IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 17 of 2009()
1. N.S.S.KARAYOGAM NO.823, VAYALAR NORTH
... Petitioner
2. SECRETARY, NARAYANA MENON,
3. TREASURER P.N., UNNIKRISHNAN
Vs
1. GOPALAN NAIR , S/O. ADICHAN,
... Respondent
For Petitioner :SRI.B.PRAMOD
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :15/09/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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R.C.R.No. 17 OF 2009
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Dated this the 14th day of September, 2009
ORDER
Pius C.Kuriakose, J.
The landlord is in revision, being aggrieved by the judgment
of the Rent Control Appellate Authority, under which the order of
eviction passed in their favour, on the ground of clause (v) of
Sub Section (4) of Section 11 (cessation of occupation) for more
than six months continuously without reasonable cause, was set
aside. The building in question was let out as per Ext.A1 to the
respondent for conduct of chitty business. The allegation in the
RCP was that since 10 years prior to 2000, the period of
institution of the RCP, the building was not occupied by the
tenant without any reasonable cause. The defence was that the
allegation of cessation of occupation is false and that the tenant
is continuing to occupy the building in question for conducting
chitty business. Ext.C1 commission report submitted by the
Advocate commissioner appointed by the Rent Control Court and
Ext.A3 commission report submitted by the same commissioner
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appointed by the Civil Court in a suit filed by the landlord seeking
injunction against the tenant from carrying out repairs works in
the building were the principal items of documentary evidence
relied on by the landlord. On behalf of the landlord, its office
bearer was examined as PW1 and the advocate commissioner,
who submitted Ext.C1 as well as Ext.A2 was examined as PW2.
The principal item of documentary evidence on the side of the
tenant was Ext.B3 notice issued in the year 1997 requesting the
landlord to carry our repairs and also to facilitate restoration of
the electricity connection. Apart from Ext.B3, the tenant also
relied on Ext.B2 decree by which the suit filed by the tenant’s
wife against the landlord was dismissed. The Rent Control
Court, on evaluating the evidence, came to the conclusion that
the landlord had succeeded in establishing that the tenant has
ceased to occupy the building continuously for more than 6
months without reasonable cause and accordingly, ordered
eviction under Section 11 (4) (v).
2. Reversing the decision of the Rent Control Court, the
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Appellate Authority held that the evidence adduced on the side of
the landlord falls short of holding that the tenant ceased to
occupy the building continuously during the period of 10 years
alleged by the landlord. According to the Appellate Authority,
the landlord’s allegation of cessation of occupation for 10 years
stands disproved by Ext.B3 notice and what the Appellate
Authority describes as the actual carrying out of repairs work in
the building by the tenant in the year 1997. The Appellate
Authority would accept the tenant’s explanation regarding the
situation that the electricity supply to the building is disconnected
and hold that since the tenant is carrying on business during day
time, the tenant did not find it absolutely necessary to get
electricity connection restored. According to the Appellate
Authority, the entire burden of proving that the eviction ground
was established was on the landlord and such burden was not
discharged by producing Ext.C1 and Ext.A2. According to the
Rent Control Appellate Authority, both Ext.C1 and A2 were
reports based on surprise inspections and since those reports are
RCR.No.17/2009 4
to the effect that the premises were found closed, the
commissioner, who was unable to enter the building, could not
have responsibly reported that the building is not under
occupation. The Appellate Authority went to the extent of
holding that the circumstance, that the landlord did not invoke
the ground of arrears of rent for evicting the tenant despite the
allegation that payment of rent was defaulted since 1988, is a
circumstance militating against the existence of ground under
Section 11(4) (v). In the above view of the matter, the
Appellate Authority set aside the order of the Rent Control Court
and allowed the RCA, dismissing the Rent Control Petition. It is
challenging the judgment of the Rent Control Appellate Authority
that the present revision is filed raising various grounds.
3. We have heard the submissions of Sri.B.Pramod, learned
counsel for the revision petitioners and also those of
Sri.P.C.Chacko, learned counsel for the respondent.
4. Sri.Pramod would take us through the entire evidence
adduced in the case by the parties, particularly the evidence of
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CPW1 the tenant. According to him, there was no warrant at all
for interfering with the eviction order passed by the Rent Control
Court by the Appellate Authority and the Appellate Authority set
aside that order adopting an unsound reasoning. The burden of
proof was wrongly cast by the Appellate Authority. According to
the learned counsel, the landlord had only the initial burden,
which stood discharged adequately once Ext.C1 report was
submitted by the Commissioner. In the teeth of Ext.C1, the onus
shifted to the tenant to prove that he has been occupying the
building during the period of six months prior to the institution of
the RCP for the purpose of conducting chitty business.
5. Resisting all the submissions of Sri.Pramod, the learned
counsel for the respondent/tenant Sri.P.C.Chacko would support
the judgment of the Appellate Authority on the various reasons
stated therein. Ext.C1 as well as Ext.A2 were on the basis of
surprise inspections conducted by the advocate commissioner
without notice to the tenant. Those reports at best only show
that the building in question remained closed at the time of
RCR.No.17/2009 6
inspections. The landlord’s allegation was that the building was
not occupied by the tenant for the period of 10 years from 1990
and having raised such an allegation, it was for the landlord to
adduce evidence and substantiate the same. Referring to Ext.B3
notice, Sri.Chacko submitted that a tenant, who was ceased to
occupy the premises, will never cause such a notice to the
landlord. It is not as though the tenant did not take any steps for
restoration of the electricity connection in the building. Demand
was made to the landlord in that regard. It is the landlord, who
failed to accede to the request, and such a landlord should not
be allowed to take advantage of his own failure. Reminding us
of the contours of this court’s jurisdiction under Section 20,
Sri.Chacko submitted that the judgment of the Appellate
Authority, which is the final court on facts under the statutory
scheme, cannot be said to be vitiated to the extent of justifying
invocation of the revisional jurisdiction of this court.
6. We have very anxiously considered the rival submissions
addressed at the Bar in the light of the relevant statutory
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provisions. We have kept in mind judicial precedents governing
the legal and factual situation. It is trite that occupation, in the
context of Section 11 (4) (v) with reference to a building let out
for commercial purpose, means occupation by conducting trade
or business to conduct which the building was let out to the
tenant. Ext.A1 is admittedly the governing lease deed. On the
terms of Ext.A1, the building was let out to the respondent/
tenant for the purpose of conducting chitty business. CPW1 also
had admitted that the purpose of the lease was conduct of
chitty business. Admittedly the chitty, which was conducted last
by the respondent, terminated some two years prior to the filing
of the Rent Control Petition. The case of the tenant seen
accepted by the Appellate Authority is that after the last chitty is
terminated, the business will continue since the amounts due
from prized/auctioned chittals are to be recovered by the
foreman. If, as a matter of fact, the business of recovering the
amounts due from the subscribers is being carried on by the
respondent in the petition schedule building, the respondent
RCR.No.17/2009 8
should have documents at his disposal to prove the same. We
do not find even a scintilla of documentary evidence adduced
by the respondent for proving that he is carrying on the business
of recovering the dues from his customers. In fact, the only
item of documentary evidence adduced by the tenant to
substantiate his contention that he has in occupation of the
building is Ext.B5 series, which are receipts issued by the
landlord in the year 1990 (10 years prior to the filing of the RCP)
against the payment of two months rent by the tenant. In other
words, it is clear from Ext.B5 series that the practice obtaining
between the parties was that whenever rent is paid, the receipt
will be duly issued. It was submitted by Sri.Pramod that despite
the averment in the RCP itself was that the rent is in arrears from
1998, the landlord did not invoke Section 11 (2) (b) as a eviction
ground only because the quantum of arrears was not much and
the landlord was more enthusiastic in getting the building back.
According to us, the allegation of the landlord that the tenant has
been a chronic defaulter in the matter of payment of rent stands
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proved in this case.
7. The electricity supply to the petition schedule building,
which at the time of letting was an electrified one, stood
disconnected obviously due to the reason of non payment of
power charges prior to the institution of the RCP i.e. at any rate
prior to Ext.B3 issued in the year 1993. We are not at all
impressed by the explanation offered by the tenant before us
through his learned counsel that since the chitty business is
being conducted only during the day time, the tenant could very
well continue to do the business even without electricity. The
circumstance that serious steps were not successfully pursued by
the tenant for restoration of the electricity supply in the building
is a circumstance, which gives credence to the landlord’s case
that the tenant has not done any business in the petition
schedule building during the statutory period. So also, the
circumstance that the tenant kept the rent in arrears heavily is
a circumstance supporting the landlord’s case that the tenant
was not utilising the building for the purpose of conduct of
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business. It is true that both Exhibits (Ext.C1 & A2) were
reports submitted by the advocate commissioner on the basis of
the surprise inspections and the inside portion of the room was
not actually inspected by the commissioner. But, the inferences
drawn by the commissioner are based on what was noticed by
him on inspecting the building and precincts from the outside.
The commissioner reported that the front door of the building
remained closed. The hinges of the windows and even the
odambal of the front door was rusty and that there were
cobwebs on the odambal of the front door. Heaps of dust were
found on the front open veranda of the building and that on the
back yard of the building grass had grown up to the height of
half a feet. If it were the tenant’s case that on inspection of
the inside of the building signs of actual occupation during the
statutory period would have been noticed, nothing prevented the
tenant from seeking appropriate directions from the Rent Control
Court to the very same Commissioner to conduct such an
inspection. The commission reports, according to us, offer
RCR.No.17/2009 11
atleast primafacie evidence in support of the landlord’s case that
the building is not under occupation. The circumstance that no
documentary evidence was produced by the tenant to show that
the building is used for conduct of chitty business and that the
tenant did not take any serious steps for restoring the electricity
connection and the further circumstance that the rent was kept
in arrears for years together, were all circumstances supporting
the conclusion of the Rent Control Court that the statutory
eviction ground under Section 11 (4) (v) is established. The
appreciation of the evidence by the Rent Control Appellate
Authority, in our opinion, was not proper. Though it is true that
the initial burden of proof is on the landlord, in the present case,
where both sides were adduced evidence, the onus has certainly
shifted to the tenant to prove that the building is under user for
conduct of chitty business and such onus has not been discharged
by the tenant by adducing the best evidence. Interference by
the Rent Control Appellate Authority with the decision of the
Rent Control Court was quite unwarranted.
RCR.No.17/2009 12
8. The result of the above discussion is that we allow this
revision, setting aside the judgment of the Rent Control Appellate
Authority and restoring the order passed by the Rent Control
Court. Eviction is ordered against the respondent under Section
11 (4) (v). In the nature of the ground, on which eviction is
ordered, we would not have normally become inclined to grant
time to the respondent to vacate the premises. However, taking
into account the very appealing submission of Sri.Chacko that
substantial amounts are due to the respondent from his
customers and that abrupt eviction will result in a situation
compelling the respondent to write off these amounts, we are
inclined to grant time till 31/3/2010 from today, even as we
pass the order of eviction. Revision petition is allowed and the
order of eviction is passed under Section 11 (4) (v). The
respondent is granted time upto 31/3/2010 from today to vacate
the premises subject to the following conditions;
i). The entire arrears of rent due in respect
of the petition schedule building from
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1/1/1990 less any amount paid by the
respondent against the receipts together
with interest at the rate of 6% p.a. from
dates of default shall be paid by the
respondent to the revision petitioner within
six weeks from today.
ii). The respondent shall file an
affidavit before the Execution Court or the
Rent Control Court, as the case may be
within three weeks from today undertaking
to give peaceful surrender of the petition
schedule building to the revision petitioner
on or before 31/3/2010. It will be
undertaken through the affidavit that
occupational charges at the current rent rate
will also be paid as and when the same falls
due for the period upto 31/3/2010.
It is made clear that the respondent will be eligible for
RCR.No.17/2009 14
the benefit of time granted under this judgment only if he
complies with the above directions.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
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