Edakkoth Meethal Abid v. Lakkil Pocker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944** **RCREV. NO. 164 OF 2018** **AGAINST THE JUDGMENT IN RCA.64/2017 DATED 05.02.2018 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE AND AGAINST THE JUDGMENT IN RCP.129/2013 DATED 27.02.2017 ON THE FILE OF THE RENT CONTROL COURT, KOZHIKODE.** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** EDAKKOTH MEETHAL ABID AGED 43 YEARS S/O. MUHAMMED HAJI, KUTTIKATTUR VILLAGE, VELIPARAMBA DESOM, P.O. VELIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 008, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER : ABDUL SAMAD, 40 YEARS, S/O. MUHAMMED HAJI, KUTTIKATTUR VILLAGE, VELIPARAMBA DESOM, P.O. VELIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 008. BY ADVS. SRI.K.SANEESH KUMAR SMT.V.B.SANTHINI ## **RESPONDENT/APPELLANT/PETITIONER:** 1 LAKKIL POCKER AGED 74 YEARS, MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O. VELIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 008. (DIED) 2 ADDL.R2. JAMEELA AGE NOT KNOWN, W/O LATE LAKKIL POCKER , MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 3 ADDL.R3. NAJEEB AGE NOT KNOWN, S/O LATE LAKKIL POCKER , MOIDEEN, **R.C.R.No. 164 of 2018** **2** KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 4 ADDL.R4. SUBAIR AGE NOT KNOWN, S/O LATE LAKKIL POCKER , MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 5 ADDL.R5. MUHSIN AGE NOT KNOWN, S/O LATE LAKKIL POCKER , MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 *6 ADDL.R6. SHAMEER AGE NOT KNOWN, S/O LATE LAKKIL POCKER , MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 (*DELETED) *7 ADDL.R7. SHERRIFF AGE NOT KNOWN, S/O LATE LAKKIL POCKER , MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 (*DELETED) (ADDL RESPONDENTS R6 AND R7 ARE DELETED FROM THE PARTY ARRAY, AS PER ORDER DATED 6/1/2023 IN RCR. 164/2018) 8 ADDL.R8. THASLIMA AGE NOT KNOWN, D/O LATE LAKKIL POCKER , MOIDEEN, KUTTIKATTUR VILLAGE, KUTTIKATTUR AMSOM AND DESOM, P.O . VELLIPARAMBA, KOZHIKODE TALUK, KOZHIKODE DISTRICT -673008 (ADDL RESPONDENTS R2 TO R8 BEING THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS PER ORDER DATED 20/12/2022 IN IA NO.1/2022 IN RCR 164/2018.) BY ADV JACOB ABRAHAM THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.C.R.No. 164 of 2018** **3** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.164 of 2018** **------------------------------------------Dated this the 11[th] day of January, 2023** ## **O R D E R** ## **C.S.Sudha, J.** This RCR under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 05/02/2018 in R.C.A.No.64/2017 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode, which appeal is against the order dated 27/02/2017 in R.C.P. No.129/2013 on the file of the Rent Control Court (RCC), Kozhikode. The revision petitioner herein is the respondent in the appeal and the petitioner-landlord in the R.C.P. The respondent is the appellant in the appeal and the respondent-tenant in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.129/2013 was filed by the petitioner-landlord claiming eviction under Section 11(4)(v) of the Act. According to the petitioner, the petition schedule building belonged to one Subaida. By **R.C.R.No. 164 of 2018** **4** virtue of a license agreement dated 01/01/1995, Subaida had given the petition schedule room to the respondent on the basis of a license agreement. The respondent was in occupation of the premises as a licensee. The petitioner purchased the petition schedule building by virtue of registered document executed on 17/12/1999. The petitioner had purchased the building for the purpose of conducting a business of his own. Hence after the expiry of license arrangement entered into between the respondent and the prior owner of the property, the petitioner issued a registered lawyer notice to the respondent demanding vacant possession of the premises. The petitioner thereafter instituted O.S.No.331/2004 seeking a decree of mandatory injunction directing the respondent to vacate the premises. O.S.No.331/2004 was dismissed on 15/12/2012 holding that the respondent is a tenant and not a licensee. Thereafter, the present R.C.P. has been filed. The respondent is not doing any business in the building and he has ceased to occupy the same for the last more than one and half years without any reasonable cause. Hence the prayer for eviction under Section 11(4)(v). 3. The respondent entered appearance and filed objection denying the allegation of the petitioner that he ceased to occupy the premises without any reasonable cause. According to the respondent, he has always been conducting a stationery shop in the tenanted premises and **R.C.R.No. 164 of 2018** **5** hence the petitioner is not entitled to the relief prayed for. 4. PW1 and 2 were examined and Ext.A1 was marked on the side of the petitioner. RW1 was examined and Exts.B1 to B23 were marked on the side of the respondent. The report and plan of the advocate commissioner has been marked as Exts.C1(i) to C4(ii). The RCC on an appreciation of the oral and documentary evidence and after hearing both sides, allowed the R.C.P. and ordered eviction under Section 11(4)(v). In the appeal preferred by the tenant, the RCAA reversed the order of the RCC by the impugned judgment. Aggrieved, the petitioner-landlord has come up in revision. 5. Heard Sri.Saneesh Kumar, the learned counsel for the revision petitioner and Sri.Jacob Abraham, the learned counsel for the respondents. 6. The only point that arises for consideration is, whether the findings of the RCAA suffer from any illegality, irregularity or impropriety. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an Appellate Authority. The power of revision is limited to make a scrutiny of the records to satisfy itself as to the three tests laid down in Section 20. It is true that this Court cannot covert itself into an evidence collecting or **R.C.R.No. 164 of 2018** **6** fact finding court. However, this Court under Section 20 is duty bound to test the order of the RCC and the RCAA on the touchstone of “whether it is according to law” and for that limited purpose it may re-appraise the evidence and ascertain whether the conclusion arrived at is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. Ignoring the weight of evidence, proceeding on a wrong premise of law or deriving such conclusion from the established facts as to betray a lack of reason and/or objectivity would render the findings of the authorities not according to law calling for an interference under Section 20 of the Act. A judgment leading to miscarriage of justice cannot be said to be a judgment according to law ( **Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222)** . 8. Section 11(4)(v) of the Act says that the landlord is entitled to get an order of eviction if the tenant ceases to occupy the building continuously for six months without reasonable cause. According to the petitioner, after the dismissal of O.S.No.313/2009 on 15/12/2012, the respondent-tenant without any reasonable cause has ceased to occupy the premises. The R.C.P. is seen filed on 17/07/2013. On the very same day, he moved a commission application which was allowed, pursuant to which the advocate commissioner, namely, PW2 visited the tenanted **R.C.R.No. 164 of 2018** **7** premises on 18/07/2013 and filed Ext.C1 report before the court on 20/08/2013. At the time of PW2's visit, the respondent was not present in the premises. In Ext.C1 it is reported that the premises was found locked. The shutter was covered with dust and cobwebs. Wild vegetation was seen in front of the shop room. A board was seen in front of the shop room which read 'Ice Magic'. A machine for making sugarcane juice was found in front of the shop, which was also found to be in a state of disuse. Exts.C1 indicated all signs of non occupation of the tenanted premises. Hence, the RCC allowed the R.C.P. under Section 11(4)(v). However, the RCAA reversed the finding on the ground that the RCC had failed to take note of the fact that the respondent had given a reasonable explanation for non occupation of premises and hence allowed the appeal filed by the tenant. In the counter filed by the respondent-tenant, he has no case that he had ceased to occupy the premises for a period of six months or so without any reasonable cause. On the other hand, his specific case is that he is a cardiac patient and therefore, when he fell sick or during his visit(s) to the hospital or when his sole employee went on leave, the shop would be closed. Other than such closure of shops for a day or two, he had never closed his shop. In this context, we refer to a Division Bench decision of this Court in **Kallullathil Sasidharan v. Kadeesumma, 2010 (3) KHC 56,** where it has been held that in order to get the benefit of **R.C.R.No. 164 of 2018** **8** “reasonable cause” enumerated in Section 11(4)(v), the tenant is expected to concede that there was cessation of occupation and that such cessation was due to some reasonable cause, which is beyond his control. In a case where there is a stout denial of the allegation of the landlord regarding cessation of occupation, the tenant is not justified in banking upon any 'reasonable cause' which was neither pleaded nor proved to contend that the cessation was justifiable. Therefore, in this case, the RCAA apparently went wrong in concluding that the tenant had shown reasonable cause or that he had a case that it was due to reasons beyond his control he had closed down or ceased to occupy the premises for a period of more than six months or for a period of six months. 9. Now let us assume that the tenant is entitled to show reasonable cause or that he has a case that it was for a reasonable cause he had ceased to occupy the premises. Ex.C1, the first report showed all signs of non-occupation of the premises. PW2, the advocate commissioner went to the premises for the second time on 23/02/2015. On the said day, the inspection could not be done as reported in Ext.C2 filed on 02/03/2015 before the court that, before the inspection could commence, the respondent abused as well as physically assaulted the petitioner. Therefore, PW2 returned without conducting the inspection. His request for police assistance/protection was granted by the RCC. The third visit **R.C.R.No. 164 of 2018** **9** was on 17/12/2015. On the said day, the respondent, his son and two women employees were seen in the premises. The advocate commissioner in Ext.C3 filed on 05/01/2016 reports that it was a fancy/stationery shop that was being conducted in the premises. No board was found or seen in front of the shop room. When the advocate commissioner inquired with the son of the respondent, the latter told him that the business is being run in the name and style 'Pokker Stationery Mart'. The advocate commissioner visited the property for the fourth time on 22/10/2016. Then he saw the business of mobile recharge, mobile accessories, plastic flowers and some stationery articles being conducted in the tenanted premises. He also noticed a small flex board in front of the room which read 'Pokker son's, soft drinks, bakery, recharge'. Inside the shop it was written 'Cell to Cell Mobile Recharge'. Exts.C3 and C4 visits made by the advocate commissioner is apparently two years and three years respectively after the filing of the R.C.P. As held in **Mukreerakath Khadeeja v. Krishna Janaki, 2011 (3) KHC 753** , in a case under Section 11(4)(v), the best mode of proof of cessation of occupation is to conduct a surprise inspection of the premises by the commissioner. Here as noticed earlier, a reading of Ext.C1 report shows all indications of cessation of occupation of the tenanted premises by the respondent-tenant. The subsequent inspections were conducted much after the first inspection and **R.C.R.No. 164 of 2018** **10** the filing of the R.C.P. Since the inspection was conducted two to three years after the filing of the R.C.P., Exts.C3 and C4 cannot be of much help to the tenant as it is easy for the tenant to stage manage things and get a report regarding the then state of affairs, which would nullify the effect of Ext.C1 report obtained first in point of time, which alone reflects the real state of affairs as on the date of the first inspection by the advocate commissioner. 10. Our attention was drawn to Exts.B2 to B20 receipts, showing payment of building tax, D & O trade license, professional tax etc. These are not sufficient to establish the case of occupation. Section 11(4)(v) of the Act uses the expression “ceases to occupy the building”. The word 'occupation' has not been defined in the Act. As held in **Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth** , **AIR 1964 SC 1676** , the word 'occupation' when used in Rent Control Statutes must be understood in the particular context in which it is used. Looking at the context in Section 11(4)(v) of the Act, it is doubtless 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. The tenant cannot upset the presumption of non occupation by merely pointing out features of his legal possession of the premises. (See also **Abbas v. Sankaran Namboodiri, 1993 KHC 16).** It is true that the advocate **R.C.R.No. 164 of 2018** **11** commissioner has not given the precise period or the approximate period during which the tenant has ceased to occupy the premises. But that would be impossible for the commissioner to assess. It is true that the burden is on the landlord to prove that the tenant ceased to occupy the premises for six months. The petitioner has referred to the period of non occupation in the R.C.P. Ext.C1 report probabilises his case. 11. In the case on hand, the tenant is certainly in legal possession of the premises. But he does not seem to be in actual occupation of the same. He does not seem to be conducting any business as contended by him. Make believe arrangements are seen made during the time of the third and the fourth visit of the advocate commissioner. Going by the board seen in front of the shop room, the tenant is also conducting a juice shop. But interestingly, no electricity bills have been produced. This would have indicated whether the premises was actually being used for the business contended to be conducted in the premises. Yet another aspect is, except for Exts.B9 receipt dated 28/02/2013, none of the other receipts are relating to the relevant period. In the R.C.P., the case is that after 15/12/2012 and till the filing of the R.C.P., that is, on 17/07/2013, there has been cessation of occupation of the premises. Ext.B23 discharge summary shows that he was admitted in the hospital on 15/01/2010 and discharged on 20/01/2010, which is much before the time referred to in **R.C.R.No. 164 of 2018** **12** the R.C.P. Ext.B22 discharge summary shows that he was admitted on 30/03/2013 and discharged on 03/04/2013. This certainly comes within the period referred to. However, this is much before the date of the first visit by the advocate commissioner on 18/07/2013. This would also not help the respondent in showing as to why the tenanted premises was found closed on 18/07/2013 with all indications of non- occupation or non use. 12. Further, in Ext.C3 report, the advocate commissioner reports the presence of two women employees in the shop. However, the respondent when examined as RW1 has no such case. In fact, he deposed that he has only one worker and that he started engaging a worker only after the year 2013. If that be so, who is the worker that he is referring to in his counter? Even assuming that he had a worker in his shop, no documentary evidence has been produced to substantiate the same. The RCC based on the precedents referred to in the judgment and on a proper appreciation of the evidence arrived at the proper conclusion regarding the ground under Section 11(4)(v). However, the RCAA on an incorrect understanding of the provision of law has wrongly interfered with the order of the RCC. As the appellate authority has apparently gone wrong, the finding of the appellate authority needs to be interfered with. In the result, the rent control revision is allowed. The impugned judgment is set aside and the order of the RCC is restored. Taking into **R.C.R.No. 164 of 2018** **13** account the facts and circumstances in the case, we deem it appropriate and reasonable to grant the respondent six months' time to vacate the building on condition that he files an undertaking before the RCC on or before **10/02/2023** to vacate the tenanted premises within a period of six months from today and also on condition that the respondent pay the arrears of rent if any, on or before 10/02/2023 and also continue to pay the monthly rent on or before the 10[th] day of every succeeding month till he vacates the building. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **P.B.SURESH KUMAR JUDGE** **Sd/C.S.SUDHA JUDGE** jms/ak