IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RCRev..No. 46 of 2010() ----------------------- RCA.58/2007 of ADDL.DISTRICT COURT,KOTTAYAM RCOP.20/2006 of ADDL.M.C.,KOTTAYAM .................... REVISION PETITIONER/APELLANT/COUNTER PETITIONER:- --------------------------------------------------------------------- SYED MUHAMMED RAWTHER, AGED 65 YEARS, S/O KUNJU MOIDEEN RAWTHER, THACHETTUPARAMBIL HOUSE, KUMMANAM KARA, CHENGALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.V.B.PREMACHANDRAN SRI.S.MOHANDAS SRI.K.N.GOVINDANKUTTY MENON SRI.S.MADHAVAN NAIR SRI.GNR.UNNITHAN RESPONDENT(S):/RESPONDENT/ PETITIONER:- --------------------------- JACOB MATHEW, AGED 68 YEARS, S/O. E.C. MATHEW, ERIKKATTU HOUSE, ANNANKUNNU, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 46 OF 2010 ------------------------ Dated this the 5 th day of February, 2010 O R D E R Pius C.Kuriakose, J. The tenant has come up in revision against the order of eviction concurrently passed against him by the authorities under the Rent Control Act on the grounds of arrears of rent and cessation of occupation. The landlord-tenant relationship between the parties is not disputed. The allegation of the landlord in the context of ground under section 11(2)(b) was that the monthly rent is Rs.60/- and that the same is in arrears from October 2004 and also that the rent was not paid despite statutory demand notice. 2. The revision petitioner/tenant disputed the allegation. He contended that on 1/9/1990, an agreement for sale and purchase was executed between him and the mother of the petitioner in the RCP under which the building was agreed to be sold to him. According to him, pursuant to that agreement he, being a person in possession in part performance of the agreement for sale, is not liable to be evicted and is not liable to RCR.No.46/2010 2 pay rent also and ever since the date of agreement, he has not paid any rent. The Rent Control Court and the Appellate Authority did not become inclined to accept the above defence mainly on the reason that the revision petitioner was unable to produce any agreement in writing, which alone can enable him to raise a plea based on Section 53A of the Transfer of Properties Act. We are in complete agreement with the view taken by the authorities below in the context of Section 53A of the Transfer of Properties Act. That being so, there is no warrant for interference with the finding that the rent is in arrears as alleged and that the order of eviction is liable to be passed under Section 11 (2)(b) of the Act. But, any order of eviction under Section 11(2)(b) is provisional and can always be got vacated by the tenant by making requisite deposit under Section 11(2)(c). We confirm the order of eviction passed under Section 11(2)(b) and grant the revision petitioner one month's time from today to get the same vacated by making necessary application under Section 11 (2)(c). 3. The substantial ground, on which eviction was sought, was the ground of cessation of occupation. The defence of the RCR.No.46/2010 3 tenant in answer to the above ground was that he has not ceased to occupy the building. He is using the building for conducting the sale of paper and scrap materials. Therefore, it is not necessary for him to be present in the premises always and to conduct the sale everyday. The evidence regarding this ground consisted of the report submitted by an advocate commissioner, who was appointed by the court for the purpose of conducting an immediate local inspection. Even though the commissioner was appointed without notice, at the time of inspection, the revision petitioner was also present at the property. The commissioner reported that there were no signs of regular occupation of the building or conduct of the business in the building for quite some time. Apart from that, PW2; a neighbouring shop keeper and PW3; the advocate commissioner, were also examined. PW1 deposed in terms of the allegation in the Rent Control Petition. Despite cross examination, PWs 1 to P3 maintained that the revision petitioner had ceased to occupy the building continuously for more than six months. As against this, the counter evidence was only the oral evidence of CPW1. Despite challenge, the revision petitioner did not produce any document and much less RCR.No.46/2010 4 accounts book, copy of bills, registers or day books indicating any purchase or sale of old newspapers and scrap materials as claimed by the revision petitioner. The Rent Control Court, on appreciating the evidence, concluded that the revision petitioner had ceased to occupy the building continuously. The Appellate Authority reappraised the evidence and concurred with the conclusions of the Rent Control Court. 4. Having scanned the judgment of the Rent Control Appellate Authority, which under the statutory scheme is the final court on facts, we find that the findings entered therein are founded on evidence. There is no illegality, irregularity or impropriety, as envisaged by Section 20, justifying invocation of the revisional jurisdiction under Section 20. The revision petition necessarily has to fail. We dismiss the revision petition. However, in deference to the last request of Sri.V.B.Premachandran, learned counsel for the revision petitioner that at least one year's time may be given to the revision petitioner for surrendering the premises, we are inclined to grant time till 30/9/2010, but only subject to strict conditions. Accordingly, even as we dismiss the RCR without any order as to RCR.No.46/2010 5 costs, we direct the Execution Court not to order and effect delivery of the building in question to the respondent till 30/9/2010 subject to the following conditions; i). The revision petitioner shall discharge the entire arrears of rent, as found by the Rent Control Court, and also the rent which fell due subsequently within two months from today. ii). The revision petitioner shall file an affidavit within three weeks from today undertaking to discharge arrears of rent, as directed above, and to pay occupational charges at the current rent rate of Rs.60/- regularly as and when the same falls due till the actual surrender is made. It is made clear that the revision petitioner will get benefit of time granted as above, only if he files affidavit as directed above. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk