K P Sasidharan v. Nafshar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936 ## **RCRev..No. 310 of 2014** AGAINST THE JUDGMENT IN RCA NO.43/2010 ON THE FILE OF THE COURT OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), PALAKKAD DATED 23-07-2014 AGAINST THE ORDER IN RCP NO.6/2009 ON THE FILE OF THE RENT ## REVISION PETITIONER/APPELLANT/ RESPONDENT: K P SASIDHARAN, AGED 49 YEARS S/O APPUKUTTAN, GOPI TIME HOUSE, HAJIYAR BUILDING, VADAKKENCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU ## RESPONDENT/RESPONDENT/ PETITIONER: NAFSHAR, AGED 25 YEARS S/O A. ABDUL NAZAR, HAJIYAR RICE MILL, AAMAKULAM, KANNAMBRA AMSOM, VADAKKENCHERRY, ALATHUR TALUK PALAKKAD DISTRICT 678 686. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.D.RAJAN, JJ.** **---------------------------------------------------R.C.R. NO.310 OF 2014** **---------------------------------------------------Dated this the 21[st] day of November, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** The tenant challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 2. The petitioner is the respondent in R.C.P.No.6 of 2009 on the file of the Rent Control Court (Munsiff's Court), Alathur. The Rent Control Petition was filed under Sections 11(2)(b) and 11(4)(v) of the Act. The shop room was leased out to the tenant on a monthly rent of ₹125/-. According to the landlord, the tenant kept the rent in arrears. According to the landlord, for the last 1½ years the tenant ceased to occupy the petition schedule building. The tenant is a watch repairer by profession. He was running a shop under the name and style “Gopi Watch Works”. ## **R.C.R. NO.310 OF 2014** :: 2 :: 3. The tenant denied the allegation that he ceased to occupy the building as alleged by the landlord. 4. Before filing the Rent Control Petition, the landlord issued a notice to the tenant stating that the tenant had kept the rent in arrears and that he had ceased to occupy the petition schedule building. The Rent Control Petition was filed after about three months. An emergent Commission was taken out. The Commissioner reported that the tenant was found doing business in a temporary shed situated about fifteen metres away from the petition schedule building. The Commissioner could also see the tenant engaged in doing repairing work of watches and a customer being present there. The Commissioner inspected the petition schedule room as well. He found that the tables and chairs were not in use and the articles found there including the machinery for repair were covered with dust. The Commissioner expressed his opinion in the report that the shop room was not being used for a long time in the recent past. The articles and tools found in the shop room were found not being used in the recent past. ## **R.C.R. NO.310 OF 2014** :: 3 :: 5. In the objection filed to the Commissioner's report, the tenant stated that the temporary shed where watch repairing works were going on belonged to his brother and the tenant had gone there to enquire about the ailment of the mother-in-law of his brother. But when examined as RW1 in Court, the tenant stated that the Commissioner could find his presence in the temporary shed when he went there to purchase some parts of watches and not for any other purpose. The contradictory stand taken by the tenant on this crucial aspect was noticed by the Rent Control Court. 6. The tenant admitted in evidence that he is not having any licence from the Panchayat for running the shop. He has not paid profession tax since 1986-87 and there is no explanation for not remitting the profession tax. The electricity connection to the shop was found disconnected and it is admitted that the disconnection took place more than four years before. 7. The tenant examined RW2 to show that the temporary ## **R.C.R. NO.310 OF 2014** :: 4 :: shop is being occupied by the tenant's brother. RW2 stated that the temporary shed was entrusted to him in March 2010 while the tenant's brother went abroad. The Rent Control Petition was filed in 2009. Therefore, the Rent Control Court rightly held that the evidence of RW2 would not help the tenant to prove the contention raised by him. 8. The Rent Control Court passed an order under Section 11 (4)(v) of the Act in favour of the landlord. On appeal by the tenant as R.C.A.No.43 of 2010, the Rent Control Appellate Authority confirmed the findings of the Rent Control Court. In **Mathai Antony** v. **Abraham (2004 (3) KLT 169)** , interpreting the word “occupation” occurring in Section 11(4)(v) of the Act, a Division Bench of this Court held as follows: “4. ....... The word “occupy” occurring in S.11(4) (v) has got different meaning in different context. The meaning of the word “occupy” in the context of S.11(4) (v) has to be understood in the light of the object and purpose of the Rent Control Act in mind. The rent control legislation is intended to give protection to the tenant, so that there will not be interference with the ## **R.C.R. NO.310 OF 2014** :: 5 :: user of the tenanted premises during the currency of the tenancy. Landlord cannot disturb the possession and enjoyment of the tenanted premises. Legislature has guardedly used the expression “occupy” in S.11(4)(v) instead of “possession”. Occupy in certain context indicates mere physical presence, but in other context actual enjoyment. Occupation includes possession as its primary element, and also includes “enjoyment”. The word “occupy” sometimes indicates legal possession in the technical sense; at other times mere physical presence. We have to examine the question whether mere “physical possession” would satisfy the word “occupy” within the meaning of S.11(4)(v) of the Act. In our view mere physical possession of premises would not satisfy the meaning of “occupation” under S.11(4)(v). The word “possession” means holding of such possession, _animus possidendi_ , means, the intention to exclude other persons. 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. .....” 9. The findings of the authorities below are concurrent. The findings are findings of fact. We do not find any ground to interfere ## **R.C.R. NO.310 OF 2014** :: 6 :: with the concurrent findings of fact arrived at by the authorities below. The order and judgment of the authorities below are not vitiated by any illegality, irregularity or impropriety warranting interference in Revision under Section 20 of the Act. Accordingly, the Rent Control Revision is dismissed. Lastly, the learned counsel appearing for the petitioner/tenant submitted that a reasonable time may be granted to the tenant to vacate the tenanted premises. Taking into account the facts and circumstances of the case, we are inclined to grant time till 31.5.2015 to the tenant to vacate the premises. Accordingly, time upto 31.5.2015 is granted to the tenant to vacate the petition schedule building on condition that he shall file an affidavit before the Rent Control Court on or before 31.12.2014, unconditionally undertaking to vacate the petition schedule building on or before 31.5.2015 and also on condition that the tenant shall deposit the entire arrears of rent, if any, before the Rent Control Court on or before 31.12.2014 and also on condition that the monthly rent shall be paid on or before 10[th] of the succeeding months. If the tenant ## **R.C.R. NO.310 OF 2014** :: 7 :: fails to comply with any of the conditions mentioned above, the landlord would be entitled to proceed with the execution. If the tenant complies with the conditions, the execution proceedings shall not be commenced/continued till 31.5.2015. **(K.T.SANKARAN) Judge** **(P.D. RAJAN) Judge** ahz/