IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 RCRev..No. 40 of 2008 -------------------------- RCA.54/2006 of I ADDL.DISTRICT COURT/ RENT CONTROL COURT, KOZHIKODE RCP.80/2001 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/IST RESPONDENT/RESPONDENT ------------------------------------------------------------- N.C.MOHAMMED IQBAL, S/O.N.C.ALI, BLDG.NO.8/294, NEAR GUJARATI SCHOOL, BEACH ROAD, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): APPELLANTS & 2ND RESPONDENT/PETITIONERS -------------------------------------------------------------------------- 1. A.K.KAMAL, S/O.K.P.POKKU HAJI, HILLTOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. 2. A.K.BASHEER, S/O.K.P.POKKU HAJI, HILLTOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. 3. A.K.SHARAFUDEEN, S/O.K.P.POKKU HAJI, HILLTOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. 4. A.K.NAJEEB, S/O.K.P.POKKU HAJI, HILLTOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. 5. A.K.RAZIYA, D/O.K.P.POKKU HAJI, HILLTOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. RCR. NO.40/08 -2- 6. A.K.LAILA, D/O.K.P.POKKU HAJI, HILL TOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. 7. A.K.ASMA, D/O.K.P.POKKU HAJI, HILLTOP, POST PAROL, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. 8. A.K.ASHIM, S/O. -DO- -DO- ADV. SRI.A.SUDHI VASUDEVAN FOR R.1TO3,5TO7 SRI.C.MOHAMMED HABEEB FOR R.1TO3,5TO7 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/07/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.40 of 2008 ------------------------------------------------ Dated this the 12th day of July, 2010 ORDER Pius C. Kuriakose, J The tenant is in revision being aggrieved by the judgment of the Rent Control Appellate Authority ordering eviction against him on the ground of cessation of occupation without reasonable cause under Section 11(4)(v) of Act 2 of 1965. The landlord invoked the grounds under Section 11(4)(ii) and under Section 11(4)(v) for evicting the tenant. The ground under Section 11 (4)(ii) was concurrently found against the landlord and the decision declining eviction on the ground under Section 11(4)(ii) has become final. The R. C. R. No.40 of 2008 -2- allegation in the context of the ground under Section 11(4)(v) was that the tenant to whom the building was let out orally for conducting STD Booth, sale of biscuits and ice cream has ceased to occupy the building continuously since September, 2000, about eleven months prior to the institution of the RCP. The Advocate Commissioner deputed by the Court at the instance of the landlord reported that the petition schedule building was found locked with a seven lever lock. The Commissioner therefore, was unable to open the room for the purpose of reporting as to whether the allegations of the landlord in the context of ground under Section 11 (4)(ii) were correct. Significantly, the landlord never requested the aid of the court to have the R. C. R. No.40 of 2008 -3- room opened so that a report can be submitted by the Commissioner as to what was the condition of the building and whether it supported landlord's allegations under Section 11(4)(ii). At trial, the tenant produced property tax receipts issued by the Corporation against remittance of property tax for the building on behalf of the landlord. He also produced profession tax receipts indicating that the tenant is conducting some business in the room and is paying profession tax to the Corporation. The Rent Control Court noticed that it was admitted by the landlord that in the hall room which is adjacent to the petition schedule room (the room which was subject matter of RCR.41/08 already decided by us by separate judgment), the revision petitioner/tenant as a sub lessee is R. C. R. No.40 of 2008 -4- conducting hotel business. According to the Rent Control Court since the landlord's own case was that the hall room is being now physically occupied by the revision petitioner, the probabilities are more that the petition schedule room which is only a small room adjacent to the hall room is also occupied by the revision petitioner for conducting the same hotel business. Taking that view of the matter, the Rent Control Court declined order of eviction under Section 11 (4)(v). 2. The Appellate Authority however, reappraised the evidence and came to the conclusion that when a tenant claims that he is in occupation of a particular building for doing business, he had the obligation to produce R. C. R. No.40 of 2008 -5- documentary evidence and prove that his version is correct. The Appellate Authority noticed that the tenant had not produced any documents to prove that he was conducting STD Booth in the petition schedule room. According to the Appellate Authority if STD Booth is actually conducted continuously by the revision petitioner, he will be having documents at his disposal to support his contention. In that view of the matter, the Appellate Authority interfered with the order of the Rent Control Court and passed an order under Section 11(4)(v) against the revision petitioner. 3. In this revision petition under Section 20, various grounds have been raised by the revision petitioner assailing the judgment of the Appellate Authority. We have heard the submissions of R. C. R. No.40 of 2008 -6- Sri.R.Bindu Sasthamangalam, the learned counsel for the revision petitioner and those of Sri.A.Sudhi Vasudevan, the learned counsel for the respondents/landlords. Sri.Bindu would at the very outset submit that the order of eviction passed by the Appellate Authority for the first time against the revision petitioner on the ground of arrears of rent is erroneous. Though the learned counsel was very persuasive, we are not inclined to accept the above submission. After all the eviction passed under Section 11(2)(b) is in a way tentative and is always liable to be got vacated by making requisite deposits under Section 11(2)(c). In that view of the matter, we are not inclined to interfere with the order of eviction passed under Section 11(2)(b). R. C. R. No.40 of 2008 -7- 4. Sri.Bindu would assail the eviction order passed by the Appellate Authority under Section 11(4)(v) very strongly. Sri.Bindu highlighted that it is the landlord's own admission that the revision petitioner himself as an unauthorised sub lessee is conducting a hotel business in the hall which is adjacent to the petition schedule room which has got an area of just 90 sq.ft. The revision petitioner's case is that he is conducting business in the entire ground floor of the larger building. When it is conceded by the landlord that in a substantial portion of the entire ground floor, the revision petitioner is conducting hotel business, probabilities are much more that the revision petitioner is conducting hotel business also in the petition schedule room which is having an area of R. C. R. No.40 of 2008 -8- 90 sq. ft. Profession Tax receipt and Building Tax Receipt will show that the revision petitioner was in actual occupation of the petition schedule building also. The revision petitioner became obliged to pay building tax to the Corporation only because the landlord failed to remit the building tax and the bills were served on the revision petitioner in the petition schedule building. So the fact that bills were brought by the Corporation staff to the petitioner in the petition schedule building also shows that the petitioner was in occupation of the petition schedule building also. 5. All the submissions of Sri.Bindu were very forcefully resisted by Sri.Sudhi Vasudevan. Sri.Sudhi Vasudevan submitted that it was an absolutely false contention that the revision R. C. R. No.40 of 2008 -9- petitioner has raised in respect of the petition schedule building. His contention was that the petition schedule building does not exist as a separate room. His contention was that there is only one hall in the ground floor. The learned counsel drew our attention to the first two sentences in the cross examination of the revision petitioner as RW1. According Mr.Sudhi Vasudevan, the endeavour of the revision petitioner all along was to show that because he is carrying on business in the hall though unauthorisedly all the documents he has in his custody in respect of the hall room should apply for the petition schedule room also. The revision petitioner has miserably failed in proving that the documents which he has obtained from the Corporation pertain to the hall R. C. R. No.40 of 2008 -10- room and also the petition schedule room. The revision petitioner obtained sufficient opportunity for adducing the evidence, but failed to avail such opportunities. The best evidence to prove that a tenant is in actual occupation of a commercial building and doing business is documents which support the above case. No document has been produced by the revision petitioner to show that an STD Booth is being conducted in the petition schedule building. The revision petitioner does not deserve any indulgence and if opportunity is given by this Court at this stage, prejudice will be caused to the landlord. 6. We have very anxiously considered the rival submissions addressed at the Bar. An eviction ground under Section 11(4)(v) is made R. C. R. No.40 of 2008 -11- out against a tenant only when it is established by the landlord that the tenant has ceased to occupy the building continuously for more than six months without any reasonable cause. Here the landlord's allegation was that the revision petitioner has ceased to occupy the building. The tenant's contention on the contrary was that he is conducting hotel business in the adjacent hall room and in the petition schedule room. As regards conduct of hotel business in the adjacent hall room, there is no dispute by the landlord. The version of the tenant that he is conducting hotel business or businesses ancillary to hotel business such as sale of ice cream, biscuits etc. in the adjacent petition schedule room is not an improbable one. The learned Appellate Authority R. C. R. No.40 of 2008 -12- reversed the decision of the Rent Control Court mainly on the reason that the revision petitioner did not produce any documents for supporting his claim that he was conducting STD booth in the petition schedule building. We also are in agreement with the learned Appellate Authority that if a person is conducting an STD booth, he must be having documents to support such conduct. 7. Mr.Bindu Sasthamangalam, as a last plea, requested that an opportunity be given to the revision petitioner to produce documents which will show that he has been conducting STD Booth in the petition schedule room during the relevant period. Even though the above request was stiffly opposed by Mr.Sudhi Vasudevan, we feel that on R. C. R. No.40 of 2008 -13- the totality of the circumstances attending on this case where in the first floor the revision petitioner is permitted to conduct another business by the same landlord on the basis of a separate tenancy, there is justification for granting opportunity to the revision petitioner for producing evidence. In taking that view, we take into account the submissions of Sri.Bindu Sasthamangalam that some space in the ground floor is indispensable for the successful conduct of the business in the first floor. Hence, we are inclined to grant opportunity, however only on conditions. 8. We notice that the rent of Rs.400/- presently being paid by the revision petitioner to the petition schedule room is below the prevailing rent in the locality. The condition we propose to R. C. R. No.40 of 2008 -14- impose is to fix the rent payable to the petition schedule room tentatively at Rs.1,000/- per mensem. 9. The result of the above discussion therefore is as follows:- The judgment of the Rent Control Appellate Authority to the extent it pertains to ground under Section 11(4)(v) is set aside. RCA is remitted to the Rent Control Appellate Authority for deciding the question whether an eviction order is liable to be passed against the revision petitioner on the ground of cessation of occupation. The Appellate Authority is directed to afford opportunity to the revision petitioner to adduce documentary evidence regarding conduct of STD Booth and any other business in the petition schedule room. If R. C. R. No.40 of 2008 -15- the revision petitioner adduces evidence and if the landlord is desirous, landlord will be permitted to adduce counter evidence. The Appellate Authority will complete the enquiry and pass the revised judgment at the earliest and at any rate within three months of the parties entering appearance before the Appellate Authority. 10. The rent payable by the revision petitioner is fixed at Rs.1,000/- per mensem with effect from first August, 2010. We make it clear that the above fixation is tentative and if either of the parties is aggrieved it is open to him to move regular application for fixation of fair rent. Till fixation of fair rent, he will pay rent at Rs.1,000/- per mensem. Parties are directed to appear before the Appellate Authority on 16/08/10. Transmit the R. C. R. No.40 of 2008 -16- records forthwith to the Rent Control Appellate Authority, Kozhikode. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-