The importance of proving substantial and permanent impairment under S.11(4)(ii) of the Act and considering the landlord's bona fides.

1. A landlord, in his eagerness to get an order of eviction, spread the net so wide as to have a catch atleast on one of the many grounds set up. Though he failed in the Rent Control Court and Appellate Authority he succeeded in revision before the District Court where the ground urged by him under S.11(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short'the Act') was upheld. The aggrieved tenant has filed this Original Petition under Art.227 of the Constitution. Original

2. The building involved herein is a shop room which the tenant took on rent in 1938 from its previous owner (one Sri. S.M. Ismail Saheb). The present landlord purchased the ownership of this building in 1964. The tenant has another room in his possession which is situated adjacent to the tenanted premises. The next room on the eastern side is in the possession of the land lord himself. There were earlier litigations between the landlord and the tenant. The present litigation started in 1978. Among the several grounds which the landlord took up in the petition filed before the Rent Control Court, the one that survives for consideration is that the tenant used the building in such a way as to cause its value and utility reduced materially and permanently.

3.The facts in support of the said ground, alleged by the landlord, are these: The tenant provided a door on the eastern wall of the tenanted room so that a passage was created from the said room to the eastern room (which belongs to the wife of the tenant) which is in the occupation of the tenant. Further, he put up a common veranda on the western side of both the said rooms and painted the veranda in one colour so

that both rooms now appear to be belonging to the same person. The tenant admitted the existence of the door and the veranda, but contended that they were in existence even when he took the room on rent from the previous owner Sri. S. M. Ismail Saheb. The Rent Control Court and Appellate Authority found that those constructions were in existence atleast before the present landlord purchased the ownership of the tenanted room. The two fact finding courts held that construction of those two items did not amount to impairment of value or utility of the building. The aforesaid conclusion was based on the principle laid down in Ahammad Kanna v. Muhammed Haneef (1966 K.L.J. 941:1967 K.L.T. 841). On facts the said two courts did not follow the ratio in Ayissabeevi v. Aboobaker (1971 KLT. 273). But the District Court took the view that the first two courts had not correctly understood its reasoning in Ayissabeevi's case. Hence the District Judge found that the conclusion reached by the two courts below was "incorrect, unjust and contrary to the position of law enunciated by our High Court in the ruling referred above". Referring to the observation of the Appellate Authority that the passage on the eastern wall of the room could be closed at any time and building could easily be restored to its original condition, learned District Judge remarked that the matter should have been looked at differently since the question to be considered is "whether any alteration has been made to the building so as to obliterate the boundaries and thereby affecting the identity of the property." After considering the above question, learned District Judge set aside the concurrent finding and passed the order of eviction on the ground under S.11(4)(ii) of the Act.

4. Learned counsel for the petitioner-tenant contended that the District Judge over-reached his jurisdictional limitations and that the order for eviction was passed without even adverting to the main limbs of the ground envisaged in S.11 (4)(ii) of the Act and also without considering the further question of bona fides of the landlord in taking up the ground since he purchased the property with the full knowledge that those constructions were in existence even then. His contention, in other words, is that no court, much less the revis