IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 40 of 2003()
1. VALIYAPARAMBIL V.P.GOPALAN
... Petitioner
Vs
1. KALLIANI
... Respondent
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.C.P.MOHAMMED NIAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :03/08/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. No.40 of 2003
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Dated this the 3rd day of August, 2010
O R D E R
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Abdul Rehim, J.
Tenant of the petition schedule building, who is the
1st respondent in RCP.No.68/99 on the files of the Rent Control
Court, Koyilandy is the revision petitioner. Eviction was sought
under Section 11(2)(b) and 11(4)(v) of the Kerala Buildings
(Lease and Rent Control) Act, 1965 (for short the Act). The Rent
Control Court disallowed eviction on both grounds. In appeal
the findings with respect to claim under Section 11(4)(v) was
reversed and eviction was ordered. Since the landlords have
failed to cause statutory notice with respect to eviction sought
under Section 11(2)(b), both court disallowed eviction on that
grounds, concurrently. There is no revision filed by the
landlords in that respect. Hence in this revision we are
concerned only with the order of eviction passed under Section
11(4)(v).
2. The petition schedule building includes two rooms;
one in the ground floor and the other in the first floor. The
tenant was doing business of renting out sound systems under
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the name and style “Udaya Sounds” in the ground floor, and was
running a chit fund called ‘Jupiter Trading Company’ in the first
floor. Allegation was that the tenant had stopped both the
businesses and that he had ceased to occupy the petition
schedule room for the last ten years, without any reasonable
cause. The Rent Control Petition was resisted contending that,
the tenant is doing business in renting out cycles, tables, chairs,
etc. in the room in the ground floor. The first floor was being
used as office of the chitty company, and afterwards as office of
his business in lorry service. At present the first floor is being
used as godown wherein old tables, broken chairs etc. are kept.
According to the tenant both the buildings are being occupied
and the allegation of cessation was emphatically denied.
3. Evidence in this case consisted of oral testimony of
PW1 (the third petitioner in the RCP ) and PW2 Advocate
Commissioner through whom Ext.C1 report was marked, on the
side of the landlords. From the side of the tenants RWs 1 to 5
were examined and Exts.B1 to B10 were marked. On
appreciation of the entire evidence on record, the Rent Control
Court found that the landlords have not succeeded in proving
that the tenant had ceased to occupy the schedule building since
the last more than six months. Hence the petition was
dismissed.
RCR.40/03 3
4. In an appeal filed by the landlords, the Appellate
Authority reversed the findings on the basis of a re-appreciation
of the evidence on record. The Appellate Authority had heavily
relied on Ext.C1 commission report and on the oral testimony of
PW2, the Advocate Commissioner. The commissioner had
reported that the room was seen closed and a heap of rubbish
was noticed on the veranda. It is reported that the veranda was
seen covered with soil and dust and there was dust collected on
the keyhole and in between the wooden planks of the door. It is
further reported that the rafters and tiles of the roof of the
veranda were found to be dirty with cob-webs. Further, in
Ext.C1 report it is stated that the neighbouring shop owners had
informed that the scheduled rooms are remaining closed since
the last five years. The commissioner had also noted that six
cycles were seen parked on the veranda of the room in the
ground floor.
5. From the side of the tenant there is evidence adduced
to prove that on the date of inspection he was not keeping well
and was undergoing treatment. Ext.B1 medical certificate was
proved through examination of PW2 Doctor, who is none other
than the Assistant Professor of the Medical College Hospital,
Calicut. Exts.B2 and B3 are the medical prescriptions. In order
to prove the aspect of physical occupation and conduct of
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business, the tenant had produced Ext.B4 series Books of
Accounts relating to hiring of cycles, Ext.B5 series receipts
evidencing payment of vehicle tax to the Panchayat for the year
1984-85, Ext.B6 series cash books relating to the business of
hiring of furniture and utensils etc: But the Appellate Authority
without any appreciation of the documentary or oral evidence
from the side of the tenant, observed that there is no evidence to
show that the room is being opened and kept neat and tidy, to
indicate the day to day occupation. It is also found that oral
testimony of RW3 and RW4, neighbouring shop owners,
regarding occupation of the scheduled rooms and conduct of
business by the tenant therefrom cannot be relied on, as they
are interested versions. It is further found that even assuming
that the tenant is doing hiring of cycles by engaging employees,
such business is being carried out only from the veranda of the
schedule room in the ground floor and that the premises is not
being actually occupied by the tenant. On the basis of findings
as stated above, the Appellate Authority concluded that the
tenant had ceased to occupy the building and ordered eviction
under Section 11(4)(v).
6. Sri. C.Jayachandran, learned counsel for the revision
petitioner addressed vehement arguments assailing the
impugned judgment of the Appellate Authority. It was
RCR.40/03 5
contended that discharge of the initial burden of proof on the
side of the landlords brought in through the commission report
was successfully rebutted by the tenant by offering proper
explanations for the shop being remained closed on the date of
commission inspection. It is contended that there is absolutely
no reason to disbelieve RW2 Doctor and the documents Exts.B1
to B3. It is argued that, once the tenant was successful in
rebutting the prima facie evidence regarding cessation of
occupation, found on the date of the commission inspection, it is
the further burden of the landlords to supplement additional
evidence worthy enough to prove that there was continued
cessation of occupation. But the landlords have totally failed in
adducing any convincing evidence in this regard. It is argued
that with respect to a commercial building the crucial evidence
is regarding conduct of business. From Exts.B4 to B7 it is clear
and evident that there was actual conduct of the business in the
premises. According to the learned counsel there is total non-
appreciation of the evidence in the correct perspective by the
learned Appellate Authority. It is also contended, that the
learned Appellate Authority went highly erred while observing
that even for hiring of cycles from the veranda by engaging
employees, the schedule room is not required and is not
occupied.
RCR.40/03 6
7. Per contra, Sri.C.P.Mohammed Nias, learned counsel
for the landlords argued that evidence from the side of the
tenant is not at all trustworthy and there are a lot of
discrepancies in the documentary evidence. On a proper
appreciation of the oral and documentary evidence it can be
revealed that the contentions of the tenant regarding actual
occupation and conduct of the business in the schedule
premises, is totally false. Learned counsel made an attempt
before this court to elaborate on the discrepancies and
contradictions in the documentary evidence, Exts.B1 to B7. He
also emphasised on the oral testimonies of PW2, the Advocate
Commissioner. According to the learned counsel, if the entire
evidence adduced before the Rent Control Court is re-
appreciated in a proper manner, inference of continued
cessation of occupation by the tenant can easily be arrived.
Hence the eviction ordered under Section 11(4)(v) is to be
sustained by this court, is the contention.
8. In the statutory scheme the Appellate Authority is the
final fact finding court. In our attenuated jurisdiction of
revisional power under Section 20 of the Act, we are not
supposed to venture upon a total re-appreciation of the evidence
on record. On an anxious consideration of the order of the Rent
Control Court as well as judgment of the Appellate Authority we
RCR.40/03 7
are convinced that there is no proper re-appraisal from the side
of the Appellate Authority with respect to the entire evidence
adduced from the side of the tenants. There is absolutely no
discussions in the judgment of the Appellate Authority touching
the documentary evidence adduced from the side of the tenant.
The heavy reliance placed on the evidence based on the
commission report need be weighed on comparison with the
worthiness of the contra evidence adduced by the tenant
through Exts.B1 to B7 and also the oral testimonies of RW2 to
RW5. We notice there is lack of any such comparison of the
evidence. The conclusions arrived at by the Appellate Authority
are not based on a proper appreciation of the contradictory
evidences adduced from both sides. Hence we re of the
considered opinion that the matter need fresh consideration and
disposal at the hands of the Appellate Authority.
9. Mr.Nias submitted that in case of relegating the
matter back to the Appellate Authority, the landlords may be
given chance to adduce further documentary evidence, if found
necessary, to prove actual cessation of occupation. We are
inclined to grant such relief.
10. We take note of the fact that the rate of monthly rent
being paid with respect to the schedule premises is ridiculously
low, when compared with the prevailing rate of rent in the
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locality. It is admitted by both sides that the current rate of rent
was fixed long back. Therefore we are inclined to make a
tentative re-fixation of the monthly rent as Rs.400/-, with effect
from 1.9.2010 onwards. It is made clear that the re-fixation of
rent is made on a purely provisional basis and either parties are
at liberty to approach the Rent Control Court for fixation of fair
rent under Section 5 of the Act.
In the result, the revision petition is allowed and the
judgment of the Appellate Authority is hereby set aside. The
matter is remanded back to the Appellate Authority for fresh
consideration and disposal. It is open to the landlords to adduce
further documentary evidence if found necessary, to prove the
cessation of occupation. Needless to say that the tenant should
be given opportunity to rebut such evidence, if any adduced. The
Appellate Authority shall dispose of the matter as early as
possible. The parties are directed to appear before the
Appellate Authority on 2.9.2010. Registry will transfer all the
records forthwith.
PIUS C.KURIAKOSE, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb
