IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 RCRev..No. 315 of 2007() ----------------------------------- RCA.139/2003 of DISTRICT COURT, THALASSERY RCP.218/2001 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT/LANDLORD ------------------------------------------------------------------------ VAZHAYIL HASHIM, S/O ABDUL RAHIMANKUTTY, RESIDING AT ZUHARA COTTAGE, BURNESSERY, KANNUR-3 REPRESENTED BY THE PA HOLDER VAZHAYIL SAMAD, S/O ABDUL RAHIMAN KUTTY, AGED 58 YEARS, 'ZAINA IBAS', KODAPARAMBA, KANNUR DISTRICT. BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENT(S): APPELLANT/TENANT --------------------------------------------------------- SEEVAYI ABDUL SALAM, S/O POKER HAJI, RESIDING AT CC 1257,(NEW CW 35/B 99), CAMP BAZAR, KANNUR-1. BY ADV. SRI.O.V.MANIPRASAD THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------- RCR No.315 of 2007 ------------------------------------------- Dated this the 19th November, 2010 ORDER Pius C.Kuriakose, J. The landlord is the revision petitioner and he challenges in this revision under Section-20, the judgment of the Rent Control Appellate Authority confirming the negative order passed by the Rent Control Court on the grounds under Section 11(3) and 11(2)(b) and reversing the order of eviction which happened to be passed by the Rent Control Court on the ground under Section 11(4)(v) dismissing the rent control petition. Various grounds have been raised assailing the judgment of the Appellate Authority. 2. We have gone through the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority. We have considered the submissions made before us by Mr.Maniprasad, the learned counsel for the respondent/tenant. We have reminded ourselves of the limits of the jurisdiction of this Court under Section 20. We notice immediately that as far as the grounds of RCR No.315 of 2007 2 arrears of rent and own occupation are concerned, the findings entered by the statutory authorities are concurrent. We do not find any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965 on those findings. We are not inclined to interfere with those findings. 3. But the findings of the statutory authority in the context of ground under Section 11(4)(v) are divergent and stand on a different footing. The tenant/respondent relied on, apart from his oral evidence as RW2, the documents Exts.B1 to B12 to support his contention that he has not ceased to occupy the building continuously for the statutory period of six months. On the contrary, the landlord relied on Ext.C1 report submitted by the Commissioner on the basis of an inspection conducted without notice to the tenant and oral evidence of PW3, the Commissioner, apart from the oral evidence of his power attorney holder as PW2. The Rent Control Court noticed that among the documents Exts.B1 to B12 produced by the tenant, it was only Ext.B6 dated 9.4.2001 which pertain to the relevant period of six months. The learned rent control court took the view that, on the basis of Ext.B6 RCR No.315 of 2007 3 alone, it cannot be held that the tenant had not ceased to occupy the building continuously for six months. The learned court highlighted that the tenant was not available in the petition schedule building to receive notice issued by the court regarding the RCP and that notice could be ultimately served on him only in his residential building. The court relied on the report submitted by the process server which was to the effect that when he visited the schedule building for serving notice on the tenant, the building was found locked. The commissioner's report was very much relied on to hold that even the varandha, which was reported to be full of cob webs and dust, was not under occupation. 4. The learned appellate authority considered the appeal preferred by the tenant and made a re-appraisal of the evidence. According to the appellate authority, appraisal of the evidence by the Rent Control court was not proper and it is not safe to conclude that there is cessation of occupation on the basis of the circumstances and evidence highlighted by the Rent Control Court. Taking that view of the matter, the appellate authority set aside the order of eviction which had been passed under RCR No.315 of 2007 4 Section 11(4)(v). 5. Sri.Maniprasad, the learned counsel for the respondent would support the impugned judgment of the appellate authority on the various reasons stated therein. According to him, the finding by the appellate authority under Section 11(4)(v) is a reasonable finding and there is no justification for interference within the contours of our jurisdiction under Section 20. 6. We have anxiously considered the submissions of the learned counsel for the parties. As the findings in the context of ground under Section 11(4)(v) are divergent, we have made a quick appraisal of the evidence also. According to us, the evidence already on record is not sufficient to hold correctly whether or not, there has been cessation of occupation continuously for the statutory period of six months. According to us, the tenant/respondent could have substantiated his defence of continued occupation and conduct of business best by examining a neighbouring shop keeper and by producing other documents including accounts books, if any, pertaining either to the business conducted or to the bank transactions during the period of alleged cessation. We RCR No.315 of 2007 5 feel that the issue whether the eviction order is liable to be passed against the tenant under Section 11(4)(v) should receive a second look by the Rent Control Court. 7. We notice another aspect of the matter. Monthly rent of Rs.300/-, which the respondent is presently paying to the revision petitioner was fixed in the 1992 and it is far below the rent, which the building may fetch if the same is let out today. The building is situated in a very important commercial area of Kannur Town. Hence, we are inclined to re-fix the rent payable by the respondent tentatively and subject to regular fixation of fair rent by the Rent Control court. 8. The result of the above discussion is therefore as follows: a) The judgment of the appellate authority to the extent it relates to the order of eviction passed under Section 11(4)(v) is set aside. b) The rent control court is directed to take a fresh decision regarding the liability of the tenant to be evicted under Section 11(4)(v) after giving an opportunity to both sides to adduce evidence. c) It is open to the respondent to examine any one RCR No.315 of 2007 6 of the neighbours of the petition schedule building. d) The rent payable by the respondent for the building is tentatively re-fixed with effect from 1.1.2011 at the rate of Rs.1,000/- per mensum. This re-fixation is tentative and if either party is aggrieved, it is open to them to move the Rent Control Court under Section 5 for re-fixation of fair rent. Till fair rent is fixed, the respondent shall pay rent at the rate of Rs.1,000/- per mensum. Parties shall appear before the Rent Control court on 14.12.2010. Rent Control Court is directed to complete the enquiry and pass revised order within four months of parties entering appearance. PIUS C.KURIAKOSE JUDGE K.SURENDRA MOHAN JUDGE css/