IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 RCRev..No. 8 of 2004() ---------------------- RCA.168/1999 of DISTRICT COURT, THRISSUR RCP.40/1997 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT IN RCA:PETITIONER RCP: -------------------------------------------------------------------------------------------- JOHNSON, S/O. MAPRANAM ANTHAPPAN, RESIDING AT KANNAMKULANGARA, CHIYYARAM VILLAGE, THRISSUR TALUK. BY ADVS. MR.V.CHITAMBARESH, MR.T.C.SURESH MENON, SMT.M.R.VALSA, MR.SREEKANTH.K.R, SMT.G.GEETHISHA. RESPONDENT(S): 1ST RESPONDENTS IN RCA:1ST RESPONDENT IN RCP: 2ND RESPONDENT IN RCA:2ND RESPONDENT RCP: --------------------------------------------------------------------------------------------------------- 1. K.L. PAUL, PROPRIETOR, KUNNATH HARD WARES, 25/1861, THRISSUR MUNICIPALITY, THRISSUR. 2. K.L. CHACKO, PROPRIETOR, KUNNATH HARD WARES, 25/1861, THRISSUR MUNICIPALITY, THRISSUR. BY ADV. MR.G.SREEKUMAR (CHELUR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/08/2009 ALONG WITH RCR NO. 9 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------- RCR Nos.8 & 9 of 2004 ------------------------------------------- Dated this the 20th day of August, 2009 JUDGMENT Pius C.Kuriakose,J. The landlord is in revision in both these petitions under Section 20 of the Act II of 1965. He sought eviction of the respondent invoking the grounds of cessation of occupation of Section 11(4)(v) and misuser of the building, in such a manner as to produce the value and utility of the building materially and permanently. The pleadings have been narrated almost accurately by the Rent Control Court as well as the Appellate Authority and we do not propose to narrate them over again. The Rent Control Court allowed the petition under Section 11(4)(v) and dismissed the petition under Section 11(4)(ii). The landlord preferred appeal RCA No.168 of 1999 against the order declining eviction under Section 11(4)(ii). The tenant preferred Appeal RCA No.183 of 1999 against order of eviction under Section 11(4)(v). Both the appeals RCR 8 & 9 of 2004 2 were considered by the Rent Control Appellate Authority and by the judgments which are impugned in these revisions, the appeal preferred by the tenant was allowed and the appeal preferred by the landlord was dismissed. Thus, the rent control petition filed by the revision petitioner was dismissed completely under the judgment of the Rent Control Appellate Authority. 2. Sri.V.Chitambaresh, the learned senior counsel for the petitioner/landlord and Sri.G.Sreekumar, the learned counsel for the contesting second respondent/ tenant addressed us very extensively assailing the decision of the Appellate Authority and supporting the same respectively. We are of the view that, having regard to the revisional jurisdiction under Section 20, there is no warrant at all for interfering with the decision concurrently entered by the authorities below that the petitioner is not entitled for an order of eviction on the ground under clause 2 of Sub Section 4 of Section 11. We, therefore, confirm the decision of the Rent Control Appellate Authority confirming the order of the Rent Control Court RCR 8 & 9 of 2004 3 declining eviction under Section 114(ii). 3. In fact, more forceful arguments were addressed before us by the learned senior counsel for the petitioner Sri.V.Chitambaresh, in the context of the eviction sought under Section 11(4)(v). We were taken through the pleadings and to the various items of evidence including the Commissioner's report Exts.C1 and C2. Mr.Sreekumar also did not lag behind in drawing our attention to the various items of evidence which are in his client's favour. But, we notice that the Appellate Authority has come to the conclusion that the tenant has not ceased to occupy the premises on the reason that the evidence will show that the premises continued to be occupied by the tenant as a storage place for his merchandise. In other words, the view of the Appellate Authority is that the occupation of the premises as a storage place for his stock in trade, i.e. scrap iron and such things, will amount to occupation for the purpose of clause 5 of Sub Section 4 of Section 11. But it is noticed that it is nobody's case that the purpose of lease was for RCR 8 & 9 of 2004 4 use as godown or as storage place. On the contrary, it is common ground that the purpose of the lease was conduct of trade in scrap iron. The tenant has asserted through pleadings and in evidence also that he has conducted actual business by selling scrap iron from the premises. The tenant has claimed in his evidence that he was assessed to sales tax. The Rent Control Court has actually drawn adverse inference against the tenant for not producing the best evidence which would substantiate his claim that he has carried on actual sale of scrap iron in the petition schedule premises. The documents like Day Books, Bill Books etc. put in evidence by the tenant do not show that they pertain to the business carried on in the petition schedule premises. In response to a query by us Mr.G.Sreekumar submitted that if an opportunity is given, the tenant/respondent may be able to produce the documents like the Sales Tax Assessment orders pertaining to the period 31.3.1996 to 31.3.1997, the monthly returns furnished to the sales tax authorities during that period and other documentary evidence which RCR 8 & 9 of 2004 5 will reveal that during the above period of one year the tenant has conducted business in the petition schedule building. We feel that an opportunity can be given to the tenant for production of such documentary evidence. 4. At the same time we notice that the monthly rent of Rs.32.50 which is being paid by the respondent to the landlord for the building which is situated in a commercially very important area of Thrissur Municipal Corporation, is ridiculously law. According to us, if the building is let out now, it may fetch at least around Rs.1,000/- per mensum. Therefore, we are inclined to afford an opportunity to the respondent for production of evidence, as indicated above only subject to fixation of a tentative fixation of the rent payable by the tenant hereafter. We re-fix the rent payable by the tenant for the petition schedule building prospectively with effect from Ist September 2009 at Rs.500/- per mensum. This tentative fixation by us is without prejudice to the right of either of the parties to have the fair rent fixed by a competent court, in accordance with law. RCR 8 & 9 of 2004 6 5. The result of the above discussion is therefore as follows:- The order of the Rent Control Court and the judgment of the Rent Control Appellate Authority to the extent they pertain to the decision taken on the ground under Section 11(4)(v) are set aside. RCP No.40/1997, to the extent the ground under Section 11(4)(v) is invoked is remanded to the Rent Control Court. That court is directed to afford an opportunity, after the parties enter appearance to the respondent for production of documentary evidence like sales tax assessment orders, monthly returns submitted to the sales tax authorities in respect of the business carried on in the petition schedule building during the financial year 1996- 1997. If documentary evidence is produced by the respondent, an opportunity will be given to the landlord also to produce counter documentary evidence. Production of documents shall include facilitating such production on summons. The RCR 8 & 9 of 2004 7 parties will not be permitted to adduce oral evidence. Once further evidence is adduced as above, the learned rent control court will take a fresh decision in the RCP on the basis of the entire evidence which is available on record after hearing both sides, in accordance with law. Since the RCP is of the year 1997, the learned Rent Control Court is directed to give top priority to this case and ensure that the revised judgment is passed within three months of the parties entering appearance pursuant to this remand. The parties will enter appearance before the Rent Control Court, Thrissur on 28.8.2009. Transmit the records forthwith to the Rent Control Court. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE css/