IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 RCRev..No. 17 of 2009() ----------------------- RCA.49/2002 of DISTRICT COURT, ALAPPUZHA RCP.34/2000 of PRL.MUNSIFF COURT, CHERTHALA .................... REVISION PETITIONERS/RESPONDENTS/PETITIONERS -------------------- 1. N.S.S.KARAYOGAM NO.823, VAYALAR NORTH REPRESENTED BY ITS PRESENT PRESIDENT P.SUDHEER, KARIKKODATH, VAYALAR, CHERTHALA. 2. SECRETARY, NARAYANA MENON, KOCHU PULLALIL, VAYALAR PO, CHERTHALA. 3. TREASURER P.N., UNNIKRISHNAN M ANNADAYIL VEEDU, VAYALAR P.O.CHERTHALA. BY ADV. SRI.B.PRAMOD RESPONDENT(S)/APPELLANT/RESPONDENT: --------------- GOPALAN NAIR , S/O. ADICHAN, KADALATTU HOUSE, VAYALAR P.O.CHERTHALA. ADV. SRI.P.R.VENKETESH THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 17 OF 2009 ------------------------ Dated this the 15th day of September, 2009 ORDER Pius C.Kuriakose, J. The landlord is in revision, being aggrieved by the judgment of the Rent Control Appellate Authority, under which the order of eviction passed in their favour, on the ground of clause (v) of Sub Section (4) of Section 11 (cessation of occupation) for more than six months continuously without reasonable cause, was set aside. The building in question was let out as per Ext.A1 to the respondent for conduct of chitty business. The allegation in the RCP was that since 10 years prior to 2000, the period of institution of the RCP, the building was not occupied by the tenant without any reasonable cause. The defence was that the allegation of cessation of occupation is false and that the tenant is continuing to occupy the building in question for conducting chitty business. Ext.C1 commission report submitted by the Advocate commissioner appointed by the Rent Control Court and Ext.A3 commission report submitted by the same commissioner RCR.No.17/2009 2 appointed by the Civil Court in a suit filed by the landlord seeking injunction against the tenant from carrying out repairs works in the building were the principal items of documentary evidence relied on by the landlord. On behalf of the landlord, its office bearer was examined as PW1 and the advocate commissioner, who submitted Ext.C1 as well as Ext.A2 was examined as PW2. The principal item of documentary evidence on the side of the tenant was Ext.B3 notice issued in the year 1997 requesting the landlord to carry our repairs and also to facilitate restoration of the electricity connection. Apart from Ext.B3, the tenant also relied on Ext.B2 decree by which the suit filed by the tenant's wife against the landlord was dismissed. The Rent Control Court, on evaluating the evidence, came to the conclusion that the landlord had succeeded in establishing that the tenant has ceased to occupy the building continuously for more than 6 months without reasonable cause and accordingly, ordered eviction under Section 11 (4) (v). 2. Reversing the decision of the Rent Control Court, the RCR.No.17/2009 3 Appellate Authority held that the evidence adduced on the side of the landlord falls short of holding that the tenant ceased to occupy the building continuously during the period of 10 years alleged by the landlord. According to the Appellate Authority, the landlord's allegation of cessation of occupation for 10 years stands disproved by Ext.B3 notice and what the Appellate Authority describes as the actual carrying out of repairs work in the building by the tenant in the year 1997. The Appellate Authority would accept the tenant's explanation regarding the situation that the electricity supply to the building is disconnected and hold that since the tenant is carrying on business during day time, the tenant did not find it absolutely necessary to get electricity connection restored. According to the Appellate Authority, the entire burden of proving that the eviction ground was established was on the landlord and such burden was not discharged by producing Ext.C1 and Ext.A2. According to the Rent Control Appellate Authority, both Ext.C1 and A2 were reports based on surprise inspections and since those reports are RCR.No.17/2009 4 to the effect that the premises were found closed, the commissioner, who was unable to enter the building, could not have responsibly reported that the building is not under occupation. The Appellate Authority went to the extent of holding that the circumstance, that the landlord did not invoke the ground of arrears of rent for evicting the tenant despite the allegation that payment of rent was defaulted since 1988, is a circumstance militating against the existence of ground under Section 11(4) (v). In the above view of the matter, the Appellate Authority set aside the order of the Rent Control Court and allowed the RCA, dismissing the Rent Control Petition. It is challenging the judgment of the Rent Control Appellate Authority that the present revision is filed raising various grounds. 3. We have heard the submissions of Sri.B.Pramod, learned counsel for the revision petitioners and also those of Sri.P.C.Chacko, learned counsel for the respondent. 4. Sri.Pramod would take us through the entire evidence adduced in the case by the parties, particularly the evidence of RCR.No.17/2009 5 CPW1 the tenant. According to him, there was no warrant at all for interfering with the eviction order passed by the Rent Control Court by the Appellate Authority and the Appellate Authority set aside that order adopting an unsound reasoning. The burden of proof was wrongly cast by the Appellate Authority. According to the learned counsel, the landlord had only the initial burden, which stood discharged adequately once Ext.C1 report was submitted by the Commissioner. In the teeth of Ext.C1, the onus shifted to the tenant to prove that he has been occupying the building during the period of six months prior to the institution of the RCP for the purpose of conducting chitty business. 5. Resisting all the submissions of Sri.Pramod, the learned counsel for the respondent/tenant Sri.P.C.Chacko would support the judgment of the Appellate Authority on the various reasons stated therein. Ext.C1 as well as Ext.A2 were on the basis of surprise inspections conducted by the advocate commissioner without notice to the tenant. Those reports at best only show that the building in question remained closed at the time of RCR.No.17/2009 6 inspections. The landlord's allegation was that the building was not occupied by the tenant for the period of 10 years from 1990 and having raised such an allegation, it was for the landlord to adduce evidence and substantiate the same. Referring to Ext.B3 notice, Sri.Chacko submitted that a tenant, who was ceased to occupy the premises, will never cause such a notice to the landlord. It is not as though the tenant did not take any steps for restoration of the electricity connection in the building. Demand was made to the landlord in that regard. It is the landlord, who failed to accede to the request, and such a landlord should not be allowed to take advantage of his own failure. Reminding us of the contours of this court's jurisdiction under Section 20, Sri.Chacko submitted that the judgment of the Appellate Authority, which is the final court on facts under the statutory scheme, cannot be said to be vitiated to the extent of justifying invocation of the revisional jurisdiction of this court. 6. We have very anxiously considered the rival submissions addressed at the Bar in the light of the relevant statutory RCR.No.17/2009 7 provisions. We have kept in mind judicial precedents governing the legal and factual situation. It is trite that occupation, in the context of Section 11 (4) (v) with reference to a building let out for commercial purpose, means occupation by conducting trade or business to conduct which the building was let out to the tenant. Ext.A1 is admittedly the governing lease deed. On the terms of Ext.A1, the building was let out to the respondent/ tenant for the purpose of conducting chitty business. CPW1 also had admitted that the purpose of the lease was conduct of chitty business. Admittedly the chitty, which was conducted last by the respondent, terminated some two years prior to the filing of the Rent Control Petition. The case of the tenant seen accepted by the Appellate Authority is that after the last chitty is terminated, the business will continue since the amounts due from prized/auctioned chittals are to be recovered by the foreman. If, as a matter of fact, the business of recovering the amounts due from the subscribers is being carried on by the respondent in the petition schedule building, the respondent RCR.No.17/2009 8 should have documents at his disposal to prove the same. We do not find even a scintilla of documentary evidence adduced by the respondent for proving that he is carrying on the business of recovering the dues from his customers. In fact, the only item of documentary evidence adduced by the tenant to substantiate his contention that he has in occupation of the building is Ext.B5 series, which are receipts issued by the landlord in the year 1990 (10 years prior to the filing of the RCP) against the payment of two months rent by the tenant. In other words, it is clear from Ext.B5 series that the practice obtaining between the parties was that whenever rent is paid, the receipt will be duly issued. It was submitted by Sri.Pramod that despite the averment in the RCP itself was that the rent is in arrears from 1998, the landlord did not invoke Section 11 (2) (b) as a eviction ground only because the quantum of arrears was not much and the landlord was more enthusiastic in getting the building back. According to us, the allegation of the landlord that the tenant has been a chronic defaulter in the matter of payment of rent stands RCR.No.17/2009 9 proved in this case. 7. The electricity supply to the petition schedule building, which at the time of letting was an electrified one, stood disconnected obviously due to the reason of non payment of power charges prior to the institution of the RCP i.e. at any rate prior to Ext.B3 issued in the year 1993. We are not at all impressed by the explanation offered by the tenant before us through his learned counsel that since the chitty business is being conducted only during the day time, the tenant could very well continue to do the business even without electricity. The circumstance that serious steps were not successfully pursued by the tenant for restoration of the electricity supply in the building is a circumstance, which gives credence to the landlord's case that the tenant has not done any business in the petition schedule building during the statutory period. So also, the circumstance that the tenant kept the rent in arrears heavily is a circumstance supporting the landlord's case that the tenant was not utilising the building for the purpose of conduct of RCR.No.17/2009 10 business. It is true that both Exhibits (Ext.C1 & A2) were reports submitted by the advocate commissioner on the basis of the surprise inspections and the inside portion of the room was not actually inspected by the commissioner. But, the inferences drawn by the commissioner are based on what was noticed by him on inspecting the building and precincts from the outside. The commissioner reported that the front door of the building remained closed. The hinges of the windows and even the odambal of the front door was rusty and that there were cobwebs on the odambal of the front door. Heaps of dust were found on the front open veranda of the building and that on the back yard of the building grass had grown up to the height of half a feet. If it were the tenant's case that on inspection of the inside of the building signs of actual occupation during the statutory period would have been noticed, nothing prevented the tenant from seeking appropriate directions from the Rent Control Court to the very same Commissioner to conduct such an inspection. The commission reports, according to us, offer RCR.No.17/2009 11 atleast primafacie evidence in support of the landlord's case that the building is not under occupation. The circumstance that no documentary evidence was produced by the tenant to show that the building is used for conduct of chitty business and that the tenant did not take any serious steps for restoring the electricity connection and the further circumstance that the rent was kept in arrears for years together, were all circumstances supporting the conclusion of the Rent Control Court that the statutory eviction ground under Section 11 (4) (v) is established. The appreciation of the evidence by the Rent Control Appellate Authority, in our opinion, was not proper. Though it is true that the initial burden of proof is on the landlord, in the present case, where both sides were adduced evidence, the onus has certainly shifted to the tenant to prove that the building is under user for conduct of chitty business and such onus has not been discharged by the tenant by adducing the best evidence. Interference by the Rent Control Appellate Authority with the decision of the Rent Control Court was quite unwarranted. RCR.No.17/2009 12 8. The result of the above discussion is that we allow this revision, setting aside the judgment of the Rent Control Appellate Authority and restoring the order passed by the Rent Control Court. Eviction is ordered against the respondent under Section 11 (4) (v). In the nature of the ground, on which eviction is ordered, we would not have normally become inclined to grant time to the respondent to vacate the premises. However, taking into account the very appealing submission of Sri.Chacko that substantial amounts are due to the respondent from his customers and that abrupt eviction will result in a situation compelling the respondent to write off these amounts, we are inclined to grant time till 31/3/2010 from today, even as we pass the order of eviction. Revision petition is allowed and the order of eviction is passed under Section 11 (4) (v). The respondent is granted time upto 31/3/2010 from today to vacate the premises subject to the following conditions; i). The entire arrears of rent due in respect of the petition schedule building from RCR.No.17/2009 13 1/1/1990 less any amount paid by the respondent against the receipts together with interest at the rate of 6% p.a. from dates of default shall be paid by the respondent to the revision petitioner within six weeks from today. ii). The respondent shall file an affidavit before the Execution Court or the Rent Control Court, as the case may be within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the revision petitioner on or before 31/3/2010. It will be undertaken through the affidavit that occupational charges at the current rent rate will also be paid as and when the same falls due for the period upto 31/3/2010. It is made clear that the respondent will be eligible for RCR.No.17/2009 14 the benefit of time granted under this judgment only if he complies with the above directions. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk