IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 RCRev..No. 29 of 2009(C) ----------------------------- RCA.16/2007 of ADDL. DISTRICT COURT, ALAPPUZHA RCP.61/2005 of RENT CONTROL COURT,ALAPPUZHA .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER ----------------------------------------------------------------- K.R. SASIDHARAN, S/O. RAGHAVAN VAIDHYAN, A.P. MEDICAL HALL, ROOM NO. XX/196, CIVIL STATION WARD, NEW BAZAR. BY ADV. SRI.K.V.SADANANDA PRABHU SRI.T.GOPALAKRISHNAN RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------------------- MUHAMMED IBRAHIM @ ASHIK, AGED 8 (MINOR), REP. BY HIS FATHER, KABEER, THAIPPARAMBIL VELLAKKINAR WARD, ALAPPUZHA, NOW RESIDING AT SIVA SADANAM, CHOKALINGA PURAM, VELLAKKINAR WARD, ALAPPUZHA. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.29 of 2009 ------------------------------------------------ Dated this the 17th day of March, 2011 ORDER Balakrishnan, J The tenant is in revision. He challenges the order of eviction on the ground of cessation of occupation under Section 11(4)(v) of the Act. It was contended that the petition schedule building was leased out to the revision petitioner for sale of Ayurvedic medicine. The RCP was filed on 21/10/05. According to the landlord, the tenant ceased to occupy the petition schedule building for more than six months without any reasonable cause and thus, he claimed eviction. 2. The tenant resisted the petition contending that from 25/10/05 to 28/10/05 he was laid up due the abdominal disorder and that was the reason why the shop remained closed. It was contended that when the Advocate Commissioner inspected the shop room tyres, tubes and other waste materials were happened R. C. R. No.29 of 2009 -2- to be seen on the Verandah since he was absent during those days as he was ill. The allegation made by the landlord that the petition schedule building was ceased to be occupied for more than six months was denied by the tenant. 3. The Rent Control Court after analysing the oral and documentary evidence, especially the reports of the Advocate Commissioner found that the there is sufficient evidence to come to the conclusion that the tenant ceased to occupy the petition schedule building for more than six months without any reasonable cause and thus, eviction was ordered. The learned Appellate Authority after re-appreciating the evidence concurred with the order passed by the Rent Control Court. 4. Sri.K.V.Sadananda Prabhu, the learned counsel for the tenant would submit that in the relief portion of the RCP it was not specifically stated that the eviction was sought under Section 11(4)(v) of the Act. But on going through the petition it is seen that the petition was filed under Section 11(4)(v) also besides R. C. R. No.29 of 2009 -3- Section 11(3) and 11(8) of the Act. Not only that in the body of the petition detailed averments are seen mentioned with regard to the non-occupation of the petition schedule building for more than six months. Therefore, the non-inclusion of the Section 11 (4)(v) in the relief portion cannot be a ground to decline the relief sought for. 5. It was submitted that the Advocate Commissioner visited the property only on 28/10/05 after six days of the filing of the RCP and so there is no evidence to show that as on the date of filing of the RCP, the building remained closed. But in this connection it was pointed out that when a notice was sent to the tenant in May, 2005 the notice could not be served on the revision petitioner even though effort to serve the notice was made by the postman on four or five days, since he was not available to be served in that address. Again when the notice/summons was issued from the court directing his appearance in the court in the RCP, then also the summons could R. C. R. No.29 of 2009 -4- not be served on the revision petitioner as the petition schedule building was seen to be locked. It is in these circumstances the observations made by the Advocate Commissioner have to be analysed. 6. It was observed by the Advocate Commissioner that the waste materials and other articles were seen dumped on the Varandah and that the state of affairs obtained at that time did give a clear indicia as to the non-occupation of the building for quite a long time. The Commissioner inspected the premises on 27/10/05 and also on 16/01/2006. On those occasions, the shop room was seen to be closed. If the petition schedule building was in fact occupied for sale of Ayurvedic medicines, the bill book, account book etc. would have revealed such particulars. No such record was produced by the tenant. It speaks volumes. No iota of evidence could be produced by the tenant to prove that during the relevant period business was conducted in the tenanted building. So considering all those aspects the Rent Control Court R. C. R. No.29 of 2009 -5- came to the conclusion that the tenant has ceased to occupy the petition schedule building for more than six months. The learned Rent Control Appellate Authority re-appraised the evidence and came to the same conclusion. 7. Having gone through the order of the Rent Control Court and the judgment of the Appellate Authority, we find no illegality, irregularity or impropriety in the orders passed by those authorities. 8. Therefore, the revision fails and is dismissed accordingly. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.29 of 2009 -6-