C.K. Abdurahiman v. Dr. Ameera Ahammed Kanhirandi and Dr Cheriyapparambath Kollantavida Thasneema Ameer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936 RCRev..No. 68 of 2014 () ------------------------- RCA 140/2012 of THE RENT CONTROL APPELLATE AUTHORITY-II/ II ADDL. DISTRICT JUDGE, KOZHIKODE. RCP 11/2011 of RENT CONTROL COURT/PRINCIPAL MUNSIFF-I, KOZHIKODE. REVISION PETITIONER/APPELLANT/RESPONDENT : -------------------------------------------- C.K.ABDURAHIMAN AGED 63 YEARS S/O.P P ABOOBAKER 27/97 H, OPPOSITE SIDE OF 'V' MART “GLASS INDIA” ARAYIDHATUPALAM, MAVOOR ROAD, KOZHIKODE KASABA AMSOM AND DESOM, KOZHIKODE BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENTS/RESPONDENTS/PETITIONERS : ----------------------------------------- 1. DR.AMEER AHAMMED KANHIRANDI, AGED 47 YEARS, S/O.AHAMMED ISMAIL, 'RINAS', THAVAKARA KANNUR 2 2. DR CHERIYAPARAMBATH KOLLANTAVIDA THASNEEMA AMEER, AGED 43 YEARS, W/O.AMEER AHAMMED, 'RINAS' THAVAKARA, KANNUR (RESPONDENTS 1 AND 2 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER K. P. SUBAIR HAJI AGED 69 YEARS, S/O.K P KUNHALI, 'RINAS' THAVAKARA, KANNUR AMSOM DESOM, KANNUR-2 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01-042014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------R.C.Rev. No.68 of 2014 ----------------------------------------------Dated 1[st] April, 2014.** ## **O R D E R** ## **K.T.Sankaran, J.** The respondent/tenant in R.C.P.No.11 of 2011 on the file of the Rent Control Court, Kozhikode, challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Section 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). 2. The petition schedule building was let out to the tenant as per 'kychit' dated 15.6.1991 on a monthly rent of `1,000/-. According to the landlord, the tenant acquired possession of two other buildings, one at Mavoor road, Kozhikode and the other at Elathoor and that he is conducting business therein. The landlord also contended that the petition schedule building was closed down for more than four years and that the tenant has ceased to occupy the building without any reasonable cause. 3. The tenant contested. Though he denied of R.C.Rev. No.68 of 2014 2 having got possession of two buildings at Mavoor road and Elathoor, in evidence, he admitted that he is in possession of the said two buildings. The tenant also denied the allegation that he ceased to occupy the petition schedule building without any just cause. He contended that wholesale business in footwear is being conducted in the petition schedule building and for that purpose, it was not necessary to open the shop on all days. The tenant also raised a contention that Ext.B1 notice was issued by the Calicut Corporation to stop the business in the building at Mavoor road. However, it has come out in evidence that Ext.B1 notice was quashed by the High Court. 4. Oral and documentary evidence were adduced by the parties before the Rent Control Court. A Commissioner was appointed to inspect the building. The Commissioner found that the petition schedule shop room was closed. He also noticed that the electricity connection to the petition schedule room was disconnected. The Commissioner saw the notice of disconnection issued by the Electricity Board, which was pasted on the meter-board. The Commissioner also visited the buildings in the possession of the tenant at Mavoor road and at R.C.Rev. No.68 of 2014 3 Elathoor. At the time when the Commissioner visited, the shop at Mavoor road was closed down. 5. The Rent Control Court held that the tenant has acquired possession of two buildings as mentioned above and that he is conducting flourishing business therein. As regards the contention of the tenant that the buildings at Mavoor road and Elathoor are not reasonably sufficient for his requirements, the Rent Control Court held that once the landlord establishes that the tenant is in possession of another building, the burden of proof is on the tenant that it is not reasonably sufficient for his requirements. The Rent Control Court relied on the decision in **Iritti Co operative Hospital Society Ltd. v. Damodaran** (2010 (3) KLT 823), wherein, it was held that the statutory requirement under Section 11(4)(iii) is only that the newly acquired or put up building is reasonably sufficient and not that it should be perfectly and completely sufficient. 6. The Rent Control Court held that the petition schedule shop room was closed down and the tenant ceased to occupy the building for more than six months without any reasonable cause. The Rent Control Court relied on the oral R.C.Rev. No.68 of 2014 4 evidence in the case as well as the Commissioner's report to arrive at the conclusion. The Rent Control Court also disbelieved the case put forward by the tenant that since he is conducting wholesale business in the petition schedule building, it is not necessary to open the shop room on all days and that was why the Commissioner found the petition schedule building as closed. Accordingly, the Rent Control Court passed an order of eviction under Section 11(4)(iii) and 11(4)(v) of the Act. 7. Challenging the order of the Rent Control Court, the tenant filed appeal before the Appellate Authority. The Appellate Authority confirmed the findings of the Rent Control Court. Dealing with the case under Section 11(4)(v), the Appellate Authority relied on the decision of the Supreme Court in **Dunlop India Limited v. Rahna** (2011 (2) KLT 682 (SC), wherein, the Supreme Court held that the initial burden to show that the tenant has ceased to occupy the building continuously for 6 months is always on the landlord and he has to adduce tangible evidence to prove the fact that on the date of filing the petition, the tenant was not occupying the building R.C.Rev. No.68 of 2014 5 continuously for 6 months. It was held that once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for his having ceased to occupy the tenanted premises for a continuous period of 6 months. The Appellate Authority also relied on the decisions in **Simon v. Rappai** (2008 (3) KLT 121) and **Mathai Antony v. Abraham** (2004 (3) KLT 169). In **Simon v. Rappai** (supra), a Division Bench of this Court held that the word 'occupation' is used to denote the tenant's actual physical use of the building either by himself or through his agents or employees and legal possession is not sufficient. If the landlord succeeds in proving that the tenant did not occupy the building almost near the period fixed in Section 11 (4)(v) of the Act, it may help the court to presume that there could have been cessation of occupation for the statutory period. In **Mathai Antony v. Abraham** (supra), a Division Bench of this Court held that mere physical possession of the premises would not satisfy the meaning of "occupation" under S.11(4)(v) of the Act. Mere presence in the premises or intermittent opening of the tenanted premises will not be sufficient to upset the rigor of R.C.Rev. No.68 of 2014 6 Section 11(4)(v). 8. As regards the ground under Section 11(4)(iii), the Appellate Authority also concurred with the view taken by the Rent Control Court. It was held that the tenant is in occupation of two buildings as alleged by the landlord. 9. The findings were rendered by the courts below, based on facts and evidence. Normally, the findings of fact arrived at by the authorities below would not be interfered with under Section 20 of the Act. There is no illegality, irregularity or impropriety in the order and judgment of the authorities below warranting interference under Section 20 of the Act. The Rent Control Revision is, therefore, liable to be dismissed. 10. Lastly, the learned counsel appearing for the petitioner submitted that the tenant may be granted at least six months' time to vacate the premises. We are of the view that time till 31.7.2014 can be granted to the tenant to vacate the premises. 11. Accordingly, the Rent Control Revision is dismissed. However, the tenant is granted time till 31.7.2014 to vacate the petition schedule premises on condition that he R.C.Rev. No.68 of 2014 7 shall deposit the entire arrears of rent before the Executing Court on or before 21.5.2014 and also on condition that he shall file an affidavit before the Executing Court on or before 21.5.2014, unconditionally undertaking to vacate the premises on or before 31.7.2014. 12. If the tenant fails to comply with any of the conditions mentioned above, the execution proceedings can be continued forthwith. If the tenant complies with the above conditions, the execution proceedings shall be kept in abeyance till 31.7.2014. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)