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Kerala High Court
Valiyaparambil V.P.Gopalan vs Kalliani on 3 August, 2010
       

  

  

 
 
  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.
                    ----------------------------------

                      R.C.R. No.40 of 2003

                   ----------------------------------

               Dated this the 3rd day of August, 2010


                             O R D E R

—————-

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

RCR.40/03 2

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

RCR.40/03 4

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

RCR.40/03 8

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


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