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2010 DIGILAW 951 (KER)

P. v. Mohammed Hajee VS Mundoli Muhammed Hajee

2010-12-06

P.S.GOPINATHAN, PIUS C.KURIAKOSE

body2010
Judgment :- P.S. Gopinathan, J. The second respondent in R.C.P.19 of 1997 on the file of the Rent Control Court, Kozhikode -II is the revision petitioner herein. The first respondent (late) preferred the above petition before the Rent Control Court seeking an order of eviction under Section 11(2) (b), 11(4)(i) and 11(4)(ii) of Act 2 of 65 against the revision petitioner and 2nd respondent alleging that the petition schedule building was let out to the second respondent on 20.6.1965 as per Ext.A1 rent deed on a monthly rent of Rs. 37.50 and that it was subsequently enhanced to Rs. 250 and that the rent of the petition schedule building was kept in arrears from April, 1996 onwards and that despite the notice demanding discharge of arrears of rent, no rent arrears was cleared and that the second respondent, without the knowledge of the first respondent, sub-let the petition schedule building to the revision petitioner and that the revision petitioner and the second respondent had removed the wall separating the two rooms and thus damages were caused on the building and thereby the value and utility of the petition schedule building was reduced permanently and materially. 2. The revision petitioner and the second respondent jointly defended the proceedings by contending that there is no arrears of rent and that the second respondent surrendered the lease as per Ext.A1 in the year 1974 and then it was let out to the revision petitioner by the first respondent under an oral transaction and that the revision petitioner had not caused any damages to the petition schedule building so as to reduce its value or utility, materially or permanently. 3. The Rent Control Court, during the course of enquiry, recorded the evidence of the first respondent as PW.1 and that of the revision petitioner and the second respondent as RWs 1 and 2. On the side of the first respondent Exts.A1 to A5 were marked. Report and sketch submitted by the Commissioner were marked as Exts.C1 and C1(a). After evaluating the evidence on record, the Rent Control Court arrived at a finding that there is no sub lease, but the revision petitioner had obtained direct lease on oral transaction and that no damage was caused to the building and that the revision petitioner had defaulted payment of rent and hence there is arrears of rent. After evaluating the evidence on record, the Rent Control Court arrived at a finding that there is no sub lease, but the revision petitioner had obtained direct lease on oral transaction and that no damage was caused to the building and that the revision petitioner had defaulted payment of rent and hence there is arrears of rent. Consequently, the petition was allowed in part under Section 11(2) (b) against the revision petitioner. The prayer for eviction sought under Section 11(4)(i) and 11(4)(ii) was declined. Assailing the order declining eviction under Section 11(4)(i) and 11(4)(ii); and eviction under Section 11 (2) (b) against the second respondent, the first respondent preferred appeal as RCA 4 of 2001 before the Appellate Authority. The Appellate Authority, by the impugned judgment dated 28.2.2003, allowed the appeal and the revision petitioner and the second respondent were directed to hand over possession of the petition schedule building to the first respondent under Section 11(2)(b), 11(4)(i) and 11(4)(ii) of the Act. Assailing the legality, correctness and propriety of the above judgment, this revision petition was preferred. Pending revision, the 1st respondent died and the legal heirs were impleaded as respondents 3 to 8. 4. We heard the learned counsel appearing on either side and perused the judgment impugned as well as the order of the Rent Control Court and the records. 5. It is not disputed that the petition schedule building was originally let out to the second respondent as per Ext.A1 dated 20.6.1965. According to the first respondent, Ext.A1 was not terminated and there was no oral lease in favour of the revision petitioner. The revision petitioner could not bring out any evidence to show that there was any surrender of Ext.A1 lease transaction or any subsequent oral lease in favour of the revision petitioner other than the oral assertion which was denied by the landlord. The learned counsel for the revision petitioner took us through the evidence of RWs 1 and 2 and the documents produced by the revision petitioner. Those documents, no doubt, would show that the revision petitioner had been doing business in the petition schedule building. The learned counsel for the revision petitioner took us through the evidence of RWs 1 and 2 and the documents produced by the revision petitioner. Those documents, no doubt, would show that the revision petitioner had been doing business in the petition schedule building. According to the learned counsel, the revision petitioner had been doing business for a pretty long time and that the long and continuous running of business by the revision petitioner is an indication that there is termination of the earlier lease and subsequent oral lease in favour of the revision petitioner. Going by the judgment and order of the authorities below as well as the evidence on record, we are unable to accept the argument advanced by the learned counsel. Probably, the revision petitioner might have been doing business in the petition schedule building for a long time. But there is nothing on record to show that such business was with the knowledge of the first respondent. Doing business in the petition schedule building for a long time by the revision petitioner would not amount to evidence to come to a conclusion that there was termination of Ext.A1 lease and oral lease in favour of the revision petitioner by the first respondent. But may amount to evidence regarding sub-lease. We notice that the first respondent had been cautious to get a lease deed executed in the year 1965 when the building was let out. The execution of Ext.A1 was not disputed by the revision petitioner and the second respondent. We do not think that even if Ext.A1 lease was terminated by surrender, the first respondent would let out the building to the revision petitioner without any document because Ext.A1 reveals that the 1st respondent was in the habit of insisting document for lease transaction. In the event there was surrender of lease covered by Ext.A1 and subsequent lease in favour of the revision petitioner, there was no difficulty at all at least to make an endorsement over ExtA1. Since there is no endorsement on Ext.A1 regarding surrender it has to be presumed that as deposed by PW.1, there is no surrender of lease evidenced by Ext.A1. The evidence of PW.1 that Ext.A1 lease was not surrendered is supported by Ext.A1. On the other hand, the surrender of Ext.A1 lease and subsequent oral lease asserted by the revision petitioner is not supported by any independent evidence. The evidence of PW.1 that Ext.A1 lease was not surrendered is supported by Ext.A1. On the other hand, the surrender of Ext.A1 lease and subsequent oral lease asserted by the revision petitioner is not supported by any independent evidence. It is crucial to note that though the revision petitioner and the second respondent have a case that Ext.A1 lease was surrendered and oral lease was given in 1974, they didn't specify the date of either surrender or subsequent lease. The plea regarding surrender and subsequent lease is thus very vague in nature. It is also crucial to note that the first respondent had not at any time received any rent from the revision petitioner or had issued any receipt. The non payment of rent by the revision petitioner itself would belie the plea of oral lease in his favour. In this view of the matter, there is no reason to disbelieve PW.1. On the other hand, the evidence of RWs.1 and 2 are not convincing. It is also legitimate to presume that, till the contrary is proved, the lease transaction created by Ext.A1 continues. In the given set of facts the plea of surrender of Ext.A1 lease and oral lease in favour of the revision petitioner is belied by the non endorsement on Ext.A1 supported by the assertion of PW.1 that Ext.A1 lease was not surrendered. Though the revision petitioner has got a case that he has been doing business in the petition schedule building since 1974, there is nothing to suggest that it was done so with notice to the first respondent or that the first respondent was aware of it at any time before 1996. Any document obtained by the revision petitioner without notice to the first respondent can no way be reliable against the first respondent regarding the oral lease. Such being the materials on record, we find that the Appellate Authority had correctly appreciated the evidence on record and arrived at a finding against the revision petitioner and in favour of the first respondent. We find no reason to interfere with that finding. 6. As regards the damages caused to the petition schedule building, it is revealed out that originally there were two rooms and without the knowledge and consent of the first respondent, the wall separating the two rooms were demolished by the revision petitioner to make both the rooms a single room. We find no reason to interfere with that finding. 6. As regards the damages caused to the petition schedule building, it is revealed out that originally there were two rooms and without the knowledge and consent of the first respondent, the wall separating the two rooms were demolished by the revision petitioner to make both the rooms a single room. No doubt, the demolition of the walls .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. Landlord had designed and built the rooms by spending money and materials to suit his need and utility. Tenant has no right to demolish the wall in between the rooms and to say that thereby the value and utility are increased. It is also pertinent to note that the commissioner had reported that the petition schedule building is part of a two storied building and cracks were developed on the northern and middle walls of the upstair rooms. The evidence of the first respondent is that because of the demolition of the wall in between the rooms, structural strength of the building was reduced and that resulted in cracks on the northern and middle walls in the upstairs. We find no reason to diverge with the appellate authority who believed the evidence of the first respondent. The Appellate Authority had correctly appreciated the evidence regarding damages in the correct perspective and we find little reason to interfere with the said reason also. The order of the rent Control Court would show that it miserably failed in appreciating the evidence in the correct perspective. It ignored the ground realities while appreciating the evidence. The conclusion arrived by the Rent Control Court is unsustainable. The eviction sought under Section 114)(i) and 11(4)(ii) was declined by the Rent Control Court for no valid reason, but because of the failure to appreciate the evidence in the correct perspective. The eviction sought under Section 11(2)(b) was declined against the 2nd respondent only because the sublease was found against the first respondent. In view of the discussion above, the first respondent is entitled to eviction on all the three grounds, which was rightly granted by the Appellate Authority, which is the final fact finding authority. The eviction sought under Section 11(2)(b) was declined against the 2nd respondent only because the sublease was found against the first respondent. In view of the discussion above, the first respondent is entitled to eviction on all the three grounds, which was rightly granted by the Appellate Authority, which is the final fact finding authority. There is no good reason to interfere in exercise of the revisional powers. 7. In the result, the revision petition is without any merits and it is accordingly, dismissed. Learned counsel for the revision petitioner sought for 18 months time to vacate the premises with a plea that the revision petitioner has been doing business for a pretty long time and has to find out an alternate accommodation. The learned counsel for the respondent strongly objected to the request for such a pretty long time stating that sublessee deserves no such benefit. Having heard either side, we find that taking into account of the peculiar facts and circumstances of the case, it would be just and appropriate to grant time till 31.12.2011 on the following conditions: (i). The revision petitioner shall file an affidavit within three weeks from today before the Rent Control Court undertaking to vacate the premises on or before 31.12.2011 without raising any objection. (ii). The arrears of rent, if any, shall be cleared within a period of one month from today. (iii). The revision petitioner shall continue to pay damages for occupation at the rate of Rs.1,500/- (One thousand and five hundred only) with effect from 1.1.2011. In case the revision petitioner files the affidavit and honours the undertaking as above, the Rent Control Court/execution court shall keep the order of eviction in abeyance till 31.12.2011. In the event the revision petitioner fails to comply with any of the above conditions, the first respondent is at liberty to get the order of eviction executed forthwith on proof of such failure to comply with any of the conditions.