IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 RCRev..No. 22 of 2008() ----------------------- RCA.153/2003 of ADDL. DISTRICT COURT (ADHOC), THALASSERY RCP.34/2002 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER/APPELLANT/COUNTER PETITIONER -------------------------------------------------------- 1. JANAKI, W/O LATE MOORKOTH BALAKRISHNAN, AGED 51 YEARS, KUNHIMANGALAM, P.O.KUNHIMANGALAM, KANNUR DISTRICT. 2. NAVEEN, S/O LATE MOORKOTH BALAKRISHNAN, AGED 29 YEARS, -DO- 3. GAYATHRI, D/O LATE MOORKOTH BALAKRISHNAN AGED 22 YEARS, -DO-. BY ADV. SRI.BLAZE K.JOSE RESPONDENTS: RESPONDENT/PETITIONER ---------------------------------- 1. P.M.KUNHIRAMAN, S/O LATE KANNAN, AGED 71 YEARS, 'SREE NIVAS', THAYINERI P.O., PAYYANNUR. 2. KUTHOOR NARAYANI AMMA, W/O P.M.KUNHIRAMAN, AGED 57 YEARS, -DO- -DO- 3. NITHIN, S/O LATE MOORKOTH BALAKRISHNAN, AGED 27 YEARS, KUNHIMANGALAM, P.O.KUNHIMANGALAM, KANNUR DISTRICT. 4. MURALEEDHARAN KUTHUR, S/O P.M.KUNHIRAMAN OF -DO- -DO- RCR 22/08 2 5. RAGHUNATH.K, S/O P.M.KUNHIRAMAN, OF -DO- -DO-. R4 & R5 BY ADV. SRI.V.N.RAMESAN NAMBISAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON 6/2/2008 PASSED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.22 of 2008 ======================== Dated this the 6th day of February, 2008. ORDER Ravindran,J. Respondents 1, 2 and 4 in R.C.P.No.34 of 2002 on the file of the Rent Control Court (Munsiff), Payyannur are the petitioners in this revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act"). Respondents 1 and 2 herein as land lords sought eviction under Sections 11(2)(b) and 11(4)(v) of the Act. The prayer for eviction under Section 11(2)(b) of the Act was not pressed. By order passed on 22.3.2003, the Rent Control Court ordered eviction of the petitioners and the third respondent herein under Section 11(4)(v) of the Act. The petitioners herein thereupon filed R.C.A.No.153 of 2003 in the Rent Control Appellate Authority, Thalassery. By judgment RCR 22/08 -: 2 :- dated on 23.2.2007 the Appellate Authority affirmed the order passed by the Rent Control Court and dismissed the appeal. The order passed by the Rent Control Court and the judgment of the Rent Control Appellate Authority affirming it are under challenge in this revision petition. 2. Respondents 1 and 2 herein are the co-owners of the petition schedule shop room. The said shop room was let out on a monthly rent of Rs.200/- as per Ext.A1 kaichit dated 23.11.1994 to one Balakrishnan, the predecessor-in-interest of the petitioners and the third respondent herein. According to the land lords, Balakrishnan was running a tailoring shop in the petition schedule shop room till 1996. Thereafter, he stopped the business and closed the shop room. Balakrishnan later passed away and the tenancy devolved on the petitioners and the third respondent herein. According to the land lords, since December, 1996, the petition schedule shop room is remaining closed without being occupied by the successors-in-interest of the tenant, Balakrishnan. The land lords also have a case that the rent is in arrears since 23.12.2001. The land lords, therefore, filed the Rent Control Petition seeking eviction of the tenants RCR 22/08 -: 3 :- from the petition schedule shop room under Section 11(2)(b) and 11(4)(v) of the Act alleging that the rent is in arrears since 23.12.2001 and that the tenants have ceased to occupy the room continuously for six months without reasonable cause. 3. The petitioners and the third respondent resisted the Rent Control Petition contending inter alia that after the death of Balakrishnan, his eldest son, the second petitioner herein, started an agency business in the petition schedule shop room, that on account of the loss suffered by him he could not continue to run the business, that after a while he started a business in books in the petition schedule shop room and later with the help of a friend, he started a construction supervision consultancy and a marriage bureau in the petition schedule shop room. The petitioners and the third respondent further contended that they have not kept the rent in arrears, that on 24.11.2001 the rent due was sent by money order to the land lords which they refused to accept, that thereafter they sent the rent upto and inclusive of December, 2001 by money order, which was accepted by the first respondent - landlord and that the rent thereafter fell in arrears on account of the refusal of the land RCR 22/08 -: 4 :- lords to accept the same. They also contended that the intention of the land lords is to evict them from the petition schedule shop room in order to let it out for a higher rent. 4. In the Rent Control Court, the first respondent herein was examined as PW1 and Exts.A1 to A4 were marked. On the side of the tenants, the second petitioner herein was examined as RW1, the occupant of the adjacent shop room was examined as RW2 and Exts.B1 to B3 were marked. On application filed by the land lords, an Advocate Commissioner was deputed to inspect the petition schedule shop room. CW1, the Advocate Commissioner, inspected the petition schedule shop room on 1.11.2002 and submitted Ext.C1 report dated 9.1.2003. 5. The land lords did not pursue the relief sought under Section 11(2)(b) of the Act and confined their prayer for eviction to the ground under Section 11(4)(v) of the Act. The Rent Control Court, on an analysis of the evidence oral and documentary available in the case, the conduct the tenants in keeping the rent in arrears for long periods and in paying the accrued rent in lump periodically, the report submitted by the Advocate Commissioner, who was examined as CW1 and the total lack of RCR 22/08 -: 5 :- cogent evidence on the side of the tenants to prove that RW1 was running the agency business, book shop business, construction supervision work and marriage bureau in the petition schedule shop room, came to the conclusion that the tenants have, without reasonable cause, ceased to occupy the petition schedule shop room continuously for six months. The Rent Control Court accordingly directed the tenants to surrender vacant possession of the petition schedule shop room. 6. The petitioners herein thereupon filed R.C.A.No.153 of 2003 in the Court of the Rent Control Appellate Authority, Thalassery joining the third respondent herein also as a respondent in the appeal. On application filed by the petitioners herein as I.A. No.2130 of 2006, respondents 4 and 5 herein, were impleaded as supplemental respondents 4 and 5 in the said appeal. The Appellate Authority considered the evidence oral and documentary available in the case including the report submitted by the Advocate Commissioner and after an elaborate analysis of the pleadings and the evidence in the case, came to the conclusion that the tenants have, without reasonable cause, ceased to occupy the petition schedule shop room for more than RCR 22/08 -: 6 :- six months immediately preceding the filing of the Rent Control Petition. The Appellate Authority accordingly confirmed the findings of the Rent Control Court and dismissed the appeal. 7. We have heard Sri.Blaze K. Jose, the learned counsel appearing for the petitioners. The learned counsel submitted that the reliance placed by the Rent Control Court and the Appellate Authority on Ext.C1 report submitted by the Advocate Commissioner and the testimony tendered by the Advocate Commissioner examined as CW1 is improper for the reason that the Commission was taken out without notice to them and that the Commissioner did not inspect interior of the shop room. The learned counsel also contended that the findings of the Rent Control Court and the Appellate Authority as regards the business run by RW1 in the petition schedule shop room are not sustainable in the light of the evidence on record and that consequently the findings of the Rent Control Court and the Appellate Authority regarding cessation of occupation are faulty and incorrect and are liable to be set aside. 8. We have gone through the order passed by the Rent Control Court and the judgment of the Appellate Authority. The RCR 22/08 -: 7 :- Rent Control Court and the Appellate Authority have noticed that the Rent Control Petition was preceded by Ext.A2 notice dated 8.11.2001 whereby the land lords had called upon the tenants to surrender vacant possession of the petition schedule shop room and that in Ext.A4, the reply caused to be issued by the tenants to the land lords, the tenants did not disclose what was the nature of the agency business said to be run by RW1 (second petitioner herein) in the petition schedule shop room, that the statement in Ext.A4 reply notice was that RW1 was conducting "some agency" business and that Ext.A4 notice did not mention about the marriage bureau and the construction business said to be run by RW1 in the petition schedule shop room. The Rent Control Court and the Appellate Authority also took note of the conduct of the tenants in keeping the rent in arrears for long periods and in paying the arrears of rent in lump on occasions by money order and the failure of the tenants to prove that RW1 conducting the agency business, book business, building construction supervision work and a marriage bureau in the petition schedule shop room. The Rent Control Court and the Appellate Authority also relied on the report submitted by the RCR 22/08 -: 8 :- Advocate Commissioner who had inspected the premises on 1.11.2002, the day on which the Rent Control Petition was presented in court. The Advocate Commissioner had reported that the petition schedule shop room was in a locked condition, that there was rust on the lock, that the lower portion of the shutter was dusty, that in the upper portion of the shutter there were cob-webs and that the shop room appeared to be closed for a long and continuous period. 9. The Rent Control Court after an elaborate analysis of the pleadings and the evidence in the case held that the tenants have signally failed to prove the various types of business said to be run by RW1 in the petition schedule shop room. It was also held that the land lords have established that the tenants have, without reasonable cause, ceased to occupy the petition schedule shop room continuously for more than six months. The Appellate Authority has also elaborately considered the evidence oral and documentary available in the case including the report submitted by the Advocate Commissioner and held that it can be rightly concluded that the petition schedule shop room was under lock and key for a long period immediately preceding the inspection RCR 22/08 -: 9 :- by the Advocate Commissioner. The Appellate Authority held that the tenants have failed to prove by cogent evidence that RW1 was running the various types of agency business spoken to by him, in the petition schedule shop room. The Appellate Authority also concurred with the Rent Control Court that the testimony tendered by the occupant of the neighbouring shop room examined as RW2 cannot be relied on for the reason that his relationship with the land lords was strained by reason of the criminal case between them, pending in the Magistrate's Court. 10. CW1, the Advocate Commissioner deputed by the Rent Control Court, inspected the petition schedule shop room on 1.11.2002, the date on which the Rent Control Petition was instituted and submitted Ext.C1 report dated 9.1.2003. The tenants did not file objections to Ext.C1 report submitted by the Advocate Commissioner. Though CW1, the Advocate Commissioner was cross examined by the learned counsel appearing for the tenants, the Rent Control Court and the Appellate Authority have noticed that nothing has been elicited from the Advocate Commissioner when he was cross examined to cast any doubt on the report submitted by him. Further, the RCR 22/08 -: 10 :- second petitioner herein, examined as RW1 was also not able to establish that he was running any business in the petition schedule shop room. The Rent Control Court which had the opportunity to hear RW1 and to watch his demeanor has held that he has not succeeded in proving that the petition schedule shop room was in his occupation and that he was conducting the various kinds of business spoken to by him, therein. The Appellate Authority has confirmed the said finding. In the absence of any cogent material, especially, the total lack of any documentary evidence on the side of the petitioners to prove their contention that RW1, the second petitioner was running any business in the petition schedule shop room, we concur with the findings of the Rent Control Court and the Appellate Authority that the tenants have ceased to be in occupation of the petition schedule room, rendering them liable to be evicted under Section 11(4)(v) of the Act. The finding of the Rent Control Court as confirmed by the Appellate Authority is a plausible view on facts, supported by the evidence on record and cannot be said to be perverse, warranting interference under Section 20 of the Act. 11. After hearing the learned counsel for the revision RCR 22/08 -: 11 :- petitioner and on perusing the order passed by the Rent Control Court and the judgment of the Appellate Authority, we are satisfied that the conclusions and findings of the Rent Control Court and the Appellate Authority are based on facts proved by the evidence available on record and cannot be said to be perverse, warranting interference under Section 20 of the Act. In our considered opinion, no grounds have been made out to interfere with the well considered findings and conclusions arrived at by the Rent Control Court and the Appellate Authority. In the result, the revision petition fails and it is dismissed inlimine. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 28/1