that the tenant can conduct repairs with the consent of the landlord. The tenant did not have a case that he had ventured to do any timely repairs and maintenance as envisaged in Ext.A1. The tenant admitted that at the time when the building was let out to him, the condition of the building was good and sound. Therefore it could be found that the tenant had not cared to provide or ask for any timely repair and maintenance to the building. Ext.B7 notice seeking for repairs was sent only after the institution of the rent control petition. Therefore it could be found that the tenant had not cared to provide or ask for any timely repair and maintenance to the building. Ext.B7 notice seeking for repairs was sent only after the institution of the rent control petition. The circumstances, according to that court will show that the tenant did not bother to effect timely repairs or maintenance to the building and the tenant is responsible for the present dilapidated condition of the building. On that reason, that court passed order of eviction under Section 11(4)(ii) against the tenant. The rent control appellate authority also virtually concurred with the conclusions of the rent control court giving slightly different reasons for confirming the order of eviction passed under Section 11(4)(ii). That authority accordingly dismissed the rent control appeal. 2. 4. We have heard the submissions of Sri.M.P.M.Aslam, learned counsel for the petitioner and Sri.R.Bindu Sasthamangalm, learned counsel for the respondent/landlady. After hearing both sides for some time, we suggested to the learned counsel to explore the possibility of settlement of the issue between their parties. Though it was so explored, it was reported that an out of court settlement is not possible. As directed by us, both sides have placed before us recently taken photographs of the entire building consisting of the petition schedule building and the adjacent building wherein the landlady is conducting flour mill. .5. It was strenuous and extensive submissions, which were addressed before us both by Sri.M.P.M.Aslam, learned counsel for the petitioner and by Sri.R.Bindu Sasthamangalam, learned counsel for the respondent/landlady. Sri.Aslam would assail the findings of the rent control court and the appellate authority in the context of ground under Section 11(4)(ii) forcefully. Learned counsel submitted that the rent control court and the appellate authority failed to remember that in the present case the rights and liabilities of the landlord and the tenant are governed by the provisions of Act 2 of 1965 and not by the provisions of Transfer of Property Act or any other law. Learned counsel submitted that the rent control court and the appellate authority failed to remember that in the present case the rights and liabilities of the landlord and the tenant are governed by the provisions of Act 2 of 1965 and not by the provisions of Transfer of Property Act or any other law. Learned counsel submitted that having found that the allegation of the landlady that damages have been caused to the building on account of the careless handling of timber logs inside the building or on account of the vibration caused by the motors installed inside the building is not correct, the courts below were not at all justified in venturing an investigation whether the tenant is guilty of making timely repairs and maintenance to the building. Counsel submitted that the parties were never at issue on the question, who was responsible for carrying out the timely repairs and maintenance to the building and whether the present condition of the building is on account of the non-doing of such timely repairs and maintenance. Counsel submitted that rent control appellate authority was not justified in relying on the judgment of this court in Siva Prabhu v. Abubacker Keyi (1972 K.L.R. 170) which was of-course to the effect that merely because the purpose of the lease was such as likely to cause damages to the building the tenants will not be allowed to contend that he will not be held responsible for the damages caused to the building. Sri.Aslam would submit that the injury which is complained of by the landlady is the injury of destruction of the premises resulting from the use of the building in a proper manner. That being so, the tenant cannot be held liable for the destruction caused to the premises. The fundamental rule that relief cannot be granted in a case which is not founded on pleadings was missed by the rent control appellate authority and this has resulted in serious prejudice to the revision petitioner/tenant. In this context Sri.Aslam would place strong reliance on the judgment of Sri.S.Padmanabhan, J. in K.H.Krishna Iyer & others v. Parvathy Ammal and others (1988 (2) KLJ 156). 3. 6. Thesubmission of Sri.Aslam were stiffly resisted by Sri.R.Bindu Sasthamangalam. In this context Sri.Aslam would place strong reliance on the judgment of Sri.S.Padmanabhan, J. in K.H.Krishna Iyer & others v. Parvathy Ammal and others (1988 (2) KLJ 156). 3. 6. Thesubmission of Sri.Aslam were stiffly resisted by Sri.R.Bindu Sasthamangalam. Sri.Bindu would draw our attention to the evidence in this case and submit that it was transparently clear that the value and utility of the building has been reduced materially and permanently. Ever since the building was let out to the revision petitioner, he alone was in possession and enjoyment of the same. Naturally the revision petitioner is to be held responsible for the present condition of the building which when compared to the condition of the adjacent building wherein the landlady is conducting flour mill is deplorable. 4. 7. Sri.Bindu Sasthamangalam drew our attention extensively to the deposition given by the landlady and the tenant and submitted that the defence of the tenant to the allegation of the landlady that the walls of the building have become extensively damaged, was that it was on account of landladys husband trespassing into petition schedule building and removal of the northern wall of that room, thereby reducing the width of that room. The said defence had fallen to the ground. According to Sri.Bindu the allegation stands disproved by the Commissioners report and also by the circumstance that such a complaint is raised years after the alleged incident and after the fresh lease deed Ext.A1 had been executed. Sri.Bindu conceded that it is not the prominent allegation of the landlady which is now accepted by the rent control court and the appellate authority. But according to him, the evidence will certainly justify the finding that the present condition of the building is on account of the negligent handling of timber locks inside the building by the tenant which was also one of the allegations of the landlord in the rent control petition. 5. 8. We have very anxiously considered the submissions addressed at the Bar. We have gone through the entirety of the evidence in the case since we thought the same necessary in view of the apparent conflict between the findings of the court and the pleadings of the landlord. We have scanned the .various photographs placed before us by either sides. 6. 9. We have gone through the entirety of the evidence in the case since we thought the same necessary in view of the apparent conflict between the findings of the court and the pleadings of the landlord. We have scanned the .various photographs placed before us by either sides. 6. 9. We are convinced that the present condition of the building is such that it can be stated without any hesitation that the value and utility of the building has become reduced over the years materially and even permanently. We use the word "permanently" since we feel that it will be difficult to restore the value and utility of this building by doing ordinary repairs. But deterioration of the condition of the building to the extent of reduction in value and utility materially and permanently by itself will not constitute ground for eviction under Section 11(4)(i). The statutory requirement is that permanent reduction in the value and utility of the building is attributable to the user of the building by the tenant. The burden to allege and prove that the value and utility of the tenanted building has become reduced materially and permanently on account of user of the building by the tenant is on the landlord. The specific allegation of the landlord is that the present condition of the building is attributable to the constant vibrations caused by the electric motors which are functioning in the building and also to the negligent handling of heavy timber logs by the tenant inside the building. As we read through the orders of the rent control court and the appellate authority, what we find is that the finding of those authorities is to the effect that the present condition of the building is attributable to the failure on the part of the tenant to discharge his obligation under Ext.A1 lease deed to keep the building under proper maintenance and repair. Ext.A1 unlike the previous lease deed Ext.B1 contains a provision to the effect that the tenant is entitled to carry out the necessary repairs to the building with the consent of the landlord. As pointed out by the rent control appellate authority, no material is produced by the tenant to show that the tenant made any endeavour either to carry out repairs or to seek the consent of the landlady. As pointed out by the rent control appellate authority, no material is produced by the tenant to show that the tenant made any endeavour either to carry out repairs or to seek the consent of the landlady. But as rightly submitted by Sri.Aslam the parties were not at issue on this point at all. The parties were at issue only as to whether the present condition of the building is attributable to the working of the motors and to the negligent handling of the timber logs inside the building. Sri.Bindu is certainly right in submitting that rules of pleadings are not to be adhered to in rent control proceedings so meticulously as in regular civil proceedings. But in rent control proceedings decision is to be taken in accordance with principles of justice, equity and good conscience (see Rule 11 (8) of the statutory rules). It will not be just or equitable to decide an RCP accepting a case which has no roots at all in pleadings. We are of the view that in this case the tenant did not have any opportunity to defend the allegation that the present condition of the building is attributable to his not ensuring the periodical repairs and maintenance of the building. In other words, we are in agreement with Sri.Aslams submission that prejudice has been caused to the tenant due to the absence of pleadings by the landlady regarding the case which is now accepted and made basis for decision by the rent control court and the appellate authority. 7. 10. The result of the above discussion therefore is as follows: The orders of the rent control court and the appellate authority are set aside. The rent control petition is remanded to the rent control court, Kozhikode. That court will permit the respondent/landlady to amend her pleadings and if pleadings are so amended, the revision petitioner will be permitted to file additional statement of objections. RCP will be enquired into further by the rent control court. The evidence already on record will form part of the evidence. The rent control court will take fresh decision on the basis of the evidence already on record and the evidence which comes to be adduced further. Since the RCP is of the year 1999, the learned Munsiff will make every endeavour to pass revised orders as directed above at the earliest and at any rate by 15/06/2009. The rent control court will take fresh decision on the basis of the evidence already on record and the evidence which comes to be adduced further. Since the RCP is of the year 1999, the learned Munsiff will make every endeavour to pass revised orders as directed above at the earliest and at any rate by 15/06/2009. The petitioner will have one months time to apply under Section 11(2)(c) for cancellation of the order under Section 11(2)(b). It is needless to direct that the petitioner/tenant will be bound to pay the rent which falls due during the pendency of the RCP promptly and regularly. The revision petition is allowed as above. But in the circumstances, parties will suffer their costs. The photographs placed by the parties will be returned to the counsel.