IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 RCRev..No. 305 of 2008() ------------------------ RCA.140/2007 RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.8/2007 RENT CONTROL COURT, VADAKARA .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ----------------------------------------- KOLANGARA KANDIYIL RADHAKRISHNAN, S/O.AMMALU AMMA, AGED 62 YEARS, BUSINESS, RESIDING AT MADATHUMTHAZHA KUNIYIL, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT/ RESPONDENT/PETITIONER: ------------------------------------- KOROTHKANDIYIL CHATHU, S/O.CHOYI, AGED 66 YEARS, BUSINESS, RESIDING AT CHARALILTHAZHA KUNIYIL, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ------------------------------- R.C.R.NO. 305 OF 2008 ------------------------------- Dated this the 12th day of December, 2008 O R D E R Raman,J. Tenant, who is faced with an order of eviction passed by the Rent Control Court and affirmed by the Appellate Authority under Section 11(4)(v) of the Kerala Building (Lease and Rent Control) Act for cessation of occupation of the building for a period of six months without sufficient cause, has filed this revision. According to the revision petitioner/tenant, except the Commissioner's reports, there is no other material holding that there was cessation of occupation as alleged in the petition. According to him, the Commissioner at his instance has inspected the property and submitted a report which would show that on the subsequent visit the tenant was occupying the shop room and continuing his business. It is also contended that Exts.B1 to B6 are the licence fee receipts issued by the different authorities, so as to enable him -2- R.C.R.No.305/2008 to conduct the business. Exts.B7 to B25 are the building tax receipts and rent receipts. Except the oral testimony of PWs.1 and 2 and the Commission reports, there is no other material evidence to out weigh the evidence of the tenant to come to the conclusion that he has ceased to occupy the building. According to him, the burden to prove that the tenant has ceased to occupy the building for a continuous period of six months without any proper cause, lies on the landlord and in this case he has not discharged the same and therefore both the courts below have erred in granting an order of eviction. 2. We have heard the learned counsel Sri B. Krishnan appearing on behalf of the petitioner and perused the orders passed by the courts below. We are unable to accept the contention that there is any error of law on the part of the courts below in granting eviction under Section 11(4)(v) of the Act. The landlord has specifically pleaded that tenant has ceased to occupy the building for a continuous period of six months. He has taken out a -3- R.C.R.No.305/2008 Commission. He was examined himself as PW-1, besides an employee of the neighbouring hotel was examined as PW-2, whose evidence is sought to be demolished on the ground that he is an employee of neighbouring hotel, whose employer is having an eye on the property now occupied by the tenant and therefore his version should be treated as an interested version. But the court below, after analysing the evidence of PW-2, held that it cannot be believed that an employee in an establishment will give false evidence against the neighbouring occupant to evict him and grab his room. The court below had appreciated the evidence on record and we cannot in this revision re-appreciate the evidence to come to a different conclusion, unless the inference drawn is found to be perverse. We do not find anything to discard the evidence of PW-1 in that regard. The reports of the Commissioner were also analysed by the court below, which clearly would show that the tenant was not in occupation of the building for a considerable time. Since the tenant is stated to have been continuing a business, he could have -4- R.C.R.No.305/2008 produced better materials to prove a positive fact of his possession during the period, if it be true. Mere production of few licences will not show that there was any business conducted. That by itself is hardly sufficient, as against the evidence adduced in this case, to prove the actual occupation during the period of six months. If any licence is granted for a period of one year and after six months a tenant ceases to occupy the building, the fact that he has a licence for the remaining period of six months also may not lead to any inference that he is in occupation for the balance period. It is equally possible for a tenant doing business to produce the books of accounts and other documents relating to the purchase of materials and the goods sold from his shop or sale bills. No such attempt was made. No other person in the vicinity or any neighbouring shopkeeper is also examined by the tenant to discard the evidence on the side of the landlord. Considering the totality of the evidence in this case both oral and documentary along with the commission reports, it cannot be said that the conclusion reached -5- R.C.R.No.305/2008 by the Rent Control Court and affirmed by the Appellate Authority is in any way perverse warranting any interference in this revision. We find no merit in this revision and it is accordingly dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.