IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 RCRev..No. 257 of 2003() ------------------------ RCA.144/2001 of ADDL. DISTRICT COURT, VADAKARA RCP.27/1996 of MUNSIFF COURT, NADAPURAM .................... REVISION PETITIONER/APPELLANT/PETITIONER ------------------------------------------------------------ KOVUKKALA RAMLA, D/O. MOIDU, AGED 34 YEARS, RESIDING AIN PILARAYIL AT VANIMEL AMSOM AND DESOM, VATAKARA TALUK. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN RESPONDENT(S): RESPONDENT/RESPONDENT ------------------------------------ PONNANDIYIL MOIDU, S/O. AVULLA, AGED 50 YEARS, BUSINESS, RESIDING IN VELLOOR AMSOM, CHALAPPURAM DESOM, VATAKARA TALUK ADV. SRI.MOHANAN V.T.K. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------- R.C.R.NO.257 OF 2003 ------------------------------------------------- Dated: JULY 24, 2009 ORDER Pius.C.Kuriakose, J. Under challenge in this revision petition under sec.20 is the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority concurrently declining eviction which was sought by the revision petitioner/landlord on the ground of cessation of occupation (clause (v) of sub-sec.(4) of sec.11). The case of the landlord was that the tenant has ceased to occupy the building in question continuously for a period of more than six months without any reasonable cause. The defence of the tenant was that he has not ceased to occupy the building, he is continuing to occupy the building which is being used by the customers of his travel agency business as a waiting place for boarding the vehicles. The evidence on the side of the landlord before the Rent Control Court consisted mainly of his own oral evidence as PW.1 and the oral evidence of PW.2 the advocate R.C.R.NO.257 OF 2003 2 commissioner who submitted Ext.C1 report. On the side of the tenant, apart from himself, another witness was also examined. Ext.C1 commissioner's report was to the effect that for about six months, the rooms were not being used at all. The commissioner had reported about the abundance of cob webs and other signs in the vicinity of the petition schedule building giving some support to the landlord's case that the rooms are not under occupation at all. The commissioner also reported that one Kunjali, a local shop keeper, had informed him that the petition schedule building was not opened by the tenant at all for more than ten months. However, the above Kunjali was not cited or examined as a witness on the side of the landlord. The Rent Control Court on evaluating the evidence concluded that the landlord had not succeeded in establishing that the tenant had ceased to occupy the building in question continuously for a period of more than six months. Though appeal was preferred by the landlord, the Appellate Authority, despite re-appraisal of the evidence, would concur with all the conclusions of the Rent Control Court. It is being aggrieved by the above order that the present revision is filed by the landlord. R.C.R.NO.257 OF 2003 3 2. We heard Sri Lakshmi Narayanan, learned counsel for the revision petitioner, and Mr. V.T.K. Mohanan, learned counsel for the respondent. 3. Mr. Lakshmi Narayanan would read over to us the full text of the advocate commissioner's report and also the oral evidence given by RW.1, the tenant. He highlighted that the tenant had admitted that he did not have a trade license for carrying on any business in the petition schedule building. According to him the evidence was sufficient to hold that the tenant was not in occupation of the building. In the absence of any sufficient reasons pleaded or proved by the tenant, order of eviction should have been passed by the authorities below. Mr. Mohanan per contra would support the findings of the Rent Control Court and the Appellate Authority. He highlighted that the best evidence to prove that the building was not under occupation is the oral evidence of adjacent shop keepers. He pointed out that despite the commissioner's report that Kunjali had told him that the building was not being opened for the past ten months, the landlord did not have the courage to examine Sri Kunjali as a witness. R.C.R.NO.257 OF 2003 4 4. We have considered the rival submissions. In this jurisdiction under sec.20 which is revisional in nature, we are not expected ordinarily to reappraise the evidence and substitute our conclusions on fact for the conclusions entered by the authorities below, especially when those conclusions are founded on evidence. In the instant case the tenant has admittedly been using the petition schedule building as a waiting shed for the passengers who were utilising the services of the travel agency business conducted by the tenant in a nearby building. It is not disputed that the travel agency business is being conducted by the tenant even now. It is true that Ext.C1 report of the advocate commissioner gives some indication that at the time when the inspection was conducted by the commissioner, the building in question was not in occupation. But, in order that the statutory eviction ground under clause (v) of sub-sec.(4) of sec.11 is established, the landlord will have to establish that the tenant has ceased to occupy the building continuously for a period of more than six months without reasonable cause upto the date of commencement of the rent control proceedings. In the instant case, even the commissioner does not report R.C.R.NO.257 OF 2003 5 specifically that the building has not been in occupation for more than six months. In fact, she spoke to two neighbouring shop keepers and only one of them told her that the building was not opened for ten months. The other man's version was that the building was open three months ago. We feel that in the light of the advocate commissioner's report regarding the versions of the neighbouring shop keepers, it was upto the landlord to have examined atleast Sri Kunjali, neighbouring shop keeper, and substantiate the landlord's case that the building was not being opened at all for more than six months. In short, we do not find any illegality, irregularity or impropriety about the findings of the Rent Control Court and the Appellate Authority warranting invocation of the revisional jurisdiction. 5. At the same time we notice that the building in question is in a very important area of Nadapuram, ancient town and court centre. The two rooms together has a carpet area of roughly 400 sq. ft. The current rate of rent at Rs.400/- for the two rooms was fixed in 1986. We are of the view that having regard to the commercial importance of the locality and the locational advantages enjoyed by the building, the rent which the tenant is R.C.R.NO.257 OF 2003 6 paying, is very low. We tentatively refix the rent for the building payable by the tenant at a consolidated amount of Rs.1600/- for the rooms. This tentative refixation of the rent payable by the tenant is subject to the right of either of the parties to move the competent court to have the fair rent fixed in accordance with law. It is made clear that our tentative refixation of the rent payable by the tenant is prospective with effect from 1.8.2009 only. We also make it clear that this judgment will not stand in the way of the landlord seeking to evict the tenant on any other available ground. In the result, the revision is dismissed. There will be no order as to costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-