{"id":17255,"date":"2009-09-15T00:00:00","date_gmt":"2009-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-s-s-karayogam-no-823-vs-gopalan-nair-on-15-september-2009"},"modified":"2018-09-19T18:48:45","modified_gmt":"2018-09-19T13:18:45","slug":"n-s-s-karayogam-no-823-vs-gopalan-nair-on-15-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-s-s-karayogam-no-823-vs-gopalan-nair-on-15-september-2009","title":{"rendered":"N.S.S.Karayogam No.823 vs Gopalan Nair on 15 September, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
N.S.S.Karayogam No.823 vs Gopalan Nair on 15 September, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 17 of 2009()\n\n\n1. N.S.S.KARAYOGAM NO.823, VAYALAR NORTH\n                      ...  Petitioner\n2. SECRETARY, NARAYANA MENON,\n3. TREASURER  P.N., UNNIKRISHNAN\n\n                        Vs\n\n\n\n1. GOPALAN NAIR , S\/O. ADICHAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.B.PRAMOD\n\n                For Respondent  :SRI.P.R.VENKETESH\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :15\/09\/2009\n\n O R D E R\n         PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.\n                       ------------------------\n                      R.C.R.No. 17 OF 2009\n                       ------------------------\n\n            Dated this the 14th day of September, 2009\n\n\n                               ORDER\n<\/pre>\n
Pius C.Kuriakose, J.\n<\/p>\n<\/p>\n
      The landlord is in revision, being aggrieved by the judgment<\/p>\n
of the Rent Control Appellate Authority, under which the order of<\/p>\n
eviction passed in their favour, on the ground of clause (v) of<\/p>\n
Sub Section (4) of Section 11 (cessation of occupation) for more<\/p>\n
than six months continuously without reasonable cause, was set<\/p>\n
aside.   The building in question was let out as per Ext.A1 to the<\/p>\n
respondent for conduct of chitty business. The allegation in the<\/p>\n
RCP was that since 10 years prior to 2000, the period of<\/p>\n
institution of the RCP, the building was not occupied by the<\/p>\n
tenant without any reasonable cause.      The defence was that the<\/p>\n
allegation of cessation of occupation is false and that the tenant<\/p>\n
is continuing to occupy the building in question for conducting<\/p>\n
chitty business.    Ext.C1 commission report submitted by the<\/p>\n
Advocate commissioner appointed by the Rent Control Court and<\/p>\n
Ext.A3 commission report submitted by the same commissioner<\/p>\n
RCR.No.17\/2009                   2<\/span><\/p>\n
appointed by the Civil Court in a suit filed by the landlord seeking<\/p>\n
injunction against the tenant from carrying out repairs works in<\/p>\n
the building were the principal items of documentary evidence<\/p>\n
relied on by the landlord.   On behalf of the landlord, its office<\/p>\n
bearer was examined as PW1 and the advocate commissioner,<\/p>\n
who submitted Ext.C1 as well as Ext.A2 was examined as PW2.<\/p>\n
The principal item of documentary evidence on the side of the<\/p>\n
tenant was Ext.B3 notice issued in the year 1997 requesting the<\/p>\n
landlord to carry our repairs and also to facilitate restoration of<\/p>\n
the electricity connection.   Apart from Ext.B3, the tenant also<\/p>\n
relied on Ext.B2 decree by which the suit filed by the tenant’s<\/p>\n
wife against the landlord was dismissed.          The Rent Control<\/p>\n
Court, on evaluating the evidence, came to the conclusion that<\/p>\n
the landlord had succeeded in establishing that the tenant has<\/p>\n
ceased to occupy the building continuously for more than 6<\/p>\n
months without reasonable cause and accordingly, ordered<\/p>\n
eviction under Section 11 (4) (v).\n<\/p>\n
      2.   Reversing the decision of the Rent Control Court, the<\/p>\n
RCR.No.17\/2009                    3<\/span><\/p>\n
Appellate Authority held that the evidence adduced on the side of<\/p>\n
the landlord falls short of holding that the tenant ceased to<\/p>\n
occupy the building continuously during the period of 10 years<\/p>\n
alleged by the landlord.      According to the Appellate Authority,<\/p>\n
the landlord’s allegation of cessation of occupation for 10 years<\/p>\n
stands disproved by Ext.B3 notice and what the Appellate<\/p>\n
Authority describes as the actual carrying out of repairs work in<\/p>\n
the building by the tenant in the year 1997.           The Appellate<\/p>\n
Authority would accept the       tenant’s explanation regarding the<\/p>\n
situation that the electricity supply to the building is disconnected<\/p>\n
and hold that since the tenant is carrying on business during day<\/p>\n
time, the tenant did not find it absolutely necessary to         get<\/p>\n
electricity connection restored.        According to the Appellate<\/p>\n
Authority, the entire burden of proving that the eviction ground<\/p>\n
was established was on the landlord and such burden was not<\/p>\n
discharged by producing Ext.C1 and Ext.A2.          According to the<\/p>\n
Rent Control Appellate Authority, both Ext.C1 and A2 were<\/p>\n
reports based on surprise inspections and since those reports are<\/p>\n
RCR.No.17\/2009                     4<\/span><\/p>\n
to the effect that the premises were found closed, the<\/p>\n
commissioner, who was unable to enter the building, could not<\/p>\n
have     responsibly reported that the building is not under<\/p>\n
occupation.    The Appellate Authority went to the extent of<\/p>\n
holding that the circumstance, that the landlord did not invoke<\/p>\n
the ground of arrears of rent for evicting the tenant despite the<\/p>\n
allegation that payment of rent was defaulted since 1988,      is a<\/p>\n
circumstance militating against the existence of ground under<\/p>\n
Section 11(4) (v).      In the above view of the matter, the<\/p>\n
Appellate Authority set aside the order of the Rent Control Court<\/p>\n
and allowed the RCA, dismissing the Rent Control Petition. It is<\/p>\n
challenging the judgment of the Rent Control Appellate Authority<\/p>\n
that the present revision is filed raising various grounds.<\/p>\n
      3. We have heard the submissions of Sri.B.Pramod, learned<\/p>\n
counsel   for  the   revision    petitioners   and also   those  of<\/p>\n
Sri.P.C.Chacko, learned counsel for the respondent.<\/p>\n
      4. Sri.Pramod would take us through the entire evidence<\/p>\n
adduced in the case by the parties, particularly the evidence of<\/p>\n
RCR.No.17\/2009                    5<\/span><\/p>\n
CPW1 the tenant. According to him, there was no warrant at all<\/p>\n
for interfering with the eviction order passed by the Rent Control<\/p>\n
Court by the Appellate Authority and the Appellate Authority set<\/p>\n
aside that order adopting an unsound reasoning.     The burden of<\/p>\n
proof was wrongly cast by the Appellate Authority. According to<\/p>\n
the learned counsel, the landlord had only the initial burden,<\/p>\n
which stood discharged adequately once Ext.C1 report was<\/p>\n
submitted by the Commissioner. In the teeth of Ext.C1, the onus<\/p>\n
shifted to the tenant to prove that he has been occupying the<\/p>\n
building during the period of six months prior to the institution of<\/p>\n
the RCP for the purpose of conducting    chitty business.<\/p>\n
      5. Resisting all the submissions of Sri.Pramod, the learned<\/p>\n
counsel for the respondent\/tenant Sri.P.C.Chacko would support<\/p>\n
the judgment of the Appellate Authority on the various reasons<\/p>\n
stated therein. Ext.C1 as well as Ext.A2 were on the basis of<\/p>\n
surprise inspections conducted by the advocate commissioner<\/p>\n
without notice to the tenant. Those reports at best only show<\/p>\n
that the building in question     remained closed at the time of<\/p>\n
RCR.No.17\/2009                    6<\/span><\/p>\n
inspections. The landlord’s allegation was that the building was<\/p>\n
not occupied by the tenant for the period of 10 years from 1990<\/p>\n
and having raised such an allegation, it was for the landlord to<\/p>\n
adduce evidence and substantiate the same. Referring to Ext.B3<\/p>\n
notice, Sri.Chacko submitted that a tenant, who was ceased to<\/p>\n
occupy the premises, will never cause such a notice to the<\/p>\n
landlord. It is not as though the tenant did not take any steps for<\/p>\n
restoration of the electricity connection in the building. Demand<\/p>\n
was made to the landlord in that regard. It is the landlord, who<\/p>\n
failed to accede to the request, and such a landlord should not<\/p>\n
be allowed to take advantage of his own failure. Reminding us<\/p>\n
of the contours of this court’s jurisdiction under Section 20,<\/p>\n
Sri.Chacko submitted that the judgment of the Appellate<\/p>\n
Authority, which is the final court on facts under the statutory<\/p>\n
scheme, cannot be said to be vitiated to the extent of justifying<\/p>\n
invocation of the revisional jurisdiction of this court.<\/p>\n
      6. We have very anxiously considered the rival submissions<\/p>\n
addressed at the Bar in the light of the relevant statutory<\/p>\n
RCR.No.17\/2009                   7<\/span><\/p>\n
provisions. We have kept in mind judicial precedents governing<\/p>\n
the legal and factual situation. It is trite that occupation, in the<\/p>\n
context of Section 11 (4) (v) with reference to a building let out<\/p>\n
for commercial purpose, means occupation by conducting trade<\/p>\n
or business to conduct which the building was let out to the<\/p>\n
tenant.   Ext.A1 is admittedly the governing lease deed. On the<\/p>\n
terms of Ext.A1, the building was let out to the respondent\/<\/p>\n
tenant for the purpose of conducting chitty business. CPW1 also<\/p>\n
had admitted that the purpose of the lease was          conduct of<\/p>\n
chitty business. Admittedly the chitty, which was conducted last<\/p>\n
by the respondent, terminated some two years prior to the filing<\/p>\n
of the Rent Control Petition.     The case of the tenant       seen<\/p>\n
accepted by the Appellate Authority is that after the last chitty is<\/p>\n
terminated, the business will continue since the amounts due<\/p>\n
from prized\/auctioned chittals are to be         recovered by the<\/p>\n
foreman.    If, as a matter of fact, the business of recovering the<\/p>\n
amounts due from the subscribers is being carried on by the<\/p>\n
respondent in the petition schedule building, the respondent<\/p>\n
RCR.No.17\/2009                   8<\/span><\/p>\n
should have documents at his disposal to prove the same. We<\/p>\n
do not find even a scintilla of documentary evidence adduced<\/p>\n
by the respondent for proving that he is carrying on the business<\/p>\n
of recovering the dues from his customers.        In fact, the only<\/p>\n
item of documentary evidence adduced by the tenant to<\/p>\n
substantiate his contention that he has in occupation of the<\/p>\n
building is    Ext.B5 series, which are receipts issued by the<\/p>\n
landlord in the year 1990 (10 years prior to the filing of the RCP)<\/p>\n
against the payment of two months rent by the tenant. In other<\/p>\n
words, it is clear from Ext.B5 series that the practice obtaining<\/p>\n
between the parties was that whenever rent is paid, the receipt<\/p>\n
will be duly issued. It was submitted by Sri.Pramod that despite<\/p>\n
the averment in the RCP itself was that the rent is in arrears from<\/p>\n
1998, the landlord did not invoke Section 11 (2) (b) as a eviction<\/p>\n
ground only because the quantum of arrears was not much and<\/p>\n
the landlord was more enthusiastic in getting the building back.<\/p>\n
According to us, the allegation of the landlord that the tenant has<\/p>\n
been a chronic defaulter in the matter of payment of rent stands<\/p>\n
RCR.No.17\/2009                  9<\/span><\/p>\n
proved in this case.\n<\/p>\n
     7. The electricity supply to the petition schedule building,<\/p>\n
which at the time of letting was an electrified one,         stood<\/p>\n
disconnected obviously due to the reason of non payment of<\/p>\n
power charges prior to the institution of the RCP i.e. at any rate<\/p>\n
prior to Ext.B3 issued in the year 1993. We are not at all<\/p>\n
impressed by the explanation offered by the tenant before us<\/p>\n
through his learned counsel that since       the chitty business is<\/p>\n
being conducted only during the day time, the tenant could very<\/p>\n
well continue to do the business even without electricity.      The<\/p>\n
circumstance that serious steps were not successfully pursued by<\/p>\n
the tenant for restoration of the electricity supply in the building<\/p>\n
is a circumstance, which gives credence to the landlord’s case<\/p>\n
that the tenant has not done any business in the petition<\/p>\n
schedule building during the statutory period.        So also, the<\/p>\n
circumstance that the tenant kept the rent in arrears heavily is<\/p>\n
a circumstance supporting the landlord’s case that the tenant<\/p>\n
was not utilising the building for the purpose of        conduct of<\/p>\n
RCR.No.17\/2009                 10<\/span><\/p>\n
business.   It is true that both Exhibits (Ext.C1 & A2) were<\/p>\n
reports submitted by the advocate commissioner on the basis of<\/p>\n
the surprise inspections and the inside portion of the room was<\/p>\n
not actually inspected by the commissioner. But, the inferences<\/p>\n
drawn by the commissioner are based on what was noticed by<\/p>\n
him on inspecting the building and precincts from the outside.<\/p>\n
The commissioner reported that the front door of the building<\/p>\n
remained closed.     The hinges of the windows and even the<\/p>\n
odambal of the front door was rusty and that there were<\/p>\n
cobwebs on the odambal of the front door.    Heaps of dust were<\/p>\n
found on the front open veranda of the building and that on the<\/p>\n
back yard of the building grass had grown up to the height of<\/p>\n
half a feet.   If it were the tenant’s case that on inspection of<\/p>\n
the inside of the building signs of actual occupation during the<\/p>\n
statutory period would have been noticed, nothing prevented the<\/p>\n
tenant from seeking appropriate directions from the Rent Control<\/p>\n
Court to the very same Commissioner to conduct such an<\/p>\n
inspection.   The commission reports, according to us, offer<\/p>\n
RCR.No.17\/2009                   11<\/span><\/p>\n
atleast primafacie evidence in support of the landlord’s case that<\/p>\n
the building is not under occupation.    The circumstance that no<\/p>\n
documentary evidence was produced by the tenant to show that<\/p>\n
the building is used for conduct of chitty business and that the<\/p>\n
tenant did not take any serious steps for restoring the electricity<\/p>\n
connection and the further circumstance that the rent was kept<\/p>\n
in arrears for years together, were all circumstances supporting<\/p>\n
the conclusion of the Rent Control Court that the statutory<\/p>\n
eviction ground under Section 11 (4) (v) is established.        The<\/p>\n
appreciation of the evidence by the Rent Control Appellate<\/p>\n
Authority, in our opinion, was not proper. Though it is true that<\/p>\n
the initial burden of proof is on the landlord, in the present case,<\/p>\n
where both sides were adduced evidence, the onus has certainly<\/p>\n
shifted to the tenant to prove that the building is under user for<\/p>\n
conduct of chitty business and such onus has not been discharged<\/p>\n
by the tenant by adducing the best evidence.        Interference by<\/p>\n
the Rent Control     Appellate Authority with the decision of the<\/p>\n
Rent Control Court was quite unwarranted.\n<\/p>\n
RCR.No.17\/2009                  12<\/span><\/p>\n
      8. The result of the above discussion is that we allow this<\/p>\n
revision, setting aside the judgment of the Rent Control Appellate<\/p>\n
Authority and restoring the order passed by the Rent Control<\/p>\n
Court.   Eviction is ordered against the respondent under Section<\/p>\n
11 (4) (v). In the nature of the ground, on which eviction is<\/p>\n
ordered, we would not have normally become inclined to grant<\/p>\n
time to the respondent to vacate the premises. However, taking<\/p>\n
into account the very appealing submission of Sri.Chacko that<\/p>\n
substantial amounts are due to the respondent from his<\/p>\n
customers and that abrupt eviction will result in a situation<\/p>\n
compelling the respondent to write off these amounts, we are<\/p>\n
inclined to grant time till 31\/3\/2010 from today, even as we<\/p>\n
pass the order of eviction. Revision petition is allowed and the<\/p>\n
order of eviction is passed under Section 11 (4) (v).         The<\/p>\n
respondent is granted time upto 31\/3\/2010 from today to vacate<\/p>\n
the premises subject to the following conditions;<\/p>\n
           i). The entire arrears of rent due in respect<\/p>\n
           of the petition schedule building from<\/p>\n
RCR.No.17\/2009                 13<\/span><\/p>\n
          1\/1\/1990 less any amount paid by the<\/p>\n
          respondent against the receipts together<\/p>\n
          with interest at the rate of 6% p.a. from<\/p>\n
          dates of default      shall be paid by the<\/p>\n
          respondent to the revision petitioner within<\/p>\n
          six weeks from today.\n<\/p><\/blockquote>\n
                ii).   The respondent shall file an<\/p>\n
          affidavit before the Execution Court or the<\/p>\n
          Rent Control Court, as the case may be<\/p>\n
          within three weeks from today undertaking<\/p>\n
          to give peaceful surrender of the petition<\/p>\n
          schedule building to the revision petitioner<\/p>\n
          on or before 31\/3\/2010.            It will be<\/p>\n
          undertaken    through    the   affidavit  that<\/p>\n
          occupational charges at the current rent rate<\/p>\n
          will also be paid as and when the same falls<\/p>\n
          due for the period upto 31\/3\/2010.<\/p><\/blockquote>\n
          It is made clear that the respondent will be eligible for<\/p>\n
RCR.No.17\/2009                 14<\/span><\/p>\n
the benefit of time granted     under this judgment only if he<\/p>\n
complies with the above directions.\n<\/p>\n<\/p>\n
                                PIUS C.KURIAKOSE,JUDGE<\/p>\n
                                K.SURENDRA MOHAN, JUDGE
\ndpk<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court N.S.S.Karayogam No.823 vs Gopalan Nair on 15 September, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-17255","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nN.S.S.Karayogam No.823 vs Gopalan Nair on 15 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-s-s-karayogam-no-823-vs-gopalan-nair-on-15-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.S.S.Karayogam No.823 vs Gopalan Nair on 15 September, 2009 - 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