IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 CRP.No. 2666 of 2002(G) ----------------------- RCA.19/2000 of ADDL. DISTRICT COURT, PARAVUR RCP.23/1996 of MUNSIFF COURT, PARAVUR .................... REVN. PETITIONER(S): RESPONDENTS 1TO 4,6&7/ORIGINAL RES.1 TO 4,6 &7 ----------------------------------------------------------------------- 1. JANAKI W/O. NARAYANAN, THAIPURAYIL, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY. 2. SOMAN S/O. NARAYANAN, THAIPURAYIL, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY. 3. T.N.OMANA LALITHAKSHAN, THAIPURAYIL, MAROTTICHUVAT, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY 4. T.N.SAMALA SUDHAKARAN, VATTEKALIL, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY. 5. T.N.JAYAN, THAIPURAYIL, CHERAKKAKAM KARA VARAPUZHA PAKUTHY. 6. T.N.SABU, THAIPURAYIL, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): APPL.AND 5TH RESP./PETTIONERS AND 5TH RESPONDENT --------------------------------------------------------------- 1. P.P.RAMADASA SARMA, S/O. PADMANABHA MALLAN, PUTHENVEETTIL, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY. 2. P.O.GOVIND MALLAN, S/O.PADMANABHA MALLAN PUTHENVEETTIL, CHERAKKAKAM KARA, VARAPUZHA PAKUTHY. ...2 CRP.2666/02 2 3. P.P.GOPINATHA SARMA, S/O.PADMANABHA MALLAN, PUTHENVEETTIL, CHERKKAKAM KARA, VARAPUZHA PAKUTHY. 4. T.N.SURESH, THAIPURAYIL CHERAKKAKAM KARA VARAPPUZHA PAKUTHY. ADV. SMT.R.MEERA SRI.K.S.BHARATHAN FOR R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/07/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R NO REPRESENTATION TODAY ALSO. C.R.P. IS REJECTED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 26.7.2010 okb /True copy/ P.A. to Judge ORDER ON CMP.NO.6703/2002 IN C.R.P.2666/2002 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 26.7.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ C.R.P.No. 2666 OF 2002 ------------------------ Dated this the 1st day of October, 2010 O R D E R Pius C.Kuriakose, J. In this revision under Section 20 of Act 2 of 1965, the tenants challenge the judgment of the Rent Control Appellate Authority ordering eviction against them on the ground of cessation of occupation under Section 11 (4)(v) of Act 2 of 1965. In the Rent Control Petition, the landlords have invoked the ground of arrears of rent also alleging that the rent is in arrears from 1/11/1982 and that the same was not paid in spite of several demands. The landlords' allegation regarding the ground of cessation of occupation was that the tenants, who are legal heirs of the deceased tenant one Narayanan, ceased to occupy the building continuously for more than one year without reasonable cause. As regard the ground of arrears of rent, the main contention raised was that no notice as contemplated by CRP.No.2666/2002 2 Section 11 (2)(b) was issued to them. It was also contended that the rent was paid promptly till 3/10/1993 when the deceased original tenant passed away. As regards the cessation of occupation, the contention was one of denial and that the first respondent's mother was conducting business in beedi, cigarette, plastic boxes and fruits, etc. with the help of one of her sons and grand children. The Rent Control Court issued a commission for local inspection on the basis of an application submitted by the landlords along with the RCP. The commissioner conducted inspection and filed a report to the effect that he found that the building was closed and that there were signs in the building such as cob webs and rest and dusts, which would indicate that the building was not being occupied at all for about one year. The Rent Control Petition went for trial and the evidence consisted of Exts.A1, C1 commission report and evidence of PWs 1 to 3 and RW1. It was found by the Rent Control Court that no statutory demand notice, as required under the proviso to Section 11 (2)(b), was issued by the landlords and on that reason the Rent Control Court negatived the claim for eviction on the ground of arrears of rent. Coming to the ground CRP.No.2666/2002 3 of cessation of occupation also, the Rent Control Court took the view that the evidence on record was not sufficient to hold that the tenants have ceased to occupy the building continuously for a period of more than six months without reasonable cause. In that view of the matter, the Rent Control Court dismissed the RCP. 2. The Appellate Authority under the impugned judgment made a reappraisal of the evidence. The Appellate Authority concurred with the Rent Control Court on the question of eviction on the ground of arrears of rent. However, the Appellate Authority would rely on the commission report Ext.C1, notice the shift in the stand of the tenants as to the business that was being conduced in the building and mainly on the evidence adduced by RW1, who was one of the sons of the deceased tenant and hold that the eviction ground under Section 11 (4)(v) stood established. Accordingly, eviction was passed on that ground. 3. In this revision under Section 20, the tenants have raised various grounds assailing the judgment of the Appellate Authority. Sri. P.C.Chacko, learned counsel for the Revision Petitioners, would address very strenuous and persuasive CRP.No.2666/2002 4 submissions before us in support of the various grounds raised. The learned counsel argued that initially the burden to show that the tenant had ceased to occupy the building without reasonable cause and that the cessation continue till the commencement of the RCP is on the landlords. That burden has not been discharged by the landlord, according to Mr.Chacko. The learned counsel submitted that Ext.C1 commission report will show that the tenants were in occupation and that repair works were under way in the building. Mr.Chacko, however, conceded that the rent was in arrears and submitted that the revision petitioners are ready and willing to discharge the entire arrears of rent and also to pay enhanced rent with effect from the next month. The learned counsel would strongly argue that the finding of the Appellate Authority that the ground of eviction under Section 11 (4)(v) stood established in the case is contrary to the evidence. 4. Nobody resisted the submissions of Mr.Chacko before us. However, as revisional authority under Section 20 of Act 2 of 1965, this Court is expected to examine the legality, regularity and propriety of the judgment of the Rent Control CRP.No.2666/2002 5 Appellate Authority, which under the statutory scheme is the final court on facts. Since the findings entered by the Rent Control Court and the Appellate Authority are divergent as regards the ground under Section 11 (4)(v), we have reappraised the evidence available on record as well as the pleadings. The pleadings will show that the contention of the revision petitioners was that after the demise of the original tenant, the mother of the first respondent was conducting business in Beedi, cigarette, plastic items, etc. through one of her sons and grand children. RW1, the solitary witness on the side of the tenants is not that son, who his mother claimed is conducting business on behalf of the mother. RW1 is a District Council member of the Communist Party of India and he has no case that he was personally conducting any business. A perusal of his evidence shows that his case is that it is vegetable business that was being conducted. His evidence, however, show that there are documents including sales tax assessment orders which would show that the claim of the tenants that they have conducted business during the relevant period is correct. As rightly observed by the learned Appellate Authority, not even a scrap of CRP.No.2666/2002 6 paper is produced by the revision petitioners before the Rent Control Court to show that their claim that they have been conducting business is correct. True, the initial burden is on the landlord. We are of the view that, such burden was discharged by the landlord in this case by facilitating report by an advocate commissioner on the basis of local inspection and also by adducing oral evidence through PWs 1 and 2. In the teeth of such evidence, the burden was heavy on the tenants to prove that their contention, that business was being actually conducted, is correct. The tenants failed miserably in discharging such burden. In short, there is no illegality, irregularity or impropriety on the findings entered by the Appellate Authority. The revision necessarily has to fail. 5. Sri.Chacko submitted that as of now the tenants are conducting business and requested that at least one year's time be granted. Ordinarily, this Court will not be inclined to grant time to a tenant, who is liable to be evicted on the ground of cessation of occupation. However, considering the persuasive request of Mr.Chacko, we are inclined to grant six months' time from today subject to certain conditions. CRP.No.2666/2002 7 6. The result is therefore as follows; The RCR fail and will stand dismissed. The Execution Court will keep the order of eviction in abeyance till 31/3/2011 subject to the following conditions; i). The revision petitioners shall pay or deposit the arrears of rent, which has fallen due in respect of the building from 1/11/1982 till 30/9/2010 at the rate of Rs.15/- per month, together with interest at the statutory rate of Rs.6% p.a. from the dates of respective default together with a consolidated sum of Rs.500/- towards costs within one month from today and produce receipt before the Execution Court or the Rent Control Court as the case may be. ii). The revision petitioners shall pay occupational charges at the rate of Rs.500/- per month with effect from 1/10/2010 till the date of surrender. iii). The revision petitioners shall file affidavits within one month from today before the Rent Control Court or the Execution Court incorporating an undertaking that they will comply with the two conditions mentioned above. iv). We make clear that the tenants will get benefit of time CRP.No.2666/2002 8 granted above only if all the above conditions are complied with. The Registry will communicate this order to the 1st respondent in his address shown in the judgment of the Appellate Authority. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk CRP.No.2666/2002 9 PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ C.R.P.No. 2666 OF 2002 ------------------------ O R D E R 1ST OCTOBER 2010 CRP.No.2666/2002 10 PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk