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 1ST MARCH 2011 / 10TH PHALGUNA 1932 RCRev..No. 75 of 2008(D) ------------------------------ RCR.109/2003 of ADDL. DISTRICT JUDGE (ADHOC-I), THALASSERY RCP.44/2001 of MUNSIFF'S COURT, PAYYANNUR .................... PETITIONERS/RESPONDENTS/RESPONDENTS: --------------------------------------------------- 1. MUKREERAKATH KHADEEJA, W/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 60 YEARS, NO OCCUPATION, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. 2. MUKREERAKATH ABDUL HAMEED, S/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 35 YEARS, BUSINESS, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. 3. MUKREERAKATH SUHARABI, D/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 33 YEARS, NO OCCUPATION, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. 4. MUKREERAKATH ASHRAF, S/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 30 YEARS, BUSINESS, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. 5. MUKREERAKATH JAMEELA, D/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 27 YEARS, NO OCCUPATION, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. 6. MUKREERAKATH ABDUL KHADER, S/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 24 YEARS, BUSINESS, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. RCRev..No. 75 of 2008(D) -2- 7. MUKREERAKATH SHAREEF, S/O. LATE VATTIYAN MUHAMMED KUNHI, AGED 20 YEARS, NO OCCUPATION, RESIDING AT KANKOLE AMSOM, KANKOLE DESOM, TALIPARAMBA TALUK, P.O. KANKOLE. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): APPELLANTS/PETITIONERS: --------------------------------------------------- 1. KRISHNA JANAKI,W/O.LATE MURALIDHARAN, AGED 67 YEARS, OCCUPATION NIL, RESIDING AT S-1, CHINDAVALAPPU FLAT, RAM MOHAN ROAD, KASSABA AMSOM, DESOM, KOZHIKODE DISTRICT. 2. JAMMNA SATHYAPRADEEP, D/O. MURALIDHARAN, AGED 35 YEARS, OCCUPATION NIL, RESIDING AT S-1, CHINDAVALAPPU FLAT,RAM MOHAN ROAD KASSABA AMSOM, DESOM, KOZHIKODE DISTRICT. 3. JAGATHA RAJENDRAN, D/O.MURALIDHARAN, AGED 33 YEARS, OCCUPATION NIL, RESIDING AT S-1, CHINDAVALAPPU FLAT,RAM MOHAN ROAD KASSABA AMSOM, DESOM, KOZHIKODE DISTRICT. 4. JALAJA M., D/O. MURALIDHARAN, AGED 29 YEARS, OCCUPATION NIL, RESIDING AT S-1, CHINDAVALAPPU FLAT,RAM MOHAN ROAD KASSABA AMSOM, DESOM, KOZHIKODE DISTRICT. ADV. SRI.T.K.VIPINDAS FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/03/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.75 of 2008 ------------------------------------------------ Dated this the 1st day of March, 2011 ORDER Balakrishnan, J The tenants have filed this revision petition challenging the order of eviction passed by the learned Appellate Authority under Section 11(4)(v) of the Act reversing the order of dismissal of the claim made by the Rent Control Court. The RCP was filed on 23/06/97. The landladies contended that the tenants ceased to occupy the petition schedule building for more than six months without any reasonable cause. The petition schedule building which was leased out to the tenants as per Ext.A1 rent deed is situated in the upstair portion of a building complex by name K.M.K complex. The tenants are doing business under the name and style “Mahima Fancy” in the adjacent building R. C. R. No.75 of 2008 -2- by name “R.K. Complex”. Both buildings belong to the respondents. The petition schedule building was rented out to the tenants as per Ext.A1 to use it as a godown for the business conducted in “Mahima Fancy”. A commission was taken out to inspect the petition schedule building. The Commissioner filed Ext.C1 report stating that the petition schedule building was not used for about one year. The very same commissioner was taken to the building after about ten months and then Ext.C2 report was filed. 2. Before the Rent Control Court, the first petitioner in the RCP was examined as PW1 and the tenant and another witness were examined as RW1 and RW2. The Advocate Commissioner was examined as CW1. On behalf of the tenant Exts.B1 to B8 series were marked. The learned Rent Controller found that the landladies could not establish that the tenant has ceased to occupy the petition schedule R. C. R. No.75 of 2008 -3- building continuously for six months just prior to the filing of the petition and hence, RCP was dismissed. 3. The learned Appellate Authority after re-appreciating the enitre evidence came to the conclusion that the tenants have ceased to occupy the petition schedule building without any reasonable cause and thus, ordered eviction under Section 11(4)(v) of the Act. 4. The learned counsel for the revision petitioners, Sri.T.V.Jayakumar Namboodiri has argued in extenso contending that the learned Appellate Court has not considered the effect of Ext.C2, the second Report of the Commissioner. The petition schedule building which is situated upstairs of K.M.K Complex was actually used by the tenants as godown and as such it was not necessary for the tenants who was conducting Mahima Fancy in the ground floor of R.K. Complex to open the upstair room on all days. R. C. R. No.75 of 2008 -4- The learned counsel further submits that since the petition schedule building is situated just by the side of Payyannur Bus Stand which is a very busy area and hence, there was every possibility to have dust on and around the lock and shutter of the building and it was not indicative of cessation of occupation of the petition schedule building. The learned counsel further submitted that the documents produced by the tenants would show the business activities conducted in Mahima Fancies and that would prove that the fancy items sold in that building were used to be stocked in the petition schedule building which was used as a godown/store room. As such, the learned Appellate Authority should have found favour with the view taken by the learned Rent Controller that there was no cessation of occupation as alleged by the landladies. This argument was resisted by Sri.Vipin Das, the learned counsel for landladies pointing out the non R. C. R. No.75 of 2008 -5- production of relevant documents to prove the actual occupation of the tenanted building. 5. We have gone through the order passed by the learned Rent Controller and also the judgment of the learned Rent Control Appellate Authority. For the purpose of Ext.C1 Report, the Advocate Commissioner inspected the petition schedule building on the date of filing of the RCP itself. The Commissioner found dust on and around the lock. It was also noted that the keyhole of the lock was covered with cob web and rust. The deposit of dust on the shutters and on the front of the varandah noted by the Commissioner was also suggestive of the fact that there was non- occupation of the petition schedule building for quite a long time. 6. The learned counsel for the revision petitioners would submit that admittedly there was regular payment of R. C. R. No.75 of 2008 -6- rent and that would sufficiently indicate that there was no cessation of occupation of the petition schedule building, for, if the tenant had ceased to occupy the building, the rent would not have been paid. 7. Sri.Vipin Das, the learned counsel appearing for the landladies would submit that when the landladies used to approach the tenants, conducting business in Mahima Fancy in R.K. Complex, which also was rented out to the tenants by the very same landlady for collecting rent, the rent of the upstair portion was also used to be paid by the tenant, but that does not mean that there was no cessation of occupation as alleged by the landladies. Mere payment of rent will not by itself prove that there was continuous occupation of the petition schedule building. 8. It was admitted by PW1 that the petition schedule building was leased out for using it as a godown. But it is R. C. R. No.75 of 2008 -7- important to note that the tenants did not produce any document to show that the fancy article or other items sold in Mahima Fancy were actually stocked in the petition schedule building. The learned counsel for the revision petitioners has very much stressed on Ext.C2, the second report filed by the Commissioner. But the inspection for second report was conducted about ten months after the first inspection. Since the inspection was had about ten months after the appearance of the revision petitioner before the court below Ext.C2 cannot be of much assistance, for, it is easy for any tenant to stage manage things and to get a report regarding the then state of affairs which would nullify the effect of the report obtained first in point of time which alone would reflect on the real state of affairs as on the date of the first inspection by the Advocate Commissioner. In a case filed under Section 11(4)(v), the R. C. R. No.75 of 2008 -8- best mode of proof of cessation of occupation is to conduct surprise inspection of the petition schedule building by the commissioner. The salient features noted by the Advocate Commissioner would be of much help to the court to come to a conclusion as to whether the plea of cessation of occupation put forward by the landlady is true. The effect of that report cannot be nullified by adopting a stultifying strategy of getting a report after several months. Therefore, Ext.C2 is not of any help for the tenants to say that there was no cessation of occupation. 9. It was observed by the learned Appellate Authority that the Registration Certificate issued under the Shops and Commercial Establishments Act does not show the petition schedule building as the one used by the tenant as his go down or store room. Referring to the provisions of that Act, the learned Appellate Authority found that 'go down' also R. C. R. No.75 of 2008 -9- would come within the definition of Shop mentioned therein. That apart if actually the petition schedule building was used as a go down there would certainly be a register showing the stock of the articles. Whenever new items are taken into the go down it must find a place in the stock register. Similarly whenever items are taken out for sale to be conducted in Mahima Fancy that must also find a place in the register. Simply because some items were sold to Mahima Fancy by some wholesaler it cannot be said that all those items were taken to the petition schedule building. The learned Appellate Authority has thoroughly scanned the evidence and come to the conclusion that the plea of cessation of occupation put forward by the landladies is true. On a re-appraisal of the evidence we could not find anything wrong in the conclusion arrived at by the learned Appellate Authority so as to upset that finding. There is no R. C. R. No.75 of 2008 -10- illegality, irregularity or impropriety in the finding of the learned Appellate Authority which is the final fact finding authority under the statutory scheme. The revision, therefore, must fail. It is hence, dismissed. 10. The learned counsel for the revision petitioners submits that the tenants may be granted at least one year time to vacate the petition schedule building. Sri.Vipin Das the learned counsel for the landladies strongly opposed the request. However, considering all those aspects we are inclined to grant six month's time to the tenants to vacate the premises but on condition that the revision petitioners should file an affidavit within three weeks from today before the execution court or Rent Control Court, as the case may be, undertaking to surrender the petition schedule building peacefully to the landladies within six months' from today and undertaking further that arrears of rent, if any, due as on date will be discharged within one month and further that R. C. R. No.75 of 2008 -11- they will continue to pay occupation charges at the current rent rate till the date of actual surrender of the building. We make it clear that the tenants will get the benefit of time granted as above only if they file the affidavit on time and honour the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-