IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 RCRev..No. 109 of 2010() ------------------------ RCA.105/2002 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.27/2000 of PRL.M.C.,KANNUR .................... REVN.PETITIONER/RESPONDENT/RESPONDENT --------------------------------------------------------- PUTHENVEETTIL KUNHIKANNAN, S/O. KORAN NAIR, AGED 47 YEARS, BUSINESS, RESIDING AT CHEMBILODE AMSOM DESOM. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------- OVINAKATH KURUKANDIYIL SAIBUNNISA, D/O. MARIYAMBEE HAJJUMMA, AGED 40 YEARS, RESIDING AT KANNUR-2 AMSOM, KANNATHUMCHAL DESOM. ADV. SRI.V.PREMCHAND THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 109 OF 2010 ------------------------ Dated this the 18th day of November, 2010 O R D E R Gopinanthan, J. The respondent/tenant in RCP No.27/2000 on the file of the Rent Control Court, Kannur is the revision petitioner. The respondent herein instituted the above petition against the revision petitioner seeking an order for eviction under section 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as the 'Act'). The respondent contended that the petition schedule building, which was let out to the revision petitioner as per Ext.A1 rent deed for a monthly rent of Rs.150/-, was kept closed for more than one year as on the date of the petition. 2. The revision petitioner denied the allegation that the petition schedule building was kept closed for more than one year. He contended that he had been doing business in tyre by sitting in the upstairs of the petition schedule which was on lease to the partner of the revision petitioner and that he RCR.No.109/2010 2 has got only limited business and that the petition schedule building would be opened only for actual sale of tyres and prayed for dismissal of the petition. 3. During the course of the enquiry, the husband of the respondent and the advocate commissioner, who inspected the property and filed Ext.C1 report, were examined as PWs 1 & 2. The revision petitioner and immediate neighbour were examined as RWs 1 & 2. On the side of the respondent only the rent deed was marked as Ext.A1. On the side of the revision petitioner Exts.B1 to B14 and Ext.X1 series were marked. The Rent Controller on appraisal of the evidence, accepted the defence. Keeping reliance to Ext.B1 to B4, the Rent Controller also found that the revision petitioner has been doing business in the petition schedule building and not kept closed. Consequently, the petition was dismissed. 4. Aggrieved by the order dismissing the petition, the respondent preferred RCA No.105/2002 before the appellate authority. The appellate authority by the impugned judgment dated 25/7/2009 allowed the appeal and the revision petitioner was directed to handover possession of the petition schedule building to the respondent under Section 11 (4)(v). The RCR.No.109/2010 3 legality, correctness and propriety of the above judgment is now assailed under Section 20 of the Act. 5. We heard Sri.M.V.Amaresan, learned counsel for the revision petitioner as well as Sri.V.Premchand, learned counsel appearing for the respondent. We were taken through the appellate judgment as well as the evidence on record. Going by the judgment impugned, we find that the appellate authority had given undue consideration to the report of the commissioner and rejected Exts.B1 to B14. While rejecting Exts.B1 to B14, the appellate authority had found that the revision petitioner had been running another shop near KSRTC bus stand and the documents produced by the revision petitioner might be relating to the business run in that building. Scanning the documents, we find that the finding of the appellate authority on that aspect is absolutely incorrect. It is seen that in many of the documents there is mention about both businesses, one run in the petition schedule building and another in the other building which is near the KSRTC bus stand. The petition schedule building is near the municipal bus stand. On perusal of the report of the commissioner, we find that the commissioner had opined that the petition schedule building was kept closed for RCR.No.109/2010 4 more than six months on looking the shutter and lock of the petition schedule building. The commissioner had reported that cob webs were seen on the ceiling of the varanda. Cob webs on the ceiling of the varanda is not an indication that the petition schedule building is remaining closed without doing any business. The respondent had not cared to take steps to inspect the petition schedule building after opening it. Only when the building is opened, it could be said that whether there is actual business or not. The observation of the commissioner referring to the lock and shutter that the building is kept closed for more than six months is not at all convincing. Report of the commissioner lacks reasoning and prudence. At the most the commissioner could state that as on the date of inspection it was closed, probably for a few days or months and not for more than six months. At no stretch of imagination we can accept the report of the commissioner that the building was kept closed for more than six months. Barring the report there is no proof that the building was kept closed for more than six months. From the Bar photographs pertaining to the petition schedule building were produced. Though the petition schedule building is seen closed as per the photographs, there is no sign to come to a RCR.No.109/2010 5 conclusion that the petition schedule building was kept closed for more than one year or six months as on the date of the petition. 6. Going by the judgment impugned and the evidence on the side of the revision petitioner as well as the respondent and going by Exts.B1 to B14, we find that the evidence of the revision petitioner that he had been actually doing business by sitting in the upstairs is convincing. RW2 had given supporting evidence. Exts.B1 to B14 also support. It is pertinent to note that the respondent has no case that the revision petitioner has no office room in the upstairs. In the event the revision petitioner has got an office room in upstairs and he is doing business by sitting in the upstairs, it is not at all necessary to keep the petition schedule room always opened. We also notice that the revision petitioner and his partner had six stage carriage buses. Being fleet operator, he could easily canvass business from other operators. Even in the cross examination it is suggested that the revision petitioner had been doing business of tyre. Even by that suggestion it is evident that the petitioner had been doing some business in the petition schedule building. Exts. B7, B8 & B9, the Day Book, Ledger and Bill Book respectively would show that there is regular business RCR.No.109/2010 6 though at a small rate. Ext.B10 would show that salestax authorities had issued notice of assessment on 29/1/2001 i.e. subsequent to the petition. The evidence on record is not sufficient enough to come to a conclusion that those documents are in respect of the business run in the other building in the possession of the revision petitioner. Ext.B13 would show that a registered letter sent to the revision petitioner in his residential address was redirected to the petition schedule building and it was served up on the revision petitioner. We find that the appellate authority lost right of this evidence which was relied upon by the Rent Controller. 7. In the above circumstances, going by the judgment of the appellate authority as well as the order of the Rent Control Court, we find that the Rent Controller had meticulously analysed the evidence on record and arrived at a finding against the respondent and in favour of the revision petitioner. That finding was interfered in appeal without cogent reason. We notice that the appellate authority had in fact not gone through Exts.B1 to B14. There is no finding by the appellate authority that those documents are pertaining to the other building and not pertaining to the petition schedule building. RCR.No.109/2010 7 Such being the materials on record, we find that the findings of the appellate authority is contrary to the evidence on record and against the ground reality. Hence, the judgment of the appellate authority is not legally and factually sustainable. Therefore, we have no othergo but to set aside the same in exercise of revisional powers. The order dismissing the petition by the Rent Controller requires no interference. 8. Incidentally, we notice that the rent of the petition schedule building is only Rs.150/- per month, which was determined about three decades back. The petition schedule building is close to the municipal bus stand, Kannur. The rent payable is abysmally low. In the above circumstances, it requires provisional refixation subject to the right of the parties to apply for fixation of the fair rent. 9. Having heard either side, we find that a sum of Rs.2,500/- per month would be a just and reasonable provisional fair rent of the petition schedule building. Accordingly, we fix the rent of the petition schedule building at Rs.2,500/- per month with effect from 1/1/2011. In the result, the revision petition is allowed by setting aside the order of the appellate authority. The order of the Rent RCR.No.109/2010 8 Controller is restored with liberty to the respondent to move fresh petition, in case the respondent has got any cause of action for eviction on any other grounds. The rent of the petition schedule building is provisionally fixed at Rs.2,500/- per month with effect from 1/1/2011 subject to fixation of fair rent by the rent control court on appropriate application by either party. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN NAIR dpk