IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 RCRev..No. 78 of 2007() ----------------------- RCA.104/2002 of RENT CONTROL APPELLATE AUTHROITY , THALASSERY RCP.123/1998 of RENT CONTROL COURT, THALASSERY .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- POYYIL SUKUMARAN, S/O.RAMUNNI, AGED 86 YEARS, BUSINESS, RESIDING IN MAHIJA NIVAS, THIRUVANGAD AMSOM AND DESOM, THALASSERY TALUK. (DIED) (LRS IMPLEADED AS P2 & P3), ADDL.REV.P2.MAHIJA, D/O. SUKUMARAN (DIED) 57 YEARS, THIRUVANAGAD AMSOM AND DESOM, THALASSERI TALUK. ADDL.REV..P3.CHANDINI, D/O. SUKUMARAN (DIED) 53 YEARS, CHANDINI NIVAS, DHARMADAM (P.O.), THALASSERI TALUK. (ARE IMPLEADED AS ADDL. REV. P2, REV. P3 AS L.Rs OF DECEASED REV.PETITIONER AS PER ORDER DATED 28/5/2008 IN I.A. NO.1071/2009) BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------- PARAMBATHKANDY KELOTH KADEEJA, W/O.LATE K.P.MUHAMMED HAJEE, AGED 63 YEARS, NO OCCUPATION, RESIDING AT NAZEEMA MANZIL, T.C.ROAD, THALASSERY, THALASSERY TALUK. ADDL.R2. RAMESH, S/O. SUKUMARAN (DIED), MAHIJA NIVAS, THIRUVANGAD AMSOM, THALASSERI TALUK. ( IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 28/5/2008 ON I.A. 1071/2009) ADV. SRI.R.SURENDRAN FOR R.1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ RCR.No.78 OF 2007 ------------------------ Dated this the 16th day of September, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision under Section 20 is the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner tenant on the ground of cessation of occupation reversing the order of the Rent Control Court declining eviction on that ground. The landlord had invoked ground under Section 11(3) also. But, it is conceded by both sides that the order declining eviction under Section 11(3), in view of sub section (17) of Section 11, has attained finality. The landlord's allegation was that the building, which had been let out to the tenant for conducting tailoring business, was not used by the tenant for a continuous period of about 2 years without any reasonable cause. The tenant would dispute the allegation of the landlord. The tenant contended that on account of his wife's serious illness, the premises had to be closed for RCR.No.78/2007 2 about a week. Before the Rent Control Court, the evidence consisted of Exts.A1, B1 to B9 series, PWs 1 and 2, RW1 and the commissioner's report Ext.C1. PW2 was the commissioner who submitted Ext.C1 report. PW2 in Ext.C1 reported that he inspected the building on three occasions during a span of 10 days and that on all the three occasions the building was found in lock. He also reported that locks of the building were found rusty and that huge quantity of dust and cob webs were seen on the shutter of the building as well as the front portion. It was also reported that a wall poster was found stuck to the wall and shutter together, indicating that the shutter had not been opened for quite a long period. Apart from reporting on the above aspects, the advocate commissioner would make enquiries with neighbouring shop owners and would further report that such enquiries revealed that the building had not been opened for about more than one year. One of the neighbouring shop owners, with whom the commissioner made enquiry, was the brother of the landlord himself. Even though the advocate commissioner, as PW2, gave evidence in terms of Ext.C1, the learned Rent Control Court did not become inclined to rely on the RCR.No.78/2007 3 advocate commissioner's report. According to that Court, the Commissioner had not been authorised to collect evidence from neighbouring owners. Ext.C1 was eschewed from consideration. The Rent Control Court concluded that there was no acceptable evidence on the basis of which it could be held that the eviction ground under Section 11 (4)(v) stood established. 2. The Appellate Authority, however, would rely on Ext.C1 and also PW2's evidence. The Appellate Authority noticed that despite a statement by the tenant in evidence that there are documents which will show that he has been continuously conducting tailoring business as well as business in cracker in the petition schedule building, he had not produced any document. In that view of the matter, the Appellate Authority would reverse the finding of the Rent Control Court and conclude that the eviction ground under Section 11(4)(v) stood established. Accordingly, the order of eviction was passed under Section 11 (4)(v). 3. In this revision under Section 20 various grounds have been raised assailing the judgment of the Rent Control Appellate Authority and Sri.K.V.Pavithran, learned counsel for the petitioner RCR.No.78/2007 4 addressed us strenuous arguments on the basis of all those grounds. All the submissions of Sri.K.V.Pavithran, were resisted by Sri.R.Surendran, learned counsel for the respondent/landlord. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court as well as the judgment of the Appellate Authority. Having gone through the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts, we find that the findings entered therein are reasonable findings tendered on the basis of a correct appreciation of the evidence on record. The commissioner's report and the commissioner's evidence as PW2 showed at least prima facie that the premises had been locked up for more than one year. That being the position, the burden has certainly shifted to the tenant to prove by adducing cogent evidence that he was actually conducting the business continuously except for a short period of 10 days when his wife was allegedly ill. Though the tenant agreed to produce documents to show that he was continuously conducting the business, no such document was produced. According to us, the conclusions arrived at by the learned RCR.No.78/2007 5 Appellate Authority are reasonable and there is no illegality, irregularity or impropriety about them. The revision necessarily has to fail. 5. However, considering the last plea of learned counsel Mr.Pavithran that at least four months' time be granted to the petitioner to surrender the premises, even as we dismiss the RCR without any order as costs, we direct the Execution Court not to order and effect delivery of the building in favour of the respondent landlord for a period of four months from today subject to the following conditions; The revision petitioner tenant shall deposit the entire arrears of rent due in respect of the petition schedule building, as alleged by the landlord, within one month from today and further that occupational charges at the current rent rate will be paid for coming four months and also that the building will be peacefully surrendered upon expiry of four months from today. The Revision petitioner will get benefit of time granted RCR.No.78/2007 6 above only if the above conditions are complied with. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk