IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 RCRev..No. 281 of 2011() ----------------------- RCA.7/2009 OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.7/2005 OF RENT CONTROL COURT, THRISSUR .................. REVISION PETITIONER/APPELLANT/RESPONDENT : ---------------------------------------------------------------------------- E.O.LAWRENCE, S/O.EDAKKALATHUR OUSEPH, NOW RESIDING AT WELCOME VILLA, POONKUNNAM, THRISSUR-2. BY ADV. SRI.P.C.CHACKO (PARATHANAM) RESPONDENT/RESPONDENT/PETITIONER: -------------------------------------------------------------- SEBASTIAN, S/O.PUTHUR JOSEPH, POOTHOLE DESOM, THRISSUR TALUK, POOTHOLE P.O. 0 680 004. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- RCRev..No. 281 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE A1 : FORM OF DELIVERY NOTES FOR THE PERIOD FROM 10.6.2004 TO 22.11.2004 AND 4.11.2009 TO 8.11.2010 AND 7.12.2010. ANNEXURE A2 : DELIVERY REGISTER ISSUED UNDER RULE 33 A(2) OF THE KERALA GENERAL SALES TAX RULES 1963 FOR THE PERIOD FROM 10.6.2004 TO 22.5.2007. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.S. TO JUDGE Mn PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- RCR.NO. 281 of 2011 --------------------------------- Dated this the 12th day of October, 2011 ORDER Pius C.Kuriakose,J. Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming order of eviction passed by the Rent Control Court on the grounds of additional accommodation under section 11(8) and cessation of occupation under section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Various grounds have been raised assailing the eviction orders passed by the statutory authorities under the above two grounds. One ground which is prominently raised against the eviction order passed under section 11(8) is that even on the showing of the landlord the application for eviction under section 11(8) is not maintainable in law. It is stated that the claim of the landlord is not that the landlord is in occupation of another portion of the larger building, a part of which is the petition schedule building. On the contrary, the claim is that the landlord's dependent son Sri.Babu Sebastian is in occupation of another portion and he is RCR.281/2011 2 experiencing shortage of space for conducting his business. Under such a factual situation ground under section 11(8) will not be applicable. 2. Having considered the submissions addressed before us by Sri.P.C.Chacko, learned counsel for the revision petitioner, all whose submissions were resisted by Sri.Santhosh Poduval, and having gone through the judgment of the appellate authority and the order of the Rent Control Court to the extent they pertain to eviction ground under section 11(8) we are convinced that the statutory authorities have not chosen to consider the above ground at all. It is seen on a perusal of the memorandum of appeal grounds 10 and 16 submitted by the tenant before the Rent Control Appellate authority that these grounds were raised specifically. We are of the view that in view of the conceded position that the landlord does not have occupation of any portion of the larger building constituting the petition schedule building also, the eviction order is concurrent though the same is, passed under section 11(8) cannot be sustained. We vacate the eviction order passed under section 11 (8). RCR.281/2011 3 3. The case of the landlord in the context of section 11 (4)(v) that the tenant has used to occupy the building continuously without any reasonable cause for years. The defence of the revision petitioner tenant was one of total denial. In the defence statement the name of the business carried on by the revision petitioner is not disclosed. On the contrary on a reading of statement of defence what appears to us is that the revision petitioner is conducting business in rice and other food grains apart from using the building as a godown for the wholesale business which is conducted in rice and food grains. The Rent Control Court on appreciating the evidence which consisted also of report submitted by the Commissioner who conducted local inspection on as many as three occasions found that the landlord was successful in showing that the eviction ground under section 11(4)(v) did exist. It was noticed by the Rent Control Court that despite the claim of the revision petitioner that the building was being used as a place of business as well as a place of storage for stock in trade, no evidence barring oral evidence was forthcoming to substantiate the above defence. It was noticed that the Commissioner on the basis of RCR.281/2011 4 three visits conducted including first surprise visit it was reported that no signs of occupation was noticed. According to us, appreciation of evidence by the statutory authorities is quite proper. We do not find any irregularity, illegality and impropriety as contemplated by section 20, in the decision concurrently taken by the two statutory authorities that eviction ground under section 11(4)(v) stands established. In short within the well delineated contours of our jurisdiction under section 20 we do not find warrant for interference as the finding concurrently entered by the two authorities that eviction ground under section 114(v) stands established is a reasonable finding founded on legal evidence available on record. Revision to the extent it pertains to eviction ground under section 11 (4)(v) will fail and to that extent RCR will stand dismissed. 4. After we made our decision known to Sri.P.C.Chacko learned counsel for the revision petitioner he requested for granting atleast two years time to surrender the premises. He submitted that the tenant will be prepared to pay increased rent for the time granted by this court. This request was opposed by Sri.Santhosh Poduval. Despite Pothuval's RCR.281/2011 5 submissions we are of the view that the eviction order which is confirmed by us under section 11(4)(v) shall be kept in abeyance for one year from today till 15.10.2012 subject to the following conditions:- (1) The revision petitioner shall pay occupational charges with effect from 1.11.2011 till he surrenders the building at the rate of Rs.1500/- p.m. (2) The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court as the case may be within three weeks from today undertaking to give peaceful surrender of the building to the respondent on or before 15.10.2012 and undertaking further to pay occupational charges with effect from 1.11.2011 at the rate of Rs.1500/- p.m. We make it clear that the revision petitioner will get benefit of time as allowed above only if he files the affidavit and honours the undertakings therein. PIUS C. KURIAKOSE,JUDGE pmn/ C.K.ABDUL REHIM,JUDGE RCR.281/2011 6