IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RCRev..No. 204 of 2011() ------------------------ RCA.21/2008 of RENT CONTROL APPELLATE AUTHORITY THALASSERY RCP.14/2006 of RENT CONTROL COURT, THALASSERY .................... REVISION PETITIONER/ APPELLANT/RESPONDENT ------------------------------ EDAKONOTH ABDUL BASHEER, S/O.MOIDEEN KOYA,AGED 52 YEARS, AHAMMED MANZIL, PIER ROAD, THALASSERY BY ADV. SRI.CIBI THOMAS RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- MURIKANDY THAZHE KUNIYIL ASMA, D/O.ABDULLA HAJI, AGED 43 YEARS, SUBAIRS CHETTAMMEN, THLY AMSOM, VADIKKAKAM DESOM,THALASSERY TALUK, KANNUR DIST THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.204 OF 2011 ------------------------ Dated this the 7th day of June, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant is an order of eviction passed concurrently by the Rent Control Court and the Appellate Authority on the ground of cessation of occupation(under Section 11 (4)(v) of the Act 2 of 1965). The landlady had invoked the ground of bona fide need for own occupation. But, the Rent Control Court declined eviction on that ground and the above order of the Rent Control Court was confirmed by the Appellate Authority also. The order declining eviction on the ground of bona fide need for own occupation has attained finality. 2. In this revision,we need to be concerned only with the correctness of the order of eviction passed under Section 11(4) (v). The case pleaded by the landlady was that the tenant has ceased to occupy the building continuously for more than 5 years without reasonable cause. The tenant's defence was that RCR No.204/2011 2 he is conducting business in old motor spare parts in a neighbouring building and that he is using the petition schedule premises as a godown for storing the goods of that business. The allegation of cessation of occupation was denied. In the enquiry conducted by the Rent Control Court, evidence consisted of Exts.A1 to A3, Ext.C1 commissioner's report, PW1, the landlady and CW1 the commissioner and RW1 the tenant. The Rent Control Court on evaluating the evidence came to the conclusion that the ground under Section 11(4)(v) stood established and accordingly ordered eviction. 3. The Appellate Authority on reappraising the evidence concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction. 4. In this revision, various grounds are raised assailing the the eviction order passed under Section 11(4)(v). Sri.Cibi Thomas, learned counsel for the revision petitioner would address strenuous arguments before us on the basis of those grounds. Drawing our attention to Ext.C1 commission report, Mr.Cibi Thomas submitted that Ext.C1 is the one item in the evidence which was relied on by the statutory authorities for ordering RCR No.204/2011 3 eviction. Ext.C1 was an ex parte commission report. The commissioner, who submitted Ext.C1 report, did not inspect the inside of the petition schedule building. What is reported in Ext.C1 is only that the lock of the petition schedule building was found rusty and that outside the petition schedule room there were collections of cob webs. The tenant/revision petitioner was conducting spare parts business in the room almost opposite to the petition schedule building. In spite of that, no notice was given to the revision petitioner, so submitted the learned counsel. The landlady has deliberately suppressed the fact that the tenant is conducting business in the room opposite side of the petition schedule building from the advocate commissioner. The learned counsel submitted that since the room is being used as go down, presence of the tenant every day in the room is not expected. 5. We have very anxiously considered the submission of Mr.Cibi Thomas. We have gone through the order of the Rent Control Court and the Judgment of the Appellate Authority. It is not correct to say that it was relying solely on Ext.C1 ex parte commission report that eviction order was passed against the revision petitioner under Section 11(4)(v). The authorities RCR No.204/2011 4 noticed that on the terms of the admitted lease, it was the obligation of the tenant to pay taxes due for the building to the Municipal Authorities. It was noticed that for years together, the tenant has not remitted taxes. It was further noticed that if, as a matter of fact, the tenant was using the building as godown, there should be other documents for proving the same. The total absence of documents was a circumstance rightly noticed by the learned statutory authorities as militating against the tenant's case of continued occupation. In this jurisdiction under Section 20, this court is not expected to make reappraisal of evidence and substitute conclusions of fact arrived at by the fact finding authorities under the statute especially when such conclusions are founded on evidence. On going through the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts, we find that the finding therein that the tenant has ceased to occupy the building continuously for more than six months without reasonable cause is a finding entered on evidence oral, documentary and more importantly circumstantial . We do not find any warrant for interference. The revision will stand dismissed. RCR No.204/2011 5 6. After we pronounced this order, Mr.Cibi Thomas requested that fairly a long period of time be given to the tenant for surrendering the premises. We do not think that we will be justified in granting time to the tenant who is liable to be evicted on the ground of cessation of occupation. However, in view of the submission of Mr.Cibi Thomas that at present the tenant is actually using the building for storing his goods, we are inclined to grant six months time from today on the usual conditions. 7. The result of the above discussion is as follows; i). The revision petition will stand dismissed, but without any order as to costs, confirming the order of eviction passed under Section 11 (4)(v) . ii). The Execution Court will keep in abeyance proceedings for delivery of the petition schedule building to the landlady for a period of six months from today subject to the following conditions; The tenant/revision petitioner will file an affidavit within three weeks from today before the Execution Court or the Rent Control Court as the case may be undertaking to give peaceful RCR No.204/2011 6 surrender of the building to the landlady on or before the expiry of six months from today. It will be undertaken through the same affidavit that the tenant will discharge arrears of rent if any due as on date within one month from today and that he will pay occupational charges to the landlady for the building with effect from 1/7/2011 till the date of actual surrender of the petition schedule building at the rate of 100/- per mensem without fail. We make it clear that the revision petitioner will be entitled for the benefit of time as allowed above, only if he files the affidavit on time and the undertakings therein are honoured without fail. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk