Geetha Abraham v. The Society for the Prevention of Cruelty to Animals, Kannur

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ``` RCREV. NO.73OF 2024 ``` ``` JUDGMENT DATED 25.11.2023 IN RCA NO.41 OF 2019 OF ADDITIONAL DISTRICT COURT - II, THALASSERY ARISING OUT OF THE ORDER DATED 30.01.2019 IN RCP NO.98 OF 2017 OF ADDITIONAL MUNSIFF COURT, KANNUR ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT`** ``` GEETHA ABRAHAM AGED 62 YEARS CHAND MANDIR, P.O. KADALAYI, KANNUR, PIN - 670003 ``` ``` BY ADVS. SUSHANTH.J. PRASANTH V.C. C.K.PREM RAJ VRINDA PAUL M.T.MAMACHAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` THE SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS,KANNUR REPRESENTED BY ITS SECRETARY NEAR MUNICIPAL OFFICE, KANNUR, PIN - 670002 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev) No.73 of 2024 ## **O R D E R** ## G. Girish, J. The tenant in R.C.P.No.98 of 2017 of the Rent Control Court, Kannur, who claims to be conducting a Dental Clinic in the petition schedule building, is the revision petitioner. The respondent-Society represented by its Secretary, which is the landlord of the leased building, had instituted the above petition seeking eviction of the petitioner upon the grounds envisaged under Sections 11(2)(b) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The Rent Control Court declined eviction under Section 11(2)(b), but directed the tenant to handover vacant possession of the petition schedule building to the landlord on the ground of cessation of occupation envisaged under Section 11(4)(v) of the Act. The Rent Control Appellate Authority (Additional District Judge-II), Thalassery upheld the above order and dismissed the appeal filed by the tenant. It is thus that the petitioner-tenant is before this Court with this revision. 2. Before the Rent Control Court, the Secretary of the respondent-Society was examined as PW1, and Exts.A1 to A5 marked as documents from the part of the landlord. An Advocate Commissioner who conducted local investigation and filed Exts.C1 to C4 reports before the trial court, was examined as PW2. The tenant 3 R.C.(Rev) No.73 of 2024 and one witness were examined as RW1 and RW2, and Exts.B1 to B4 were marked as documents from the part of the tenant. It is on the basis of the above evidence that the Rent Control Court ordered eviction of the petitioner-tenant on the ground of cessation of occupation envisaged under Section 11(4)(v) of the Act. In the appeal preferred before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery as RCA No.41 of 2019, the main challenge was the locus standi of the person who instituted R.C.P.No.98 of 2017 to represent the landlord-Society and seek eviction. The Appellate Authority, after a re-appraisal of evidence, repelled the above objection as well as the challenge against the entitlement of the landlord to get possession of the petition schedule building on the ground envisaged under Section 11(4)(v) of the Act, and dismissed the appeal. In the present revision also, the substantial challenge is against the locus standi of the landlordSociety to seek eviction of the tenant from the petition schedule building. 3. Heard the learned counsel for the revision petitioner. 4. The point to be decided in this revision is whether the concurrent findings of the Rent Control Court and the Appellate Authority directing eviction of the petitioner-tenant require any interference. 4 R.C.(Rev) No.73 of 2024 5. Before this Court, the petitioner-tenant has sought to bring on record the photocopy of the letter dated 12.02.2024 from the Secretary of District Panchayat, Kannur to the petitioner-tenant as additional evidence to be considered in this revision proceedings. I.A.No.2 of 2024 filed by the petitioner with the above request has been dismissed today since the petitioner could not establish any of the requirements envisaged under Order XLI Rule 27 of the Code of Civil Procedure for the production of additional evidence in this revision. 6. In **Nabeel K. v. Dr. P. Muhammad Ibrahim [2018 (5) KHC 499]** , a Division Bench of this Court has held that the Appellate Authority is not bound to receive evidence invariably, whatever may be the evidence, produced in appeal, as if it was produced before the Rent Control Court, and that the parties are having no right to adduce evidence before the Appellate Authority as of right. The aforesaid decision has been rendered by interpreting the scope and applicability of the terms ‘if necessary’ and ‘as it thinks fit’ envisaged in Section 18(3) of the Act. It is observed in the aforesaid decision that the above terms give a discretionary power to the Rent Control Appellate Authority either to receive the evidence or reject the same in appeal. 5 R.C.(Rev) No.73 of 2024 7. In **Parameswaran Nair P. N. v. For Pala Brahmana Samooham Trust and Others [2017 (5) KHC 620]** , a Division Bench of this Court has held that in a revision petition, party cannot be permitted to produce document as additional evidence unless he establishes that notwithstanding the exercise of due diligence, such document was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the order was passed against him. The above decision has been rendered by interpreting the scope and applicability of Order XLI Rule 27 of the Code of Civil Procedure, 1908 in the context of the power of revision envisaged under Section 20 of the Act. 8. In the case on hand, the petitioner-tenant could not establish that in spite of exercise of due diligence, the letter sought to be brought in evidence was not within his knowledge or that even after the exercise of due diligence, she could not produce the above letter before the Rent Control Court. In the above circumstances, it is not possible to accede to the request of the petitioner-tenant to accept the letter produced now before this Court, as additional evidence in this revision proceedings. 9. It is the contention of the petitioner-tenant that the District Collector, Kannur, who is the de-jure chairman of the landlord-Society, has not delegated or transferred his powers to 6 R.C.(Rev) No.73 of 2024 anybody including the present Secretary of the Society, and hence the person who instituted R.C.P.No.98 of 2017 before the Rent Control Court was not entitled to represent the landlord-Society. The challenge of the petitioner in the above regard has been rightly repelled by the Rent Control Court and the Appellate Authority by relying on Clause 48 of the Memorandum of Association of the landlord-Society which was marked as Ext.B4, wherein it is stated that the petitioner-Society empowers the Secretary of the Society to initiate any legal action. The Rent Control Court has also observed in its order that Ext.B2(a) Minutes Book would reveal that PW1 is the present Secretary of the landlord-Society. 10. Another objection raised by the petitioner-tenant against the locus standi of the Secretary of the Society in filing Rent Control Petition is that with the enactment of the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001, the landlord-Society has ceased to exist and that the Society constituted with the District Collector as Chairman in accordance with the aforesaid Rules, alone is having jurisdiction to function for the prevention of cruelty to animals as stipulated under that Rules. The challenge raised by the tenant in the above regard has been overruled by the Appellate Authority by referring to the decisions of this Court in the Rent Control Revisions 7 R.C.(Rev) No.73 of 2024 numbered as 5 of 2013, 8 of 2013, 9 of 2013, 11 of 2013, 12 of 2013, 13 of 2013, 14 of 2013, 41 of 2013 and 45 of 2013 in which it was held that the Society being one registered under the Societies Registration Act, 1860, it will continue to exist unless it is dissolved in terms of the provisions contained in the Statute, and that in the absence of any law prohibiting a Society registered under the Societies Registration Act, 1860 in taking measures for achieving the object of the Society, it cannot be said that the Society cannot function. The submission of the learned counsel for the landlord that the decision rendered by this Court in the above regard has been upheld by the Apex Court, is also mentioned in the impugned judgment of the Appellate Authority. There is absolutely no reason to take a different view in that matter from that which has been adopted in the impugned judgment of the Appellate Authority. 11. The petitioner-tenant had also assailed the competence of the respondent-landlord to institute the rent control proceedings by contending that the District Collector, Kannur had dissolved the landlord-Society. The challenge in the above regard has been rightly repelled by the Rent Control Court by stating that in Ext.A4 judgment of the Munsiff’s Court, Kannur in O.S.No.438 of 2001, it was held that the landlord-Society has not ceased to exist or become defunct and that the District Collector did not have the power to dissolve that 8 R.C.(Rev) No.73 of 2024 Society. Therefore, the challenge raised by the petitioner-tenant against the locus standi of the person who instituted the Rent Control Petition would no more survive. 12. Coming to the issue involved in this proceedings regarding the cessation of occupation of petition schedule building without any reasonable cause by the petitioner-tenant, the Rent Control Court as well as the Appellate Authority mainly relied on the findings of the Advocate Commissioner in Ext.C1 report to arrive at the conclusion that the said building was being left unoccupied for a long time. The trial court and the Appellate Authority placed reliance on the particulars stated in the Commission Report about the existence of the veranda of the petition schedule building covered with cobwebs and dust and dumped with waste materials and flex boards, with the windows and doors closed, and the name board of the Dental Clinic damaged. 13. The Rent Control Court and Appellate Authority also delved in detail about the inability of the petitioner-tenant to bring on record any document to show that she has been conducting a Dental Clinic in the petition schedule building. The conduct of the tenant who failed to produce any documents before the trial court about her Dental practice in the petition schedule building, notwithstanding her affirmations in her testimony as RW1 that she 9 R.C.(Rev) No.73 of 2024 had got documents to show that she had treated patients in that building prior to the period of inspection of the Advocate Commissioner, and also that she has got licence from the Corporation for running the Dental Clinic in the petition schedule building, can only show that the contention of the landlord about the cessation of occupation of the petition schedule building without any reasonable cause, is well founded. 14. In a case where the tenant claims occupation of the leasehold premises for his business or commercial purpose, it is incumbent upon him to bring on record convincing evidence to show that the business or trade claimed by him, is actually being conducted in the leased building. A mere contention of physical possession of the building is not sufficient in such cases where the landlord alleges cessation of occupation of the building by the tenant for his trade or business. 15. While interpreting the law on this point, the Apex Court has held in **Dunlop India Limited v. A.A.Rahna and Another [(2011) 5 SCC 778]** as follows in paragraph No.17 of that judgment: “17. The word "occupy" used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building 10 R.C.(Rev) No.73 of 2024 is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the Court may presume that he has ceased to occupy the building or abandoned it. If the building is let out for business or commercial purpose, complete cessation of the business / commercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building.” ## 16. In **Mahesh Babu v. Kuttiyil Meethal Moidu [2017 (5)** **KHC 254]** a Division Bench of this Court has held that the word ‘occupy’ used in Section 11(4)(v) of the Act has to be given a meaning so as to hold that the tenant is actually using the premises and is not having a mere physical presence or possession. Paragraph No.6 of the order of this Court in the abovesaid case reads as follows: “6. On the basis of Ext.C1 report, the Rent Control Court found that the petitioner could not discharge his initial burden and that the respondent ceased to occupy the petition schedule building on the date of filing the petition. In the appeal, on the other hand, the Appellate Authority meticulously analyzed the Commission report particularly in view of the statutory requirements constituting ground of eviction under Section 11(4)(v) of the Act. The Appellate Authority has relied on Liji Agencies v. Raghunath, 2012 (1) KHC 604 : 2012 (1) KLT 665 : 2012 (1) KLJ 621 wherein this Court held that occupation in the context of Section 11(4)(v) with respect to a commercial building means occupation by conducting of 11 R.C.(Rev) No.73 of 2024 business and not a mere physical presence in the shop. In view of the above decision the Appellate Authority held that the word 'occupy' has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. We find that the above view by the Appellate Authority is supported by the decision of this Court in Mathai Antony v. Abraham, 2004 KHC 1107 : 2004 (3) KLT 169 : 2004 (2) KLJ 379, wherein it is held that the word 'occupy' in the context of Section 11(4) (v) has to be understood in the light of object and purpose of the Rent Control Act in mind. Further it was held that the word 'occupy' in certain context indicates mere physical presence but in other context, actual enjoyment. We are of the opinion that as far as a commercial occupation is concerned, mere physical presence without conducting the business will not satisfy the requirement constituting ground of eviction under Section 11(4)(v) of the Act. The Appellate Authority is justified in analyzing the evidence on record in view of the legal proposition held above.” 17. As far as the present case is concerned, the Rent Control Court as well as the Appellate Authority are seen to have appreciated the evidence in the correct perspective and arrived at the conclusion on the basis of the materials on record that the petitioner-tenant ceased to occupy the petition schedule building, without any reasonable cause, continuously for a period of more than six months prior to the institution of the R.C.P, and thus the respondent-landlord was entitled to have possession of the said building on the ground envisaged under Section 11(4)(v) of the Act. Needless to say that 12 ## R.C.(Rev) No.73 of 2024 there is absolutely no scope for any interference with the concurrent findings of the Rent Control Court and the Appellate Authority in the above regard. Accordingly, we find no merit in this revision, and order its dismissal. However, the respondent-tenant in the Rent Control Petition will be granted two months’ time to vacate the petition schedule building if she is ready to abide by the conditions stipulated hereunder: - (i) The respondent-tenant 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 she will surrender vacant possession of the petition schedule building to the petitioner-landlord within two months from the date of this order and that, she shall not induct third parties into possession of the petition schedule shop building; - (ii) The respondent-tenant 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 month, without any default; - (iii) Needless to say, in the event of the respondent-tenant 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 13 R.C.(Rev) No.73 of 2024 schedule building will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. (sd/-) (sd/-) **G. GIRISH, JUDGE** jsr/vgd 14 R.C.(Rev) No.73 of 2024 ``` APPENDIX OF RCREV. 73/2024 ``` ## **`PETITIONER’S ANNEXURES`** ``` ANNEXURE A1 THE REPLY RECEIVED FROM THE"NAVA KERALA SADAS" WITH NUMBER KNR2285 DATED 12.02.2024 ```