IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 RCRev..No. 320 of 2005() ------------------------ RCA.3/2000 & RCA 6/2000 of DISTRICT COURT, KASARAGOD RCP.11/1998 of PRL.MUNSIFF, KASARAGOD .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS ------------------- 1. SADANANDA. 2. K.GIRIJA. 3. HEMALATHA. 4. K.JANARDHANA. 5. SHARMILA. 6. K.USHA, NO.2 IS THE WIDOW AND 1 AND 3 TO 6 ARE THE CHILDREN OF LATE KRISHNAN, RESIDING AT PAYICHAL HOUSE, SANNA KUDLU IN KUDLU VILLAGE AND POST, KASARAGOD TALUK. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT/RESPONDENT/APPELLANT/PETITIONER: --------------- ASHOK KAMATH, S/O.K.GOPALAKRISHNA KAMATH, RESIDING AT KARANDAKKAD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, P.O.KASARAGOD. ADV. SRI.P.V.KUNHIKRISHNAN SRI.P.V.JAYARAJAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/08/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.2322/2005 IN RCR.320/2005 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 3.8.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.320 of 2005 ---------------------------------- Dated this the 3rd day of August, 2010 O R D E R ---------------- Pius C.Kuriakose,J. The tenants are in revision. They challenge the order of eviction concurrently passed against them on the ground of cessation of occupation under Section 11(4)(v) and the order of eviction passed for the first time by the Appellate Authority under Section 11(4)(ii). We shall deal first with the order of eviction concurrently passed on the ground of cessation of occupation. It was practically admitted by the tenants that the building which was let out originally for the conduct of hotel business was not being used for quite some time prior to the filing of the Rent Control Petition for doing any business. Of course, the allegation that the tenants have ceased to occupy the building continuously for more than six months was disputed in the objection. Nevertheless it was not contended that it is on account of a reasonable RCR.320/05 2 cause that the tenants is not doing business in the building. It is trite by decisions of this court that as far as a commercial building is concerned, occupation for the purpose of Section 11(4)(v) means occupation by conducting business. There was evidence before the Rent Control Court on the side of the landlord only. Appreciating that evidence which consisted of Exts.A1 to A7, B1 to B7, oral evidence of PW1 and report submitted by an Advocate Commissioner appointed at the instance of the landlord the Rent Control Court concluded that the landlord was successful in proving existence of ground under Section 11(4)(v). 2. We have scanned the judgment of the Appellate Authority. We find that the Appellate Authority had made a thorough re-appraisal of the evidence before concurring with the above conclusion of the Rent Control Court. 3. We shall now deal with the eviction ground under Section 11(4)(ii). Here again, it is the judgment of the Appellate Authority which under the statutory scheme is the final authority on facts that is to be considered. We find that the Appellate Authority made a thorough re-appraisal of the entire evidence available in the case and found that RCR.320/05 3 substantial alterations have been made without consent of the landlord by the tenants in the building. The Appellate Authority noticed that these alterations may bring some benefit to the tenants for conducting the business of hotel. But, according to the Appellate Authority. the question as to whether value and utility of the building is reduced, is to be considered through the perspective of the landlord. We find that it is considering the above question through the above perspective that the Appellate Authority answered that the value and utility of the building has been materially and permanently reduced due to the unauthorised action of the tenants. It was found by the Appellate Authority that the tenants did not adduce even formal counter evidence. In other words, it was noticed that there was weight of evidence only on the side of the landlord and that there is no rebuttal evidence at all from the side of the tenants. Under such a situation we cannot find any illegality, irregularity or impropriety in the conclusion arrived at by the Appellate Authority regarding the ground under Section 11(4)(ii) also. As for the findings in the context of the ground under Section 11(4)(v) also, we do not find any illegality, RCR.320/05 4 irregularity or impropriety as envisaged by Section 20. the revision necessarily has to fail. 4. But Sri.Gowri Shankar Rai, learned counsel for the revision petitioners submitted that after the appeal was disposed of the tenants have started conducting business though not the original hotel business. According to him, the tenants are presently eking out their livelihood by conducting business in the schedule premises. As a last plea, the learned counsel requested that at least an year's time be granted to surrender the building. The above plea was stiffly opposed by Sri. P.V.Kunhikrishnan, learned counsel for the respondent. However, we feel that on the totality of the circumstances attendant on this case there is justification for granting time to the revision petitioners till 31.3.2011 to surrender the premises subject to conditions. Result of the above discussion is, therefore, as follows: RCR is dismissed confirming the order of eviction passed under Section 11(4)(v) and 11(4)(ii). The execution court is directed not to order delivery of the petition schedule building till 31.3.2011 subject to the following condition: RCR.320/05 5 The second revision petitioner will on her personal behalf as well as on behalf of the other revision petitioners, who are her children, file an affidavit within one month from today before the execution court or the Rent Control Court as the case may be undertaking to give peaceful surrender of the building to the respondent on or before 31.3.2011. Through this affidavit itself it will be undertaken that they will discharge arrears of rent, if any due in respect of the building, within one month and will pay occupational charges at every month at the current rent rate till they give actual surrender. It is made clear that the revision petitioners will get benefit of the time granted by this order only if the affidavit is filed on time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb