IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 RCRev..No. 422 of 2006() ------------------------ (RCA NO.132/05 OF DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY RCP 187/03 OF RENT CONTROL COURT/ADDL.MUNSIFF COURT – 1) REV.PETITIONER/APPELLANT/PETITIONER ------------------------------------------------------- PAIKKAT BASHEER, KARANNUR AMSOM DESOM, REPRESENTED BY POWER OF ATTORNEY HOLDER, M.RASHEED, S/O.ALIKOYA, PANANKANDY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.A.SUDHI VASUDEVAN RESPONDENT(S)/RESPONDENT/RESPONDENT: --------------- MEPPONTTIL RAMAN, MUKKADA AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 422 OF 2006 ------------------------ Dated this the 18th day of January, 2011 O R D E R Pius C.Kuriakose, J. Our order dated 14/1/2011 is suo motu recalled. 2. Sri.Sudhi Vasudevan, learned counsel for the revision petitioner/landlord submitted that the statutory authorities erred in not appreciating the commission report properly. The learned counsel pointed out that even the wooden shutters of the petition schedule building had collection of cobwebs on the same. This, according to him, is a strong circumstance showing that the building has not been opened at all. The learned counsel argued that non examination of the landlord himself is not fatal to the present case where the court is not called upon to examine the bona fides of the claim. The landlord had taken out a commission who found that the building was closed at the time of inspection. Thus, the initial burden on the part of the landlord to show that there was cessation of occupation was clearly discharged . As 3against this, it was the tenant's burden RCR.No.422/2006 2 to adduce quality evidence and show that the building was continuously being occupied by him. Mere presence of hay and some earthen pots will not show that the building is under occupation. The learned counsel referred to decisions in support of his submissions. Mr.Sudhi Vasudavan highlighted that the rent was in arrears continuously for several years and according to him, this is yet another circumstance which shows that there was cessation of occupation. The above circumstance was also not given due weight by the learned authorities under the statute. 3. Resisting the submissions of Mr.Sudhi Vasudavan, Sri.P.A.Harish learned counsel for the tenant, would highlight that though the landlord had invoked two grounds to evict the tenant, the ground of arrears of rent was not one among them. It is on the basis of a family partition deed that the present landlord claims landlordship. The contention of the tenant was that rent was being paid even earlier to the execution of the alleged partition deed to the brother of the present landlord. The landlord himself knew that rent was being paid to his brother and this was why the landlord did not invoke Section 11 RCR.No.422/2006 3 (2)(b) as a ground for eviction. As regards the presence of cobwebs on the wooden shutters, Mr.Harish submitted that in the nature of the building and the business carried on therein, the tenant was not in the habit of removing all the wooden shutters and he removed only one or two shutters so as to facilitate removal of goods therefrom. It is only natural that in a premise where business is being conducted in hay and earthen pots, there is collection of cobwebs. Mr.Harish would remind us of the attenuated nature of the jurisdiction under Section 20 and submit that this court will not be justified in upsetting the finding of the statutory authorities which is a reasonable one founded on evidence. 4. As directed by us, both sides addressed arguments as to how much rent the building will fetch if the same is let out today. Mr.Harish submits that the maximum rent the building may fetch is Rs.150/- per month. Mr.Sudhi Vasudevan asserted that the building will fetch not less than Rs.1,000/- per month. 5. Having anxiously considered the submissions addressed at the Bar and having scanned the judgment of the Appellate Authority and the order of the Rent Control Court and keeping in RCR.No.422/2006 4 mind the para meters to be applied while exercising jurisdiction under Section 20, it is clear to our mind that the judgment of the Appellate Authority does not warrant interference in this jurisdiction. The Revision Petition will stand dismissed. However, we re-fix the rent payable by the respondent/tenant with effect from1/2/2011 at Rs.450/- per mensem. It is open to either party to move the Rent Control Court by appropriate petitions under Section 5 for fixation of fair rent. Till fair rent is fixed, the respondent shall pay rent at the rate of Rs.450/- per mensem with effect from 1/2/2011 to the revision petitioner/landlord. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk