Full Judgment
IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY,THE10H DAYOF DECEMBER201319TH AGRAHAYANA, 1935 RCRev..No. 157 of 2007 ( ) --------------------------- AGAINST THE JUDGMENT
IN RCA1192000 of RENT CONTROL APPELLATE AUTHORITY,THRISSUR AGAINST THE ORDER
IN RCP771998 of RENT CONTROL COURT,THRISSUR REVISION PETITIONER/APPELLANT/PETITIONER:: ----------------------------------------------------------------------- ALEX, S/O.CHIRAYATH PAUL, NELLANKARA DESOM, NETTISSERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENTS/RESPONDENTS/RESPONDENTS:: ----------------------------------------------------------------------- * 1. MARY, W/O.MANGALAM VARU, (DIED) NEHRUNAGAR DESOM, OLLUR VILLAGE, NEHRU NAGAR THRISSUR TALUK, THRISSUR.
2. JACOB, S/O.MANGALAM VARU, -DO-,-DO-.
3. SANTHA, W/O.LATE MANGALAM DAVY, NEHRUNAGAR DESOM, OLLUR VILLAGE, THRISSUR TALUK THRISSUR. * 4. SWEETY, D/O.LATE MANGALAM DAVY,-DO-,. (DELETED) * 5. PRASANTH, S/O.LATE MANGALAM DAVY, -DO- (DELETED) -DO-. (RESPONDENTS2AND3ARE RECORDED AS THE LEGAL HEIRS OF DECEASED1T RESPONDENT AND RESPONDENTS4AND5ARE DELETED FROM THE PARTY ARRAY AS PER ORDER
DATED2507.2013 IN IA.1887/2013 IN RCR.157/2007) R3 BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON1012-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: T.R.RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ.
````````````````````````````````````````````````````````````` R.C.R. No.157 of 2007 ````````````````````````````````````````````````````````````` Dated this the 10th day of December, 2013 ORDER
~ ~ ~ ~ ~ ~ Ramachandran Nair, J.
The landlord of a building consisting of a room is the petitioner herein aggrieved by the rejection of the plea for eviction on the ground of cessation of occupation by the tenant, namely under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965(hereinafter referred to as 'the Act').
2. The Rent Control Court initially dismissed the petition which was taken in appeal by the landlord and the appeal was allowed directing the tenant to vacate the premises. Thereafter, in revision filed before this Court as R.C.R. No.422/2004, this RCR.157/2007 :
2. : Court set aside the said order and directed the Appellate Authority to reconsider the matter and thereafter the appeal has been disposed of by the impugned judgment in favour of the tenant.
3. The learned counsel for the petitioner submitted by relying upon various judgments of this Court that the evidence in this case is sufficient to attract the ground under Section 11(4)(v) of the Act. It is submitted that, even if direct evidence is lacking to establish cessation of occupation for a few days, this Court can easily presume the same set of circumstances and can draw a presumption backwards to cover the statutory period of six months. By inviting our attention to various aspects, the learned counsel for the petitioner submitted that in the counter statement filed by the tenant, there is an explanation that because of the illness of the original tenant, the shop was not opened for some days but, they could not prove by producing the muster roll or other registers that they have been doing business for the crucial period.
4. Petition for eviction was filed in June, 1998. Before RCR.157/2007 :
3. : that, the landlord had filed a suit and in that suit, a Commissioner was appointed and the report of the Commissioner has been produced as Ext.A3 dated 04.03.1998. RCP was filed on 22.06.1998. Before the Rent Control Court also, an Advocate Commissioner was appointed twice and Exts.C1 and C2 are the reports. Apart from examining the Commissioner, the landlord has examined an independent witness as PW2. According to the learned counsel for the landlord, PW2's evidence will show that he has been visiting a nearby nursery for purchase of certain items and that on many occasions he could find that the petition schedule building is remaining closed.
5. Learned counsel for the tenant submitted that the burden is on the landlord to prove that the tenant has ceased to occupy the premises during the crucial period. It is submitted further that the evidence adduced will show that the tenant was in hospital for some days and that has been taken advantage by the landlord for filing the suit and later on by filing the RCP. Learned counsel further submitted that both the authorities have RCR.157/2007 :
4. : elaborately considered the matter on the evidence and has entered on the correct conclusions.
6. Sitting in revision, this Court will be justified in coming to a different conclusion on the evidence only if the view taken by the Appellate Authority is so perverse warranting interference. A reading of the order of the Rent Control Court will show that after considering the various reports of the Commissioners and oral evidence, the Rent Control Court was of the view that the landlord has not adduced sufficient evidence to come to the conclusion that the respondent has ceased to occupy the petition schedule property continuously for six months without any reasonable cause. It is also observed that even if it was closed for some time, it was due to the disease of the original tenant which is a reasonable cause.
7. We find from the judgment of the Appellate Authority that the point has been discussed in detail. All the contentions have been properly addressed by the Appellate Authority and from paragraph 24 onwards the discussion proceeded. Evidence shows that the original tenant died on 08.07.1998. RCR.157/2007 :
5. : While adverting to the evidence of PW1, the landlord, the Appellate Authority has relied upon certain admissions and answers to the suggestions in the cross examination. In fact, it was observed in paragraph 26 that a suggestion was put to PW1 as to whether taking advantage of the fact that the 3rd respondent was suffering from ailment, he filed the petition and taken out commission, and he has not denied the same. With regard to the evidence of PW2, it has come out that he was an agent of 'Malayala Manorama' and the finding is that it cannot be believed that he used to go the nursery for purchase of plants for the business. The Appellate Authority found it difficult to rely upon his evidence for want of further materials. Even though the Commissioner's reports have been analysed to find out whether the facts reported will cover the statutory period of six months, the Appellate Authority was not satisfied about the sufficiency of the materials. The Commissioner has stated only that the alleged closure was only for certain period of time. PW3's oral evidence was also assessed in entering a finding against the landlord. RCR.157/2007 :
6. :
8. The question is whether the appreciation of evidence is perverse. The learned counsel for the petitioner relied upon the decision in Kadeeja Beevi and others Vs. Abubacker and others [1993 (2) KLJ1036 to show that under Section 114 of the Evidence Act, presumption could be drawn in respect of state of things both forward and backwards. We find, on a reading of the said judgment that this Court was of the view therein that evidence was there to prove the ground alleged. It is on that premise this Court explained the legal position. In Mariamma Abraham Vs. Itty Oommen [1994 (2) KLT740, a Division Bench of this Court was of the view that in a case where there is evidence that the tenant has ceased to occupy the building continuously for six months without reasonable cause, the onus of proof shifts to the tenant to show that non occupation was with reasonable cause. Therefore, primarily it has to be proved by the landlord by cogent evidence that the tenant has ceased to occupy the building continuously for six months. The learned counsel for the petitioner tried to get support by relying upon these findings. But, we find from the RCR.157/2007 :
7. : reading of the said judgment that there was a sufficient evidence in the form of deposition of PW3 and that was accepted by both the authorities and this Court found no reason to defer from the same but, herein the position is different. Even though learned counsel for the landlord relied upon the decision in Kallullathil Sasidharan Vs. Kadeesumma and Others [2010 (3) KHC56, wherein this Court only indicated that the best mode of proof of cessation of occupation is to conduct surprise inspection by the Commissioner. But, herein, through the reports of the Commissioner, it could not be definitely established that the building was remained without any occupation for the period from April, 1997 to June, 1998, as claimed in the RCP, or at any rate for a period of six months.
9. The last submission made by the learned counsel for the petitioner is that from Ext.C3 report of the Commissioner, it can be seen that the muster roll was complete only up to certain months of 1997 and, therefore, cessation of occupation is evident. We are of the view that the said circumstance alone cannot come to the help of the landlord. Of course, reports of RCR.157/2007 :
8. : the Commissioner will show that cinema posters were seen in the shutter and grass were seen grown up in the premises. But, since the rigour of the Section binds the landlord to prove cessation of occupation continuously for six months, such of those factors alone cannot lead to the presumption so as to get eviction on the said ground. Apart from that, we are of the view that the authorities have entered on certain conclusions against the landlord on a proper assessment of the oral and documentary evidence. In the light of the above, we find no reason to interfere with the impugned judgment and hence, the R.C.R. is dismissed. No costs. Sd/- (T.R.RAMACHANDRAN NAIR, JUDGE) Sd/- (B.KEMAL PASHA, JUDGE) aks/11/12 // True Copy // PA to Judge