IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 RCRev..No. 40 of 2003() ----------------------- RCA.98/2000 of ADDL. DISTRICT COURT-II, KOZHIKODE RCP.68/1999 of MUNSIFF COURT, QUILANDY .................... REVN.PETITIONER/RESPONDENT/RESPONDENT (S): -------------------- VALIYAPARAMBIL V.P.GOPALAN, S/O.CHEKKOTTI, AGED 59, THRIKKOTTUR AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY SMT.S.LAKSHMY SRI.C.JAYACHANDRAN RESPONDENT(S)/RESPONDENT/APPELLANTS/PETITIONERS --------------- 1. KALLIANI, KOORANTEVIDE, W/O. LATE KANARAN, AGED 71, “SOUPARNIKA”, THRIKKOTTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. DAUGHTER SARADHA, KOORANTEVIDE, D/O.LATE KANARAN, AGED 50, PUTHUKKUDI HOUSE, AYANIKKAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. DR.RAJAN, KOORANTEVIDE, S/O. LATE KANARAN, AGED 56, “SOUPARNIKA”, THRIKKOTTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 4. SATHYANATHAN,KOORANTEVIDE,S/O.LATE KANARAN,AGED 42, -DO-. 5. RAMACHANDRAN,KOORANTEVIDE,S/O.LATE KANARAN,AGED 35, -DO-. 6. AMBUJAM KOORANTEVIDE, AGED 40, 64-SWAMIREDDI STREET, EGMORE, CHENNAI, TAMIL NADU. ADV. SRI.C.P.MOHAMMED NIAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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