IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 RCR NO.196 OF 2009 .................... (RCA 44/2004 OF .RENT CONTROL APPELLATE AUTHORITY (ADHOC II, KASARAGOD) RCP NO.3/2003 OF RENT CONTROL COURT, HOSDRUG) PETITIONER/APPELLANT/RESPONDENT(TENANT) ----------------------------------------------------------- S.P.ISMAIL, S/O.K.P.MUHAMMED, KARUVOT JEWELLARY, OPP.KAILAS THEATRE, KANHANGAD, HOSDRUG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): RESPONDENT/PETITIONER (LANLORD) ---------------------------------------------- K.SUDHAKARA SHENOY, S/O.K.NARAYANA SHENOY, RESIDING AT KOPRA QUARTERS, KUSHAL NAGAR, HOSDRUG TALUK, KASARAGOD DISTRICT. ADV. SRI.SURESH KUMAR KODOTH THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.2614/2009 IN RCR NO. 196/2009 DISMISSED 11/12/2009 SD/- PIUS C.KURIAKOSE, JUDUGE. SD/- K.SURENDRA MOHAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 196 OF 2009 ------------------------ Dated this the 11th day of November, 2009 O R D E R Pius C.Kuriakose, J. The order of eviction concurrently passed against the tenant on the ground of cessation of occupation(section 11 (4)(v) of Act 2 of 1965) is under challenge in this revision petition filed under section 20. It was alleged by the landlord/respondent even in the lawyer notice, which he had issued prior to the institution of the RCP, that the tenant had ceased to occupy the building continuously for more than six months. The tenant's defence to the allegation of cessation of occupation was that he has not ceased to occupy the building and that he is carrying on business in the petition schedule building i.e. conduct of gold smithy work by engaging a gold smith and also as a godown for his optical business conducted elsewhere. Along with the Rent Control Petition, the landlord filed application for issuance of commission for an immediate local inspection. The Rent Control Court allowed that application and directed the Advocate Commissioner to conduct inspection on two or three occasions without giving RCR.No.196/2009 2 notice to the tenant. Accordingly, inspection was conducted. The commissioner reported that on all the three occasions the premises were found closed. It was also reported that the shutter of the petition schedule building was full of dust , cob webs, etc. and that there was no sign of actual physical occupation of the premises by the tenant. On all the three occasions, the tenant was absent. But the tenant's brothers were present very near to the petition schedule building at the time of first visit by the commissioner. At trial before the Rent Control Court, the evidence consisted of oral evidence of PW1 landlord and RW1 the tenant and RW2 the gold smith engaged by the tenant for carrying on gold smithy works in the petition schedule building. The documents on the side of the landlord consisted of Ext.A1 copy of the lawyer notice, Ext.A2 reply notice and Ext.A3 common order passed by the Rent Control Court in the previous Rent Control Petition filed against the tenant. The report submitted by the commissioner was marked as Ext.C1. The Rent Control Court on evaluating the evidence found that the tenant had ceased to occupy the building continuously for more than six months and accordingly ordered eviction. The Appellate RCR.No.196/2009 3 Authority reappraised the evidence and concurred with all the conclusions of the Rent Control Court. 2. We have heard the submissions of Sri. M.Gopikrishnan Nambiar, learned counsel for the revision petitioner and those of Sri.Suresh Kumar learned counsel for the respondent/landlord. Sri.Gopikrishnan Nambiar referred to the judgment of a Division Bench of this court in Maroli Achuthan v. Kunhipathumma (AIR 1968 Kerala 28) and submitted that the only tangible item of evidence on the basis of which the Rent Control Court and the Appellate Authority, found that the tenant has ceased to occupy the building continuously for more than six months is Ext.C1 report, which is an ex parte commissioner's report. The learned counsel submitted that very unusually the learned Rent Control Court had directed the commissioner not to give notice to the tenant before he conducting the inspection. The Advocate Commissioner was not examined as a witness. Without examining the commissioner, the report could not have been relied on. The finding of the authorities below that there has been cessation of occupation, therefore, is not based on any legal evidence. Sri.Gopikrishnan Nambiar submitted that the RCR.No.196/2009 4 petition schedule building is mainly used as a godown for the optical business carried on by the tenant in another building. The landlord does not have a case that the tenant has closed down the optical business which is carried on in the nearby building. RW2, the goldsmith has given very convincing evidence. Therefore, the findings of the Rent Control Court and the Appellate Authority being not founded on legal evidence are illegal and hence warrants interference by this court under sect ion 20. 3. Resisting the submissions of Sri.Gopikrishnan Nambiar, Sri.Sureshkumar submitted that it is not correct to say that it is relying solely on Ext.C1 that the necessary findings have been entered by the authorities below. When the tenant claims that he is carrying on business, it is for him to substantiate that claim by adducing the best evidence. RW1 stated in his evidence that he has taken electricity connection in the building in his name and that he is consuming the electricity and that he is paying the electricity charges regularly. He also stated that inspector of weight and measures periodically visited the building and inspected the weights and measures kept in the building. These RCR.No.196/2009 5 are two aspects which are capable of being proved by documentary evidence at the disposal of the tenant. The tenant has not chosen to produce such documentary evidence. There is every justification for drawing adverse inference against the tenant. 4. We have very anxiously considered the rival submissions addressed at the Bar. We cannot agree with Sri.Gopikirhsnan Nambiar, who argues that it is relying solely on Ext.C1 that the authorities below concluded that the tenant has ceased to occupy the building continuously for more than six months. Of course, Ext.C1 was also relied on. But there was the oral evidence adduced by the parties, particularly oral evidence adduced by the tenant himself as RW1. It is trite that occupation means something more than juristical possession. According to us, a tenant can be stated to occupy a commercial building only when he is carrying on commercial activities, to carry on which the building was let out to him. In the instant case, the purpose of lease was to conduct gold smithy work as well as go down of optical goods in the petition schedule building. Both these aspects, in our opinion, are capable of documentary evidence RCR.No.196/2009 6 which should be available with the tenant himself. The tenant, as RW1, in his evidence has stated that he has taken electricity connection in his own name and that he is consuming electricity and he is paying charges to the Electricity Board. He also claims that the inspector of weight and measures is visited his shop. We notice that no documentary evidence for substantiating the above claims has been produced by the tenant. Non production of such documentary evidence will certainly justify drawal of adverse inference against the tenant, when the controversy as to whether or not the tenant is occupying the premises for doing the business as he claims is being adjudicated. The evidence of the gold smith will reveal that there is document to show that he was entrusted with smithy works in the building. No such document is forthcoming. In this jurisdiction under Section 20, this court is not expected ordinarily to reappraise the evidence and substitute our conclusions for the conclusions of facts entered by the facts finding authorities viz. Rent Control Court and the Rent Control Appellate Authority. Having scanned the impugned judgments and having RCR.No.196/2009 7 considered the rival submissions, we are of the view that the findings entered by the Rent Control Court and the Appellate Authority cannot be said to be vitiated to the extent of warranting invocation of the revisional jurisdiction. Revision fails and the same will stand dismissed. But in the circumstances, parties are directed to suffer their costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk