IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 RCRev..No. 169 of 2007(A) ------------------------------ RCA.1/2006 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.130/2004 of RENT CONTROLLER/PRL.M.C.KOZHIKODE-I .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- SYED ABOOBACKER BAFAKHI THANGAL, AGED 53 YEARS,S/O.SYED ABDURAHIMAN BAFAKHI THANGAL KOYILANDY AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ RESPONDENT(S)/PETITIONER/PETITIONER: --------------------------------------------------- P.P.HAMZA,DRIVER, KERALA RUBBER BOARD OFFICE, PULIKKAL TOWER,COURT ROAD, MANJERI,MALAPPURAM-676 121. ADV. SRI.V.S.CHANDRASEKHARAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/02/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 169 OF 2007 = = = = = = = = = = = = = = = = Dated this the 25th day of February, 2011. O R D E R PIUS C. KURIAKOSE,J. The landlord is the revision petitioner. He is aggrieved by the judgment of the Rent Control Appellate Authority allowing appeal filed by the tenant and vacating the order of eviction which had been passed in his favour by the rent control Court on the grounds of cessation of occupation u/s 11(4)(v) and misuse of the building u/s 11(4)(ii). 2. Having gone through the judgment of the Appellate Authority we do not find any illegality, irregularity or impropriety as envisaged by S.20 about the finding of the Appellate Authority to the extent it relates to the ground u/s 11(4)(ii). R.C.R. NO. 169 OF 2007 -:2:- 3. According to us the question that seriously arises in this R.C.R. is whether the learned Appellate Authority was justified in not concurring with the decision of the rent control Court to order eviction on the ground of cessation of occupation. We shall therefore refer to the pleadings of the parties in the context of that ground only. 4. Landlord alleged that the tenant who was conducting business in PVC pipes etc. in the petition schedule premises had ceased to conduct the said business as he has secured employment as a driver with the Rubber Board. The defence of the tenant was one of total denial. The defence was that his business is seasonal, that he belongs to Lakshadweep and that he is mostly engaged in exporting PVC pipes and such other materials to Lakshadweep. But such operations R.C.R. NO. 169 OF 2007 -:3:- are not possible in Lakshadweep during the monsoon season due to rough weather. Thus the defence was that the tenant though not everyday, was conducting business during good season. 5. At the time of commencement of the RCP the Court appointed a Commissioner who conducted a surprise inspection and submitted a report. The report was to the effect that the premises were found locked up, that there was lot of dust and cobwebs seen hanging down from the roof and the walls of the building as seen by the Commissioner through the window of the building. The Commissioner was informed by a neighbouring hotel owner that the room was closed down for more than six months. It was reported that going by the appearances, the building was not in use for a long period. The evidence at trial consisted of PW1, landlord and PW2, the R.C.R. NO. 169 OF 2007 -:4:- Commissioner and A1, kychit. Apart from C1 Commissioner's report, the solitary item of evidence on tenant's side is the oral evidence as RW1. Importantly no document at all was produced by the tenant. 6. The learned Rent Control Court on appreciating the evidence would hold that grounds for eviction u/s 11(4)(v) are established and ordered eviction on that ground. The learned Appellate Authority under the impugned judgment has reversed that decision and dismissed the RCP. 7. In this revision various grounds are raised and Sri. K.M.Firoz, learned counsel for the revision petitioner addressed us on the basis of this ground. According to him, the learned Appellate Authority was not at all justified in interfering with the order of R.C.R. NO. 169 OF 2007 -:5:- eviction passed u/s 11(4)(v). The tenant did not have a case that he was getting business done through somebody else and he did not dispute that he was employed full time as driver with Rubber Board. Exts.C1 and C1(a) offers prima facie evidence in support of the landlord's case and the initial burden on the landlord shifted to the tenant to show that he is actually conducting business at least during the good seasons. Not even a scrap of paper is produced to show that the tenant has conducted the business at any time. 8. We have anxiously considered the submissions of Mr.Firoz. We have gone through the judgment of the Appellate Authority and the order of the rent control Court. Without meaning any disrespect to the Appellate Authority we feel that the approach of the R.C.R. NO. 169 OF 2007 -:6:- learned Appellate Authority was pedantic. The question that arose before the learned Appellate Authority was whether the landlord's allegation that the tenant had ceased to occupy the building and had not conducted any business in the building during the statutory period of six months prior to the institution of RCP was correct. It is the tenant's own case that he secured an employment with Rubber Board. He himself used to attend to his business in the petition schedule building which was stationery business at the beginning and later converted to business in PVC pipes. A person who is employed as a driver in Rubber Board will not be able to attend to the business at least during the duty hours. Secondly the tenant does not have a case that somebody else is managing the business on behalf of the tenant. The tenant's R.C.R. NO. 169 OF 2007 -:7:- case on the contrary is that barring off-season he continues to export PVC pipes to Lakshadweep where he belongs. If, as a matter of fact, the tenant is conducting the business of exporting PVC pipes to Lakshadweep, there should have been documents to prove the tenant's claim. Not even a scrap of paper is produced by the tenant to support his case that he is conducting the export business. 9. One of the circumstances highlighted before the learned Appellate Authority was that the tenant did not produce receipts against payment of charges to the K.S.E.B. The learned Appellate Authority repels this argument by pointing out that it is not clear whether the premises are electrified. As rightly argued by Sri.Firoz, Ext.A1 will show that the building was electrified and obligation to pay current R.C.R. NO. 169 OF 2007 -:8:- charges is on the tenant. But as observed by the learned Appellate Authority in the nature of business conducted by the tenant consumption of electricity may not be indispensable. But what appeals to us more is the fact that the tenant who claims to be conducting business during normal seasons has not produced any document to support his version. 10. Ext.C1 report is not relied upon by the Appellate Authority also for the reason that Ext.C1 is the result of a surprise inspection. But, Ext.C1 was proved by examining PW2, the Commissioner. PW2 deposed in terms of Ext.C1 report. The report was certainly not to the effect that the building was not in use for six months but it was to the effect that the building by appearance was not in use for a long period. The signs of non-occupation reported by R.C.R. NO. 169 OF 2007 -:9:- the Commissioner are referred to by the learned District Judge. As regards the report that the walls of the room wore a faded look the learned authority observed that it is the duty of the landlord to keep the walls of the building shiny. Cobwebs and dust were also noticed by the Commissioner. The learned Appellate Authority would discard these aspects saying that the tenant is conducting business not everyday but only during the seasons. According to us the appreciation of evidence, oral and circumstantial, available in this case by the learned Appellate Authority was not proper. There was no warrant for interfering with the decision of the learned rent control Court's order to the extent the same related to S.11(4) (v) of the Act. R.C.R. NO. 169 OF 2007 -:10:- 11. Another aspect highlighted by the learned Appellate Authority for vacating the order of eviction passed by the Rent Control Court u/s 11(4)(v) is that the tenant had secured employment with Rubber Board in 1996 and if the allegation regarding cessation of occupation is correct the rent control petition should have been instituted in 1996 itself or during early 1997. The delay of seven years in moving the rent control Court for eviction on the ground of cessation of occupation in the view of the learned Appellate Authority will show that the landlord's claim in this regard are not meritorious. The Kerala Act 2/65 does not prescribe any period of limitation for instituting eviction petitions whether it be on the ground under S.11(4)(v) or any other ground u/s 11. When an eviction petition is made before R.C.R. NO. 169 OF 2007 -:11:- a Rent Control Court claiming existence of eviction grounds the authorities under the Act are expected to hold enquiry and come to a decision whether those grounds are established on the evidence which came on record. In the instant case the strong circumstances that the tenant who is claiming to be conducting business in exports at the relevant time did not produce any document to support the above claim and was insisting that the authority should accept his ipse dixit, was unfortunately not noticed by the Appellate Authority. According to us as emerging from the evidence on record the version of the landlord was much more probable than that of the tenant. The learned Appellate Authority ought not have interfered with the order passed by the Rent Control Court u/s 11(4)(v) of the Act. R.C.R. NO. 169 OF 2007 -:12:- 12. The result of the above discussion is therefore as follows. The RCR is allowed. The order of the Rent Control Court so far as it relates to the order u/s 11(4)(v) is set aside and the order of the Rent Control Court which relates to that ground is restored. Respondent is directed to put the landlord in possession of the building within three months from today. This judgment, however, will not stand in the way of respondent applying to the execution Court for grant of three more months time than what we have granted for vacating the premises. PIUS C. KURIAKOSE,JUDGE. N.K. BALAKRISHNAN,JUDGE. ul/-