Faizal and Fazees Husain v. Shaza Ummer and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ``` RCREV. NO. 16 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 11.09.2023 IN RCA NO.92 OF 2019 OF ADDITIONAL DISTRICT COURT - II, THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.147 OF 2014 DATED 21.03.2019 OF MUNSIFF COURT, THALASSERY ``` ## **`REVISION PETITIONERS / APPELLANT NOS.1 AND 2 / RESPONDENT`** ``` NOS.3 & 4: ``` - **`1 FAIZAL AGED 54 YEARS S/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V. ROAD, THALASSERY, KANNUR DISTRICT., PIN - 670101`** - **`2 FAZEES HUSSAIN AGED 52 YEARS S/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V. ROAD, THALASSERY, KANNUR DISTRICT, PIN - 670101`** ``` BY ADVS. M.SASINDRAN ``` ## **`SATHEESHAN ALAKKADAN`** ``` RESPONDENTS/ RESPONDENTS/ PETITIONER AND RESPONDENT NOS.2, 5 TO 10: ``` - **`1 SHAZA UMMER AGED 33 YEARS D/O.V.K.UMMER, RAZIYAS, P.O.CHIRAKKARA, THALASSERY, KANNUR DISTRICT., PIN - 670104`** - **`2 CHEEKILODAN KOOVERIYIL SARITHA AGED 40 YEARS D/O.V.K.UMMER, RAZIYAS, P.O.CHIRAKKARA, THALASSERY, KANNUR DISTRICT, PIN - 670104`** 2 RCRev.No.16 of 2024 ``` 3FOUSIYA AGED 50 YEARS D/O.LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, OV ROAD, THALASSERY NOW RESIDING AT FAZEEGHAR, NEAR VIJAYA BANK, KUTHUPARAMBA, KANNUR DISTRICT., PIN - 670101 ``` ``` 4FIROZA AGED 48 YEARS D/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V.ROAD, THALASSERY NOW RESIDING AT FAZEEGHAR, NEAR VIJAYA BANK, KUTHUPARAMBA, KANNUR DISTRICT., PIN - 670101 ``` - **`5 FAZEELA AGED 43 YEARS D/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V.ROAD, THALASSERY NOW RESIDING AT FAZEEGHAR, NEAR VIJAYA BANK, KUTHUPARAMBA, KANNUR DISTRICT, PIN - 670101`** - **`6 FARDHANA AGED 43 YEARS D/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V.ROAD, THALASSERY NOW RESIDING AT FAZEEGHAR, NEAR VIJAYA BANK, KUTHUPARAMBA, KANNUR DISTRICT., PIN - 670101`** - **`7 FEMINA AGED 40 YEARS D/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V.ROAD, THALASSERY NOW RESIDING AT FAZEEGHAR, NEAR VIJAYA BANK, KUTHUPARAMBA, KANNUR DISTRICT, PIN - 670101`** ``` 8FESMINA AGED 38 YEARS D/O. LATE ABDUL RAHMAN HAJI, ROYAL HARDWARES, O.V.ROAD, THALASSERY NOW RESIDING AT FAZEEGHAR, NEAR VIJAYA BANK, KUTHUPARAMBA, KANNUR DISTRICT., PIN - 670101 ``` ``` SRI C.P. PEETHAMBARAN - RESPONDENTS ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 RCRev.No.16 of 2024 ## **O R D E R** ## G. Girish, J. The contesting tenants in R.C.P.No.147 of 2014 of the Rent Control Court, Thalassery have filed this petition challenging the judgment dated 11.09.2023 of the Rent Control Appellate Authority (Additional District Judge-II), Thalassery confirming the order of eviction passed under SectionS 11(4)(iii) and 11(4)(iv) of the Kerala Buildings (Lease and Rent) Control Act, 1965 (for short ‘the Act’) by the Rent Control Court, Thalassery in the said rent control petition. 2. The petition schedule building, which belonged to the respondents 1 and 2 herein, was leased out to the first respondent in R.C.P.No.147 of 2014 way back in the year 1975. The first respondent (tenant) in R.C.P.No.147 of 2014 is said to have been conducting hardware business in the above said building. During the course of proceedings before the Rent Control Court, the first respondent/tenant in the said R.C.P died, and the additional respondents 3 to 10 were impleaded as his legal representatives. The additional respondents 3 and 4 in R.C.P.No.147 of 2014 are the revision petitioners herein. Respondents 1 and 2 herein (landlords) would contend that revision petitioners/tenants had closed the shop building for more than 2½ years from 01.03.2012 and ceased to occupy the said building without any reason. Respondents 1 and 2 4 RCRev.No.16 of 2024 would further contend that the business being conducted in the petition schedule building had been shifted by the predecessor of revision petitioners to another building which they have obtained in that locality. According to the landlords, the petition schedule building suffered serious damage due to continuous closure and improper usage by the tenants. Upon the above grounds, the landlords had approached the Rent Control Court, Thalassery for the eviction of the tenant, and his legal representatives on the grounds envisaged under Sections 11(4)(ii), 11(4)(iii) and 11(4)(v) of the Act. 3. The revision petitioners and their predecessor resisted the R.C.P contending inter alia that the allegation about nonoccupation of the petition schedule building and the shifting of business to another building were totally false, and that no damage or depreciation of value had been caused to the said building due to their occupation. According to the revision petitioners, the building by name ‘Royal Hardwares’ where they conducted business at O.V.Road, Thalassery, is not sufficient to keep any stock, and it is not at all possible to park any vehicle in front of the said building except during odd hours. It is further stated that the revision petitioners have been transporting goods from the petition schedule shop room which they use as godown, to the above said shop room 5 RCRev.No.16 of 2024 by name ‘Royal Hardwares’ only in late night to avoid traffic congestion. For the above reason, the petition schedule building is said to have been kept closed in day time except for the purpose of unloading materials there. Thus, it is contended that the averment that the revision petitioners ceased to occupy the petition schedule building is incorrect, and that they are actively using the said building for the purpose of their hardware business. The revision petitioners would further allege that the petition has been instituted with the sole intention to sell the petition schedule building to third parties after evicting them. 4. Before the Rent Control Court, Thalassery, the 1[st] respondent herein and one witness were examined as PW1 and PW2 and two documents marked as Exts.A1 and A2. The second revision petitioner was examined as RW1 and 11 documents were marked as Exts.B1 to B11 from the part of tenants. The commission reports prepared on 12.11.2014 and 05.10.2018, were marked as Exts.C1 and C2 respectively. After hearing both sides and evaluating the evidence adduced by both parties, the learned Rent Controller found that the respondents herein are entitled to have possession of the petition schedule building on the grounds envisaged under Sections 11(4)(iii) and 11(4)(v) of the Act and directed the revision petitioners and others to hand over the vacant possession of the 6 RCRev.No.16 of 2024 same within two months from the date of order. The eviction sought on the ground envisaged under Sections 11(4)(ii) of the Act was declined by the Rent Control Court. 5. Aggrieved by the above order of eviction, the revision petitioners herein approached the Rent Control Appellate Authority (Additional District Judge-II), Thalassery by filing R.C.A.No.92 of 2019 challenging the order of Rent Controller. It was contended in the appeal that the Rent Control Court went wrong in appreciating the facts, evidence and law and arrived at a wrong finding that the revision petitioners herein are liable to be evicted from the petition schedule building. The Rent Control Appellate Authority (Additional District Court-II), Thalassery, after hearing both sides, and evaluating the evidence adduced by the parties, and scrutinizing the order of the Rent Controller, held that there was absolutely no reason to interfere with the order of eviction passed under Sections 11(4)(iii) and 11(4)(v) of the Act. 6. In the present Revision Petition, the petitioners (appellants in R.C.A.No.92 of 2019/additional respondents 3 and 4 in R.C.P.No.147 of 2014) would contend that the judgment rendered by the Rent Control Appellate Authority is erroneous, improper and unsustainable in law and facts. According to the petitioners, the Appellate Authority wrongly appreciated the commission reports 7 RCRev.No.16 of 2024 marked in evidence and came to the wrong conclusion that there was non-occupation of the petition schedule building and shifting of business of the petitioners to another building. Thus, the revision petitioners seek to set aside the judgment dated 11.09.2023 rendered by the Rent Control Appellate Authority (Additional District Court-II), Thalassery in R.C.A.No.92 of 2019. 7. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. 8. The point to be decided in this revision petition is whether there are sufficient reasons to interfere with the findings of the Rent Control Appellate Authority (Additional District Court-II), Thalassery in the impugned judgment rendered on 11.09.2023. 9. A reading of the impugned judgment in appeal as well as the order passed by the Rent Controller in R.C.P.No.147 of 2014 would reveal that the non-occupation of the petition schedule building was established by the respondents-landlords through the evidence of the Advocate Commissioner who had conducted a local investigation in the petition schedule building and filed the commission report marked as Ext.C1. Both the above authorities have observed in their verdicts that the indications in Ext.C1 report that the petition schedule building remained closed on the two 8 RCRev.No.16 of 2024 occasions when the local inspections were conducted by the Advocate Commissioner would disclose the non-occupation of the said building by the tenant. The other circumstances pointed out in the commission report about the petition schedule building remaining full of dust, and the shutter in front of the building remaining rusted, are also adverted to in the impugned judgment as indications of non-occupation of the building by the tenants. There is absolutely no illegality or impropriety in the above findings of the authorities below. 10. This Court had the occasion to deal with an identical situation in **Mukreerakath Khadeeja and Others v. Krishna** **Janaki [2011 (3) KHC 753]** . In the aforesaid decision, a Division Bench of this Court has held in paragraphs 8 and 9 of the order as follows: _“8. It was admitted by PW1 that the petition schedule building was leased out for using it as a godown. But it is important to note that the tenants did not produce any document to show that the fancy Article or other items sold in Mahima Fancy were actually stocked in the petition schedule building. The learned counsel for the revision petitioners has very much stressed on Ext. C2, the second report filed by the Commissioner. But the inspection for second report was conducted about ten months after the first inspection. Since the inspection was had about ten months after the appearance of the revision petitioner before the court below Ext. C2 cannot be of much assistance,_ 9 RCRev.No.16 of 2024 _for, it is easy for any tenant to stage manage things and to get a report regarding the then state of affairs which would nullify the effect of the report obtained first in point of time which alone would reflect on the real state of affairs as on the date of the first inspection by the Advocate Commissioner. In a case filed under S.11(4)(v), the best mode of proof of cessation of occupation is to conduct surprise inspection of the petition schedule building by the commissioner. The salient features noted by the Advocate Commissioner would be of much help to the court to come to a conclusion as to whether the plea of cessation of occupation put forward by the landlady is true. The effect of that report cannot be nullified by adopting a stultifying strategy of getting a report after several months. Therefore, Ext. C2 is not of any help for the tenants to say that there was no cessation of occupation._ _9. It was observed by the learned Appellate Authority that the Registration Certificate issued under the Shops and Commercial Establishments Act does not show the petition schedule building as the one used by the tenant as his go down or store room. Referring to the provisions of that Act, the learned Appellate Authority found that 'go down' also would come within the definition of Shop mentioned therein. That apart if actually the petition schedule building was used as a go down there would certainly be a register showing the stock of the Articles. Whenever new items are taken into the go down it must find a place in the stock register. Similarly whenever items are taken out for sale to be conducted in Mahima Fancy that must also find a place in the register. Simply because some items were sold to Mahima Fancy by some wholesaler it cannot be said that all those items were taken to the petition schedule building. The learned Appellate Authority has thoroughly_ 10 RCRev.No.16 of 2024 _scanned the evidence and come to the conclusion that the plea of cessation of occupation put forward by the landladies is true. On a re - appraisal of the evidence we could not find anything wrong in the conclusion arrived at by the learned Appellate Authority so as to upset that finding. There is no illegality, irregularity or impropriety in the finding of the learned Appellate Authority which is the final fact finding authority under the statutory scheme. The revision, therefore, must fail. It is hence, dismissed.”_ 11. It is clear from the law laid down in the aforesaid decision that in a case filed under Section 11(4)(v) of the Act, the best mode of proof of cessation of occupation is to conduct surprise inspection of the petition schedule building by an Advocate Commissioner. As far as the present case is concerned, the report filed by the Advocate Commissioner, which has been marked as Ext.C1, assumes much importance in the above context. There is absolutely no illegality or impropriety committed by the authorities below in relying on the above evidence towards arriving at a finding that there was cessation of occupation of the petition schedule building by the tenants. 12. As regards the shifting of business of the tenants to another suitable building of the locality, the authorities below relied on Ext.B6 document produced from the part of the tenants before the Rent Controller. The above document relating to the certificate 11 RCRev.No.16 of 2024 of registration of the tenants under the Kerala Value Added Tax Rules, 2005 would reveal that the tenants had acquired other godowns with effect from 06.10.2008 for the conduct of their business. It is true that the revision petitioners had put forward a contention before the authorities below that the present buildings where they are conducting business are not sufficient for their purpose. With regard to the above contention, it has to be stated that a mere averment in the above regard in the pleadings of the tenants or in the arguments advanced before the authorities concerned will not serve any purpose. There is heavy burden upon the tenants to establish that those buildings which are under their occupation are not reasonably sufficient to meet their requirements. It has been held by this Court in **Vakkachan v. Kurian [2002 KHC 157]** that when the landlord has established that tenant is in possession of other buildings, the burden is heavy on the tenant to show that those buildings are not reasonably sufficient for the requirement of the tenant. In the case on hand, the revision petitioners have not succeeded in establishing that the buildings which are in their occupation, as revealed by Ext.B6, are not reasonably sufficient for their business. As a conclusion to the above discussion, we hold that the judgment under challenge, rendered by the Rent Control Appellate Authority, Thalassery, is neither perverse 12 RCRev.No.16 of 2024 nor patently illegal, and thus there is absolutely no reason for any interference in the said matter. 13. Having made clear the above finding by us, the learned counsel for the appellants submitted that a period of six months would be necessary for the appellants to make alternate arrangements while vacating the leasehold premises, and hence they are to be permitted to vacate the petition schedule building after six months. Learned counsel for the contesting respondents would contend that the six months’ period sought for by the appellants is too long, and that, taking into account the fact that the proceedings for eviction of the tenants had been initiated a decade ago, it is highly necessary to get the leasehold premises vacated at the earliest, and that the necessary orders are to be passed in that regard. Taking into account of all the above contentions of the learned counsel for the revision petitioners and respondents, and also considering the facts and circumstances of the case, we are of the view that the revision petitioners are to be provided a period of four months’ time for vacating the petition schedule building. 14. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent 13 RCRev.No.16 of 2024 Control Court; however by granting four months' time to the petitioners-tenants, to surrender vacant possession of the petition schedule building to the respondents-landlords, subject to the following conditions: (i) The respondents-tenants in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule building to the petitionerslandlords within four months from the date of this order and that, they shall not induct third parties into possession of the petition schedule building and further they shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; (iii) Needless to say, in the event of the respondents-tenants in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically and the petitioners-landlords 14 RCRev.No.16 of 2024 will be at liberty to proceed with the execution of the order of eviction. (sd/-) (sd/-) **G. GIRISH, JUDGE** jsr