Kerala High Court
Chinnappan vs Dr.Sherry M.Joseph on 22 May, 2012
Author: A.V.Ramakrishna Pillai
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY, THE 22ND DAY OF MAY 2012/1ST JYAISHTA 1934
RCRev..No. 154 of 2012 ()
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IN RCA.3/2010 of RENT CONTROL APPELLATE AUTHORITY,KOTTAYAM
IN RCOP.2/2009 of RENT CONTROL COURT, KANJIRAPPALLY
REVISION PETITIONER(S)/APPELLANT/COUNTER PETITIONER:
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CHINNAPPAN
AGED 76 YEARS, S/O GEORGE, CHULLICKAL
PROPRIETOR, VIJAYA PRESS, MUNDAKKAYAM VILLAGE
KANJIRAPPALLY TALUK
BY ADVS.SRI.M.NARENDRA KUMAR
SRI.P.B.PRADEEP
RESPONDENT(S)/RESPONDENT/PETITIONER:
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DR.SHERRY M.JOSEPH
S/O JOSEPH, MOOLAYIL HOUSE, MUNDAKKAYAM P.O.
MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK.686565
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
22-05-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI JJ.
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R.C.R. NO. 154 OF 2012
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Dated this the 22nd day of May, 2012
O R D E R
Ramakrishna Pillai,J Tenant is in revision. The respondent landlord approached the Rent Control Court under Section 11 (4) (iv) and Section 11(2)(b) claiming eviction of the revision petitioner from the petition schedule building.
2. The brief summary of the case of the respondent is as follows; The petition schedule premises belonged to the father of the respondent. It is a very old building and is in a dilapidated condition. A plan has been submitted before the concerned local authority and sanction has been obtained for reconstruction of the building. The building proposed to be constructed would occupy a portion of the property belonging to the respondent as well as the property on the southern side belonging to the brother of the respondent. While making preparation for reconstruction, the respondent offered substitute arrangement to the revision petitioner in the newly constructed building before dismantling the tenanted premises. The revision R.C.R. No. 154 /2012 2 petitioner agreed to this initially. Reconstruction was started on the earlier understanding. When the time for dismantling the building arrived, the revision petitioner refused to vacate. So the construction work was stopped and the respondent approached the rent control court seeking eviction on the ground of reconstruction expressing his willingness to provide a space to the revision petitioner in the newly constructed premises.
3. The revision petitioner resisted the petition denying all the allegation including the age of the building. The main contention raised by him was that sanction obtained by the local authority was not proper as it was obtained by the father of the respondent.
4. The learned Rent Control Court raised proper points for trial and after considering the evidence consisting of the oral testimony of PW1 as well as Exts.A2 to A11, Ext.C1 and C2 series as well as Ext. X1 to X2(a), ordered eviction. The revision petitioner took the matter in appeal but without success.
5. We have heard the learned counsel for the revision petitioner. We have also perused the impugned judgment as R.C.R. No. 154 /2012 3 well as the order of the learned Rent Controller.
6. It is an admitted case that the petition schedule room originally belonged to the father of the respondent. The main argument advanced by the learned counsel for the revision petitioner is that it was the father of the respondent landlord who obtained the license from the local authority and the respondent cannot proceed with the construction on the strength of the said plan. In other words, there is no legal permit in the name of the respondent for the reconstruction of the building as the existing permit is in the name of his father. The Rent Control Court deputed a commissioner who filed Ext.C1 Mahazar and C1(a) sketch which would reveal the present condition of the building. It was noticed by the commissioner that the building was in an extremely dilapidated condition. The wooden planks of the building were seen decayed and the plastering of the walls was pealed off. The commissioner was assisted by a civil engineer . His report is also marked as Ext.C2. Ext.C2(A) is the sketch prepared by him. There are sufficient materials on record to hold that the petition schedule building is in a dilapidated condition which requires immediate R.C.R. No. 154 /2012 4 reconstruction.
7. Evidently and admittedly too the plan and permission was obtained from the local authority when the entire building was under the ownership of the father of the respondent. It is in evidence that the property where the building is situated was gifted to the respondent during the construction was in progress. The respondent, who gave evidence as PW1 , has stated that the revision petitioner earlier agreed to occupy the room of the building which is already constructed so that the existing old building could be demolished. But he withdrew from his undertaking later. He further stated that he is willing to give facility to the revision petitioner in the already constructed portion. Admittedly the revision petitioner is running a press in a tenanted premises.
8. As the eviction is sought under Section 11(4)(iv) the revision petitioner shall have a first option to have a room in the reconstructed building. The interest of the revision petitioner is protected by the statute itself. The respondent has produced the plan of the proposed building which is marked as Ext.A5. A6 is the estimate for the proposed building. There is evidence R.C.R. No. 154 /2012 5 to show that the respondent has sufficient means to construct the building. It is relevant to note that on the strength of the permit issued in the name of the father of the respondent reconstruction has been started and it is halfway. Only because of the existence of the old building in the tenanted premises the respondent who stepped into the shoes of his father could not complete the reconstruction of the building. The argument advanced by the learned counsel for the revision petitioner that, the construction cannot be proceeded on the strength of the existing plan, does not appear to be convincing.
9. On a consideration of the entire materials now placed on record, we are of the view that both the courts below, for arriving at a correct conclusion, appreciated the evidence in the correct perspective. We do not see any reason for interference under Section 20 as the impugned order does not suffer from any irregularity, illegality or impropriety. Accordingly, the revision fails and we decline jurisdiction under Section 20.
10. When our decision was made known to the learned counsel for the revision petitioner, he requested that six months time be given to the revision petitioner to give vacant position R.C.R. No. 154 /2012 6 of the tenanted premises. Considering all the relevant circumstances, we are of the view that three months time can be given to the revision petitioner to vacate the premises subject to the following condition:
(a). The revision petitioner (tenant) shall file an affidavit before the Rent Control Court or the Execution Court as the case may be within three weeks from today undertaking that he will peacefully surrender the petition schedule building to the landlord within three months from today.
(b). It will also be undertaken through the same affidavit that occupation charges at the existing rent rate will also be paid till the date of surrender.
It is made clear that the revision petitioner will get benefit of time granted as above only if he files affidavit on time and honors the undertakings contained therein.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
A.V.RAMAKRISHNA PILLAI,
JUDGE
dpk
/True copy/ P.A to Judge.
R.C.R. No. 154 /2012 7