IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936
RCRev..No. 247 of 2013 () --------------------------
AGAINST THE JUDGMENT IN RCA 45/2009 of RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT (ADHOC)-II), THALASSERY DATED 12-04-2013
AGAINST THE ORDER IN RCP 163/2007 of RENT CONTROLLER/MUNSIFF, THALASSERY DATED 28-11-2008
## REVISION PETITIONER/APPELLANT/RESPONDENT:
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K. BALAKRISHNAN S/O.NARAYANAN, AGED 64 YEARS, SREENARAYANA VILASAM HOTEL OLD MARKET ROAD, THALASSERY, RESIDING AT KOMATH HOUSE OMMENCHIRA, THOTTUMMAL, THALASSERY KANNUR DISTRICT.
BY ADV. SRI.C.P.PEETHAMBARAN
## RESPONDENT/RESPONDENT/PETITIONER:
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K.E.RAHMATH, AGED 59 YEARS W/O.ABDUL LATHEEF, 'RAJEENAS', NEW MAHE THALSSERY, THROUGH POWER OF ATTORNEY HOLDER NEW RAILWAY STATION, MAHE-670 701.
BY ADV. SRI.SATHEESHAN ALAKKADAN BY ADV. SRI.A.ARUNKUMAR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **K.T.SANKARAN & ANIL K.NARENDRAN, JJ.**
**-------------------------------------------------R.C.R.NO.247 OF 2013**
**-------------------------------------------------DATED THIS THE 22[nd] DAY OF JULY, 2014**
## **ORDER**
## **ANIL K.NARENDRAN J** .
The tenant is the revision petitioner. The respondent-landlady filed R.C.P.No.163/2007 before the Rent Control Court, Thalassery, under Sections 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), seeking an order to evict the tenant from the petition schedule building.
2. According to the respondent-landlady, the petition schedule building which originally belonged to one Vayalpurayil Aboobacker was taken on lease by the revision petitioner-tenant and his sister Yasodha. After the death of Yasodha, the revision petitioner-tenant is in exclusive possession of the said building. Later, the said Aboobacker assigned his right over the petition schedule building to the respondent-landlady.
3. Subsequent to the assignment, the tenant attorned to the landlady and he is continuing possession of the petition schedule building on a monthly rent of 75/-. According to the₹
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landlady, the tenant is not doing any business in the petition schedule building and he ceased to occupy the building continuously for more than two years without any reasonable cause. The landlady's brother Pokker is not having any job, who is depending upon her for his livelihood. He wants to start a stationery business in the petition schedule building after making necessary modification. In such circumstances, the Rent Control Petition was filed seeking eviction of the tenant under Section 11 (3) and 11(4)(v) of the Act.
2. The tenant contended that his father T.P.Narayanan was the original tenant and during his lifetime the tenant was permitted to occupy the petition schedule building as the sole tenant and he was conducting business therein. The need put forward by the landlady is not bona fide and that there is no cessation of occupation as alleged. Pokker, who is the brother of the landlady, is employed and he is having other buildings. The tenant's main income is that derived from the petition schedule building. There are no other suitable buildings to shift the business conducted in the said building. The tenant could not
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continue the hotel business in the petition schedule building due to the threat and obstruction caused by his nephew Shylesh Babu. So the closure of business was not deliberate or wilful.
3. On the side of the landlady her power of attorney holder was examined as PW1 and Exhibits A1 to A3 were marked. The tenant was examined as RW1 and Exhibits B1 to B23 were marked on his side. Exhibit C1 is the report submitted by the Advocate Commissioner, who was examined as CW1.
4. On an evaluation of the evidence on record, the Rent Control Court concluded that the need put forward by the landlady is not bona fide or genuine and therefore, she is not entitled for an order of eviction under Section 11(3) of the Act. Regarding the ground of eviction sought for under Section 11(4) (v) of the Act is concerned, the Rent Control Court concluded that the tenant ceased to occupy the petition schedule building for more than six months without reasonable cause and therefore, the landlord is entitled to get an order of eviction under Section 11(4)(v) of the Act.
5. Aggrieved by the order of eviction granted by the Rent
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Control Court, the tenant filed R.C.A.No.45/2009 before the Rent Control Appellate Authority, Thalassery. The said appeal ended in dismissal by judgment dated 12.4.2013 confirming the order of eviction granted by the Rent Control Court under Section 11(4) (v) of the Act. It is aggrieved by the order and judgment of the authorities below, granting order of eviction under Section 11(4) (v) of the Act, the tenant is before us in this Rent Control Revision filed under Section 20 of the Act.
6. We heard the arguments of the learned counsel for the revision petitioner-tenant and the learned counsel appearing for the respondent-landlady. The only issue to be considered is whether the authorities below were right in holding that the respondent-landlady is entitled to get an order of eviction under Section 11(4)(v) of the Act.
7. It is averred in the Rent Control Petition that the tenant is not doing any business in the petition schedule building for the last more than two years and he ceased to occupy the same without any reasonable cause. A commission was taken out to inspect the petition schedule building, who inspected the
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premises on 7.11.2007 and submitted Exhibit C1 report. The commissioner noticed that the petition schedule building is in an abandoned condition. Though the building was electrified, there were no bulbs and the entire premises was covered with dust. The commissioner could not notice any signs of business being conducted in that premises and the neighbouring shopkeepers have also told the commissioner that the hotel room was closed for the past one year. According to the tenant the reason for not conducting business in the petition schedule building is the obstruction caused by his nephew Shylesh Babu and the consequent litigation. It has come out in evidence that Shylesh Babu obstructed the smooth functioning of the hotel and the tenant was constrained to approach this Court seeking police protection. Exhibit B20 is the order dated 27.2.2007 of this Court in W.P.(C)No.6475/2007 directing the police to see that law and order is maintained and that the civil court orders are not violated. According to RW1, the hotel had to be closed due to the interference of Shylesh Babu. However, there is nothing on record to indicate that there was any sort of interference or
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obstruction from the side of Shylesh Babu after the issuance of Exhibit B20 order passed by this Court. In spite of Exhibit B20 order, the tenant did not run the hotel business in the petition schedule building. There is also no evidence to show that the tenant made any attempt after Exhibit B20 order to continue the said business, which was obstructed by Shylesh Babu in any manner. The tenant failed to offer any reasonable cause for the closure of hotel business conducted in the petition schedule building.
8. In **Dunlop India Limited** v. **A.A.Rahna and another (2011 (5) SCC 778)** the Apex Court held that, “the initial burden to show that the tenant has ceased to occupy the building continuously for six months is always on the landlord. He has to adduce tangible evidence to prove the fact that as on the date of filing the petition, the tenant was not occupying the building continuously for six months. 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 six months. No strait-jacket
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formula can be evolved for determining as to what is the reasonable cause and each case is required to be decided keeping in view the nature of the lease, the purpose for which the premises are let out and the evidence of the parties.”
9. From the evidence on record, especially Exhibit C1 commission report, which was marked through the Advocate Commissioner who was examined as CW1, it is clearly established that the petition schedule building was lying unoccupied for more than six months continuously and it was in an abandoned condition. There is tangible evidence on the side of the landlady to prove that as on the date of filing the petition, the tenant ceased to occupy the said building continuously for a period of six months prior to the filing of the petition. The tenant failed miserably in discharging his burden to prove that there was reasonable cause for his having ceased to occupy the said building for a continuous period of six months. In such circumstances, the Rent Control Court rightly held that the landlady is entitled to get an order of eviction under Section 11 (4)(v) of the Act and the Rent Control Appellate Authority concurred with that finding of the Rent Control Court. Such
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findings of the authorities below cannot be said to be erroneous or perverse, warranting any interference of this Court in exercise of its revisional jurisdiction under Section 20 of the Act. We find absolutely no illegality, irregularity or impropriety in the findings to that effect in the impugned order and judgment.
In the result, the Rent Control Revision is dismissed. No order as to costs.
Sd/- **K.T.SANKARAN** , **JUDGE**
Sd/- **ANIL K.NARENDRAN, JUDGE**
dsn
