IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 RCRev..No. 68 of 2009() ----------------------- RCA.91/2005 of DISTRICT COURT, THALASSERY RCP.309/2002 of J.M.F.C.-I, KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT (S): -------------------- P.V.ABDUL HAKKIM PONNAN VALAPPIL HOUSE S/O HAMSA HAJI, AGED 43 YEARS BUSINESS, RESIDING AT MADAYI AMSOM PUTHIYANGADI DESOM, KANNUR DT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): RESPONDENTS/PETITIONERS ---------------------- 1. ARIKKOTHEN REMAVATHI D/O SARADA RESIDING AT AMARMAYA, NEAR JOHN MILL STIP TALAP, KANNUR MUNICIPALITY KANNUR 2. RAMESHKUMAR, S/O SARADA -DO- -DO- 3. RANJITH KUMAR - DO- -DO- 4. AMERNATH -DO - -DO- 5. AMERLEKHA. D/O SARADA -DO - -DO- ( RESPONDENTS 2 TO 5 THROUGH PA HOLDER 1ST RESPONDENT ARIKOTHEN REMAVATHI) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.68 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2009 ORDER Pius.C.Kuriakose, J. A tenant against whom order of eviction has been concurrently passed by the rent control court and the appellate authority on the grounds under Section 11(3) , 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act 1965 is the petitioner in this revision under Section 20. 2. The need projected under Section 11(3) was that the building which is a shop building is needed bonafide for the occupation of respondents 4 and 5 so that they can carry on business in textiles. The allegation of the landlord in the context of Section 11(4)(v) was that the tenant/revision petitioner is not carrying on any business in the petition schedule premises and that he has ceased to occupy the premises for the past more than 6 months without any reasonable cause and the landlord's case in the context of the ground under Section 11(4) (iii) was that the tenant and his mother Kunjamina Umma and others RCR.NO.68/09 2 jointly own and possess large number of rooms in the same town. The further case was that they have purchased three rooms on the front side of Harsale Corporation, a building complex. There was still further case that the tenant is in possession of two buildings having door Nos. TPN 311/312 and other buildings. The evidence before the rent control court consisted of the oral testimonies of PWs 1 and 2, the defacto claimants and that of PW3, the Advocate Commissioner who has been deputed by the court to conduct local inspection and submit report. Documentary evidence consisted of Exts.A1 series and A2 on the side of the landlord/petitioner and Ext.C1 Commissioner's report. Absolutely, no counter evidence - oral or documentary was adduced from the side of the revision petitioner/tenant. The rent control court on an evaluation of the evidence concluded that the landlord has succeeded in establishing all the three grounds which he had invoked in the rent control petition. The appellate authority on re-appreciation of the evidence would concur with all the conclusions of the rent control court. 3. We have heard Sri.A.Mohamed Mustaque, learned counsel RCR.NO.68/09 3 for the revision petitioner. He would draw our attention to Sub Section 9 of Section 11 of the Rent Control Act and submit that going by the terms of the rental arrangement between the revision petitioner and the landlords, the revision petitioner is entitled to retain the building for a period of 20 years and the rent control petition in as much as the same has been filed before the expiry of 20 year period is not maintainable in law. Sri.Mustaque would assail the findings of the courts below on all the three grounds particularly the ground under Section 11(4)(iii) and Section 11(4)(v). As regards the ground under Section 11(4)(v), learned counsel would submit that the authorities below have wrongly cast the burden of proof on the tenant. What had been admitted by the revision petitioner/tenant was only that the premises had been closed for a period of one month for repairs. Such an admission will not shift the burden which is that of the landlord to the tenant. The learned counsel conceded that no counter evidence was adduced by the revision petitioner. But according to the learned counsel it is for the landlord to establish cogent evidence and show that the statutory eviction ground under Section 11(4)(v) exists. When that burden has not been RCR.NO.68/09 4 discharged by the landlord, the tenant has no burden to adduce rebuttal evidence. As regards the eviction order passed under Section 11(4)(iii), the learned counsel submitted that all the buildings now found by the rent control court to be in the possession of the tenant so as to attract Section 11(4)(iii) are not under the exclusive possession of the tenant. At best, they are possessed jointly by the tenant, his mother and siblings. Such possession will not constitute eviction ground under Section 11(4)(iii). 4. We have very anxiously considered the submissions addressed by the learned counsel. Revision petitioner does not have a case that the agreement of lease providing for a period of 20 years is a registered one. This court will not be able to countenance any lease providing for a period of more than one year unless the same is evidenced by a registered instrument. The contention based on Sub Section 9 of Section 11 therefore cannot be entertained at all. Having gone through the orders concurrently passed by the rent control court and the appellate authority, we do not find any ground at all for interfering with the findings entered by those authorities under section RCR.NO.68/09 5 11(3). Those findings according to us are founded on evidence and are quite reasonable and do not warrant any intervention by this court within the contours of this court's jurisdiction under Section 20. 5. Statutory eviction ground under Section 11(4) (v) will stand established when it is shown that the tenant has ceased to occupy the tenanted building for a period of more than six months without any reasonable cause. The defence was one of denial. Admission, if at all as rightly submitted by Sri.Mohamed Mustaque was only that the building had been closed for a period of one month for repairs. Such an admission will not shift the burden to the landlord. But what we find is that the landlords have discharged the burden of establishing the existence of the ground under Section 11(4)(v) by getting themselves examined as PWs 1 and 2 and also by taking out a commission and getting report as Ext.C1 which will show that the tenant is not carrying on any business in the petition schedule premises. It is trite that occupation for the purpose of Section 11(4)(v) in respect of a commercial building means occupation by carrying on business. It is transparently clear that the petitioner/tenant is not carrying on any RCR.NO.68/09 6 business in the premises. At any rate, absolutely no counter evidence has been adduced to the evidence adduced in that context by the landlord. The same is the position according to us regarding the findings entered by the courts below with respect to ground under Section 11(4)(iii). It has been specifically pleaded in paragraph 6 of the rent control petition that tenant has come into possession of atleast two buildings of his own. The landlord produced Exts.A1, A1(a) and A1(b). These documents are certified copies of the assessment extract maintained by the local authority. Such documents enjoy presumptions under Section 26 of the Rent Control Act regarding the correctness of the entries therein . So far as we can see from the orders passed by the rent control court and the appellate authority, those documents will show that the revision petitioner is in possession of those rooms. If it is the case of the petitioner that he does not have absolute possession, then it was up to him to have adduced counter evidence. It has not been done by the petitioner. The result is that, we do not find any warrant for interfering with the findings entered by the courts below. However, having regard to RCR.NO.68/09 7 the appealing request of the learned counsel for the revision petitioner, we are inclined to grant six month's time subject to the following conditions : The revision petitioner shall file an affidavit before the execution court stating that he will unconditionally and peacefully surrender the building to the respondents on or before 15/09/2009. Through the affidavit, it will also be undertaken by him that he will discharge arrears of rent if any within one month and that he will pay the rent which falls due till the date of actual surrender promptly. The affidavit as directed above shall be filed by the petitioner within three weeks from today. If the execution court notices such an affidavit, that court will adjourn the EP to 16/09/2009 or the next working day. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.NO.68/09 8