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 31ST MAY 2011 / 10TH JYAISHTA 1933 RCRev..No. 93 of 2011(A) ----------------------------- RCA.21/2010 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.40/1997 of RENT CONTROL COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT/2ND RESPONDENT ------------------------------------------------------------ K.L.CHACKO, AGED 65, S/O.KUNNATHU LONAPPAN, PROPRIETOR, 25/1861, KUNNATH HARDWARES, THRISSUR BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S)/RESPONDENTS/PETITIONER AND 1ST RESPONDENT: ------------------------------------------------------------------------------ 1. JOHNSON,S/O.MAPRANAM ANTHAPPAN, KANNAMKULANGARA DESOM CHIYYARAM VILLAGE, THRISSUR-680026 2. K.L.PAUL, PROPRIETOR, KUNNATHU HARDWARES, THRISSUR-680001 ADV. SRI.JIJO PAUL(FOR CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.93 of 2011 ------------------------------------------------ Dated this the 31st day of May, 2011 ORDER Balakrishnan, J The tenant is in revision. He challenges the order of eviction concurrently passed by the two authorities below under Section 11(4)(v) of the Act. The RCP was filed on 26/03/97. It was alleged by the landlord that the tenant ceased to occupy the petition schedule building for a continuous period of nine months immediately prior to the date of filing of the RCP without any reasonable cause. The petition schedule building is situated in a busy area. The tenant resisted the petition contending that the allegation of cessation of occupation put forward by the landlord is not true. The tenant is conducting business in scrap iron in the petition schedule building and so, it will not be opened R. C. R. No.93 of 2011 -2- throughout the day. The normal working hours is only from 10.00 a.m to 4.00 p.m. Not only that only when the scrap iron was brought to the petition schedule building, the said room will be opened. The fact that the petition schedule room was seen closed when the Advocate Commissioner inspected the building is no reason to hold that the tenant has ceased to occupy the petition schedule building. 2. Analysing the oral and documentary evidence adduced by the parties, the Rent Control Court found that the tenant ceased to occupy the petition schedule building for a continuous period of more than six months without any reasonable cause. Hence, order of eviction was passed under Section 11(4)(v). The learned Appellate Authority after re-appraisal of the evidence concurred with the finding entered by the learned Rent Controller and confirmed the order of eviction. 3. Sri.Sreekumar G. Chelur, the learned counsel R. C. R. No.93 of 2011 -3- appearing for the revision petitioner would submit that the evidence adduced by the parties was not properly appreciated by the courts below. The court below should not have relied upon the fact that the petition schedule room was seen closed on the four days to uphold the plea of cessation of occupation. 26/03/97 was a Maundy Thursday and 27/03/97 was a Good Friday. Those two days were holidays. The inspection on the other days was not during working hours i.e. from 10.00 a.m to 4.30 p.m. Therefore, the court below should not have relied on the Commissioner's Report. This submission made by the learned counsel has been stoutly resisted by Sri.Jijo Paul, the learned counsel for the landlord. He would submit that the business (even according to the tenant) which is conducted in the petition schedule building is only in scrap iron. It can be brought to the shop room only in the evening or in the early morning and not during 10.00 a.m to 4.00 p.m., when R. C. R. No.93 of 2011 -4- it would be busy with traffic. The fact that when the electricity metre reader inspected the petition schedule building for noting the reading, it remained closed for several months would indicate that this premises remained closed throughout. It is also pointed out that there was no consumption of electricity at all for a period of nine months immediately prior to 26/03/97. That also would go a long way against the case put forward by the tenant that the petition schedule building was really occupied. Sri.Sreekumar would submit that the electricity was actually drawn from the neighbouring room and so, the fact that the metre installed in the petition schedule building did not show any reading may not be taken as a ground to hold that there was cessation of occupation. But no such contention was advanced when PW2, the metre reader was examined. 4. It is also pertinent to note that the Advocate Commissioner had referred to certain names of persons who R. C. R. No.93 of 2011 -5- had told about the cessation of occupation. It may not be admissible as such. But when the landlord has prima facie established non-occupation, the tenant could have examined any of the neighbouring shop owners to prove that there was no cessation of occupation at all. Curiously enough no neighbouring shop owner was examined by the tenant. Similarly, no worker alleged to have been employed by the tenant for doing loading and unloading work of scrap iron was also examined to prove that there was no cessation of occupation. Certain observations made by the Commissioner regarding the presence of dust and cobweb etc. and the posters seen affixed on the front door-grills also would indicate non-occupation of the premises by the tenant considerably for a quite long time. 5. The learned counsel for the revision petitioner has relied very much upon Sales Tax returns. But Sri.Jijo Paul has pointed out that as per the remark/endorsement made on R. C. R. No.93 of 2011 -6- the returns by the Sales Tax authorities the returns were required to be filed separately in respect of the petition schedule building (where scrap iron business is conducted) and also in respect of the iron and steel business conducted in the building situated on the Ekkanda Wariar Road. Therefore, according to Sri.Jijo Paul the Sales Tax returns which were produced by the tenant, that too only after the case was remanded for fresh consideration, cannot carry any probative force, more so, because they do not pertain to the petition schedule building. 6. It is also worthwhile to note that Ext.B26 series of copies of the returns said to have been submitted by the petitioner before the Sales Tax Authority do not contain any seal or signature of the Sales Tax officer nor is there any evidence to show that those returns were actually filed by the petitioner. The sales tax returns and receipts do not show that they actually pertain to the scarp iron business R. C. R. No.93 of 2011 -7- conducted in the petition schedule building. Exts.B1 to B9 bill books also do not show that those bill books actually pertain to the business conducted in the petition schedule building. The courts below were not inclined to accept those documents since the petitioner is conducting almost a similar business in the building situated on the Ekkandawarrior Road. The records or registers showing the payment of wages to the labourers employed by the petitioner for loading and unloading work or for some other work done in the petition schedule building have not been produced. 7. The learned counsel Sri.Sreekumar wanted this court to rely upon the observations contained in Ext.C2 report. The inspection for submitting that report was had by the Advocate Commissioner on 27/06/1998. The first inspection was on 26/03/1997 which was had at the instance of the landlord. If as a matter of fact the revision petitioner was R. C. R. No.93 of 2011 -8- actually in occupation of the petition schedule building conducting business therein, he would have come to know of the inspection made by the Commissioner on 26/03/1997 and on four other dates mentioned earlier immediately on the next day of the inspections and he would have filed an application for Commission immediately on the next day or at least within a few days. He waited for more than 14 months to file an application for issuance of a Commission. The landlord contends that it was done only after stage managing things. Simply because some account books were made available in the petition schedule room after about 14 months a tenant cannot contend that the building was actually occupied by him during the relevant period of six months immediately prior to 26/03/1997. Both the courts have surveyed the entire evidence in detail and came to a conclusion that the case put forward by the landlord is more probable and acceptable. We find no reason to differ. R. C. R. No.93 of 2011 -9- 8. In the facts and circumstances discussed above, we are not inclined to upset the concurrent findings entered by the courts below. The revision must necessarily fail. 9. As a last plea, Sri.Sreekumar submits that at least one and a half year's time may be granted to the revision petitioner for vacating the petition schedule building. This request has been stoutly opposed by Sri.Jijo Paul who is appearing for the landlord. Considering all the aspects, we are inclined to grant one year time to the revision petitioner to vacate the petition schedule building. 10. In the result, the revision petition is dismissed. The revision petitioner/tenant is granted time to surrender possession of the petition schedule building till 31/05/12 on the following conditions:- The revision petitioner will file an affidavit before the execution court or the Rent Control Court as the case may be within one month from today undertaking to surrender R. C. R. No.93 of 2011 -10- peaceful surrender of the petition schedule building on or before 31/05/12 and further that he will pay the entire arrears of rent, if any, within one month and will continue to pay occupation charges at the rate of Rs.1,000/- per month with effect from 01/06/11 till actual date of surrender. It is made clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-