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 19TH JANUARY 2010 / 29TH POUSHA 1931 RCRev..No.25 of 2010 -------------------------- RCA.66/2008 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA RCP.60/2007 of RENT CONTROL COURT/MUNSIFF COURT, VADAKARA .................... REVISION PETITIONER/RESPONDENT/TENANT --------------------------------------------------- MELAKKANDI KUNIYIL SHAKKEER MOHAMMED, S/O.C.K.MAHAMOOD,52 YRS,BUSINESS,R/A."SUMA,KACHERI AMSOM DESOM,KOZHIKODE TALUK,NOW R/A.SUHARA MANZIL, PUTHIYARA,KOZHIKODE,REP.BY P.O.A HOLDER,M.K.RAFEEQ 50 YRS,S/O.C.K.MAHAMOOD,R/A."LORDS",NADAKKAVU CROS ROAD,KACHERI AMSOM DESOM,KOZHIKODE. BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU RESPONDENT(S): RESPONDENT/LANDLORD-PETITIONER ---------------------------------------------------------------- PADINHARE MANAPRATH KANARAN, S/O.BAPPU,AGED 87 YEARS,RESIDING AT KALLARACKAL, PUTHUPPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.25 of 2010 ------------------------------------------------ Dated this the 19th day of January, 2010 ORDER Pius C. Kuriakose, J A tenant who is ordered to be evicted on the ground of bona fide need for own occupation and cessation of occupation concurrently is the revision petitioner. The case of the landlord in the context of his claim under sub Section 3 of Section 11 was that the building is required bona fide for occupation by his son Haridasan who is a Gulf returnee and presently jobless. The case in the context of his claim for cessation of occupation was that the tenant who was previously using the building as a distribution centre for his agency business by name “Gazal Agency” which R. C. R. No.25 of 2010 -2- has his main place of business at Calicut has ceased to occupy the business continuously for more than six months without any reasonable cause. The tenant in his statement of objection very strongly disputed the bona fides of the need. It was contended that the adjacent room belonging to the landlord is in the possession of the landlord himself and that if the need is bona fide, the same can be accomplished by utilising that room. It was also contended that the tenant is entitled to the protection of the second proviso to sub Section 3 of Section 11. Existence of the ground of cessation of occupation was also denied. It was contended that the tenant is using the building not for conduct of sale, but as a godown for his business at Calicut. 2. The Rent Control Court after enquiry came to R. C. R. No.25 of 2010 -3- the conclusion that the need was bona fide and that the RCP is not liable to fail by virtue of either the first proviso to sub Section 3 of Section 11 or the second proviso. It was found on the basis of the evidence which consisted also of the Commissioner's Report and the oral evidence of RW1 which was to the effect that the business which was being conducted in the petition schedule building is that of a distribution centre of Gazal Agency having principal place of business at Calicut and also the circumstance that there was total dearth of evidence regarding the actual business conducted in the petition schedule room that the eviction ground under clause (v) of sub Section (4) of Section 11 was established. Accordingly, order of eviction was passed both under sub Section 3 of Section 11 and under clause (v) of sub Section 4 of R. C. R. No.25 of 2010 -4- Section 11. Though the revision petitioner/tenant filed appeal and the Appellate Authority re-appraised the entire evidence that authority would also concur with all the conclusions of the Rent Control Court and dismiss the appeal. 3. In this revision under sub Section 20, various grounds are raised assailing the judgment of the Appellate Authority. Sri.A.Ranjith Narayanan submitted that PW1/the landlord himself admitted that his son Raveendran is abroad and that he is not actually conducting any cracker business in the adjacent room even though he has taken out a licence from the local authority for that purpose in that building. If the need is bona fide, the landlord could have accommodated Sri.Haridasan in that room which is allegedly let out to Sri.Reveendran. The learned R. C. R. No.25 of 2010 -5- counsel also highlighted certain portions of the landlord's evidence as PW1 wherein the landlord stated that the tenant was very prompt in the matter of payment of rent and that during the period when business was being conducted, there was no default in rent payment and stated further that rent was paid even one month prior to the institution of the RCP. This, according to the learned counsel, amounts to an admission from the side of the landlord that even one month prior to the institution of the RCP, the tenant was conducting business in the petition schedule building. This admission, counsel submitted, would cut at the very root of the case under Section 11(4)(v). The learned counsel also read over to us the testimony of PW2/Haridasan which was also to the effect that the business of his father after he came to have ownership R. C. R. No.25 of 2010 -6- over two rooms, was only to let out rooms and according to the learned counsel the Rent Control Petition is instituted immediately after the tenant refused to oblige the landlord's demand for higher rent. The need is not bona fide, so asserted the learned counsel. 4. We have very anxiously considered the submissions of the learned counsel. We have considered those items of the evidence to which our attention was drawn. We have scanned the order of the Rent Control Court and the judgment of the Appellate Authority. 5. We notice from the judgment of the Appellate Authority and also from the order of the Rent Control Court that the finding that the need is bona fide and that the RCP is not liable to fail by virtue of either of R. C. R. No.25 of 2010 -7- the provisos is based on appreciation of evidence which was actually available on record. We further notice that the finding that the tenant ceased to occupy the building continuously for more than six months without any reasonable cause is again founded on evidence. That being so, it will be very difficult for this Court under Section 20 to come to a different conclusion unless we are able to say that the conclusion arrived at by the final fact finding authorities namely the Appellate Authority is vitiated by illegality, irregularity or impropriety as envisaged under Section 20. Admittedly, the adjacent building pointed out by the tenant is let out to Raveendran, the other son of the landlord by a registered kaicheet, seven years prior to the institution of the RCP. Evidently, Raveendran has a licence from the local R. C. R. No.25 of 2010 -8- authority and is paying profession tax to the local authority regularly for the conduct of business in crackers in that building. Legal possession of that building as per the Registered Rent Kaicheet and also as per the public records like the Licence Issuance Register of the Local Authority is not with the Landlord but is with Raveendran. The first proviso to sub Section 3 of Section 11 is attracted only when the landlord is in possession of the building belonging to him. According to us, the finding of the authorities below concurrently that the first proviso does not suffer from any infirmity. RW1 himself stated in his evidence that the business which is carried on in the petition schedule building is the business of distribution centre for Gazal Agencies who deal in products of Amul. If this is true, there must be R. C. R. No.25 of 2010 -9- documentary evidence and the learned Rent Control Court as well as the Appellate Authority rightly noticed that absolutely no documentary evidence was produced by the tenant to support his claim that the business of Distribution Centre of Amul product was being carried out in the petition schedule building. The Commissioner submitted his report which is to the effect that the premises have not been used for any purpose whatsoever for quite a long period and the Commissioner's evidence was not shaken in cross examination. The tenant did not have a case that cessation of occupation was due to a reasonable cause. Under the circumstances, we are of the view that the finding of the authorities below that the eviction ground under Section 11(4)(v) is made out is also unassailable, at any rate, under this Court's R. C. R. No.25 of 2010 -10- revisional jurisdiction. 6. The result of the above discussion necessarily is that the RCR fails and is dismissed accordingly. But as a last plea Sri.Ranjith Narayanan requested that at least one year's time be granted for surrendering the premises. According to him, considerable sale has been conducted by the petitioner on credit basis and at least to enable the petitioner to recover the amounts due, it is necessary that the business should be allowed to be continued for so much of time. Normally, we wont be inclined to grant time of one year to a tenant who is liable to be evicted under Section 11(4)(v). However, considering the submission of the learned counsel, we feel that time can be granted till 15/08/2010. The RCR is dismissed. The execution court is directed not to order and effect R. C. R. No.25 of 2010 -11- delivery till 15/08/2010 subject to the following conditions:- The revision petitioner shall file an affidavit before the execution court undertaking to surrender the petition schedule building peacefully to the landlord or to his son Haridasan on or before 15/08/2010. It shall also be undertaken through the same affidavit that arrears of rent, if any, shall be paid at the rate of Rs.250/- per mensem promptly till actual surrender is made. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-