IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 RCRev..No. 93 of 2009() ----------------------- RCA.39/2001 of ADDL. DISTRICT COURT, VADAKARA RCP.11/1998 of MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... REVISION PETITIONER/APPELLANT/RESPONDENT: -------------------- THEKKEKOYILANDY VALAPPIL RAMACHANDRAN AGED 48 YEARS, S/O. CHIRIYANDAN, HOUSE NO VI/282, VATAKARA AMSOM DESOM, VATAKARA TALUK. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): RESPONDENT/PETITIONER --------------- E.P. MOIDEEN, AGED 43 YEARS, S/O. MAMMU, WHITE HOUSE, THRIKOTTOOR AMSOM, PALOOR DESOM, KOYILANDY TALUK, NOW AT DOHA QATAR BY POWER OF ATTORNEY HOLDER PANTHIVAYALIL KHADERKUTTY, AGED 67 YEARS, S/O. MAMMAD, VANMUKAM AMSOM, KATALOOR DESOM KOYILANDY TALUK THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.93 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2009 ORDER P.Q.Barkath Ali, J. In this revision by the tenant arising out of a petition for eviction under Section 11(4) (v) of the Rent Control Act, the only point which arises for determination is whether the Rent Control Court and Appellate Authority were justified in upholding the plea of the landlord that the tenant ceased to occupy the building continuously for more than six months without any reasonable cause. 2. The case of the landlord/respondent as shaped in evidence before the Rent Control Court was that the revision petitioner/tenant has ceased to occupy the building continuously for more than one year immediately prior to the filing of the rent control petition without any reasonable cause and that therefore he is entitled for eviction under Section 11(4)(v) of the Rent Control Act. 3. The revision petitioner/tenant contended that it is not true that he has ceased to occupy the building, that he was under the RCR.No.93/09 2 treatment of Dr.Joseph for two weeks from 22/03/1998 and was not able to conduct his business during the said period and that he had never ceased to occupy the building. 4. PWs 1 and 2 were examined and Exts.A1 to A3 were marked on the side of the landlord/revision respondent before the Rent Control Court. On the side of the revision petitioner/tenant RWs 1 to 3 were examined and Exts.B1 to B44 were marked. Commission Reports were marked as Exts.C1 and C2. 5. Initially the Rent Control Court found in favour of the landlord. In an appeal filed by the tenant as RCA 68/1999 the matter was remanded for fresh consideration by the Rent Control Court. Both parties were allowed opportunity to adduce evidence. Thereafter again the Rent Control Court found in favour of the landlord which was challenged by the tenant in appeal before the Appellate Authority. The Appellate Authority set aside the order passed by the Rent Control Court and again remanded the matter for fresh consideration. As against the said order of the Appellate Authority, the landlord preferred revision petition before this Court as RCR 232/2003 in which this RCR.No.93/09 3 Court found that the order of remand passed by the Appellate Authority is not justified and remitted the matter to the Appellate Authority with a direction to dispose of the appeal on merits. 6. The Rent Control Court on an appreciation of the evidence accepted the contention of the landlord that the tenant ceased to occupy the building for more than six months immediately prior to the filing of the petition without any reasonable cause and ordered eviction under Section 11(4)(v) of the Rent Control Act. After remand, the appellate authority confirmed the said finding. The tenant has come up in revision challenging the said finding. 7. The only point which arises for consideration is whether the finding of the Rent Control Court that the tenant ceased to occupy the building for more than six months without reasonable cause which is confirmed by the appellate authority warrants any interference. 8. The learned counsel for the revision petitioner Sri.C.R.Sivakumar argued strenuously that the Rent Control Court as well as the Appellate Authority erred in relying on Ext.C1 and C2 , the Commission reports. We are unable to agree. In Ext.C1 Commission RCR.No.93/09 4 report, the Commissioner has reported that when the Commissioner visited the shop room on 03/04/1998, it was found locked. The revision petitioner contended that as he was on bed rest, the shop was closed. To prove that case he produced Ext.B2 medical certificate and examined RW1, Dr.Joseph, Medical Officer, PHC, Meladi before the Rent Controller to show that he was laid up during that period. But the said certificate as well as the evidence of RW1 did not show that the tenant was actually bed ridden or admitted in any hospital. Therefore, the Rent Control Court as well as the Appellate Authority did not accept the contention of the revision petitioner that on 03/04/1998 he was laid up and that therefore did not open his shop on that date. Ext.C2 is the second report by the Commissioner. When the Advocate Commissioner visited the shop on 26/09/1998, the shop room was found closed. According to the revision petitioner, Saturday is a holiday for the shop and as it was on a Saturday the Advocate Commissioner visited the shop room, it was found closed. Tenant produced Ext.B15 issued by the Assistant Labour Officer, Koyilandy which showed that prior to 19-12-1997, weekly holiday was on RCR.No.93/09 5 Tuesday which was subsequently changed as Saturday. But the revision petitioner produced some bills which show that there were sales even on Saturday which belies his contention that holiday for the shop room was on Saturday. Relying on these facts, the Rent Control Court as well as the Appellate Authority did not accept the contention of the tenant that on the second visit of the Advocate Commissioner, the shop room was closed as Saturday was a holiday. We do not find any reason to interfere with the said findings of the Rent Control Court which was confirmed by the Appellate Authority. 9. There is also another reason for the lower court to come to the conclusion that the shop room was closed for a long period. The Advocate Commissioner at the time of both visits found heavy deposit of dust and spider web on the roof and waste papers and rubish accumulated on the courtyard which further strengthens the case of the landlord that the tenant did not occupy the building for a long period. No other point was argued before us. We have gone through the order of the Rent Controller and the judgment of the Appellate Authority and the evidence adduced by both parties before the Rent Control Court. RCR.No.93/09 6 We find no ground to come to a different conclusion. 10. Under these circumstances, we do not find any reason to interfere with the findings of both the courts below that the tenant has ceased to occupy the building for more than six months prior to the filing of the petition without any reasonable cause. Therefore, we do not find any merit in this revision petition and the Revision Petition is accordingly dismissed. The learned counsel for the revision petitioner practically conceded that delivery has been effected. If that be so, this judgment will not stand in the way of the revision petitioner invoking his remedies under Section 14 of the Rent Control Act against the order of delivery. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.93/09 7