Kallullathil Sasidharan v. Kadeesumma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RCRev..No.307 of 2009(C) ----------------------------RCA.6/2008 of ADDL. DISTRICT COURT (RENT CONTROL APPELLATE AUTHORITY), VADAKARA RCP.32/2007 of MUNSIFF COURT (RENT CONTROL), VADAKARA .................... ## PETITIONER IN RCR - APPELLANT IN RCA - RESPONDENT IN RCP ------------------------------------------------------------------------ KALLULLATHIL SASIDHARAN, S/O.KUMARAN VYDIAR, AYURVEDIC PRACTITIONER AND MERCHANT, VATAKARA AMSOM DESOM, VATAKARA TALUK. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENTS IN RCR (RESPONDENTS IN RCA - PETITIONERS IN RCP. -------------------------------------------------------------------------- 1. KADEESUMMA, W/O.ABDULLA, SWASTHAM, NETTOOR VEETTIL, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. SUHARA, W/O.ABDURAHIMAN, IN DO. DO. DO. 3. KUNHAMMAD, S/O.UMMERKUTTY, TYPIST IN - DO. DO. 4. ABDURAHIMAN, S/O. DO. PENSIONER, - IN DO. DO. 5. KUNHAMINA, W/O.ABOOBACKER, - IN DO. DO. RCR.307/2009 -2- 6. NABEESA, W/O.UMMERKUTTY, IN DO. DO. 7. K.V.ABDULLA HAJI, S/O.AMMAD, BUSINESS, RESIDING AT RASHEED MANZIL, AYANCHERI AMSOM DESOM, VATAKARA TALUK. 8. VADAKKAYIL KADEESA, W/O.ABDULLA HAJI, RESIDING AT AT DO. DO. DO. ADV. B.KRISHNAN SRI.B.KRISHNAN SRI.B.KRISHNAN FOR R1 TO R8 SRI.R.PARTHASARATHY FOR R1 TO R8 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.307 of 2009 -----------------------------------------------Dated this the 10[th] day of June, 2010 ## **ORDER** ## _Abdul Rehim, J_ The tenant in RCP.32/07 on the files of the Rent Control Court, Vatakara is in revision against the concurrent findings ordering eviction under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control Act), 1965 (for short 'the Act'). The landlords alleged that, the petition schedule shop room is not being put to any use by the tenant for about two years. Contention was that the respondent, eventhough he is opening the shop room during the morning, is thereafter working as Collection Agent of a chit fund namely, R. C. R. No.307 of 2009 -2- “Prarthana Chit Funds”. There will not be anybody in the shop room till it is being closed by the tenant, and some very old useless Ayurvedic Medicines alone are kept in bottles in the shop room, which are not fit for sale. There is no sale transactions and the shop room is being opened only as a shield against legal proceedings for eviction. 2. The Rent Control Petition was resisted contending that the respondent is doing trade in Ayurvedic medicines in the schedule room after obtaining licence and that the tenant had never kept the room permanently closed. Eventhough it is admitted that the tenant is working as Collection Agent of a chit fund, it is only for one hour on daily basis and that he is doing business R. C. R. No.307 of 2009 -3- in the scheduled room during the remaining time. 3. Evidence on behalf of the landlords consisted of oral testimonies of PW1, one among the landlords, and PW2 who is the Advocate Commissioner. Exts.A1 and A2 were marked on behalf of the landlords. Tenant was examined as RW1. RW2 is a witness examined on his behalf. Exts.B1 to B29 were marked from the side of the tenant. Ext.C1 is the Commission Report. 4. The Rent Control Court on evaluating the entire evidence, both oral and documentary, found that there is cessation of occupation by the tenant. It is noticed that, while the Advocate Commissioner visited the schedule room, neither the tenant nor any other person was present in the shop room. The Commissioner noted that only R. C. R. No.307 of 2009 -4- very few bottles of Ayurvedic medicines were seen kept in the 'Almirahs' and all such bottles were very old. Even it is noticed that the date of manufacturing in one of the bottles is 24/07/94, approximately about seven years prior to the date of inspection. Labels affixed on the bottles appeared as too old and he could not notice that no customer is coming to the shop, inspite he spent there about one hour. Eventhough tenant produced Exts.B1 to B29 documents like licenses of the Municipality, receipts for payment of electricity charges, Building Tax Receipts, Licence for Ayurvedic preparations, registration certificate etc. to show possession of the shop room, the Rent Control Court noticed that no evidence regarding actual conduct of business could be R. C. R. No.307 of 2009 -5- produced from the side of the tenant. Further, it was noticed that Ext.B29 licence for manufacture of Ayurvedic preparations was not seen renewed after 31/03/05. On evaluating the evidences Rent Control Court found that the landlords have sufficiently discharged their burden of proving cessation of occupation and that the tenant had failed in rebutting the same by proving that he is still occupying the building. It is observed that mere physical possession could not be considered as 'occupation', as contemplated under Section 11 (4)(v). In this regard, reliance was placed on the decisions of this Court in Kurian Thomas v. Sreedharan Menon (2004 (3) KLT 326) and Mathai Antony v. Abraham (2004 (3) KLT 169). Accordingly, eviction was ordered under Section -6- R. C. R. No.307 of 2009 11(4)(v). 5. In appeal filed by the tenant, contentions were raised to the effect that there is no convincing evidence to prove cessation of occupation and that there is sufficient evidence regarding possession of the shop room with its regular functioning. But the Appellate Authority concurred with the findings of the Rent Control Court to the extent that there was no actual 'occupation'. Relying on the dictum in Kurian Thomas's case (cited supra) it is observed that in order to satisfy the state of affair of 'occupation', the tenant has an obligation to show that the premises is actually put to use rather than having physical possession of the premises. The dictum in Mathai Antony's case (cited supra) and Symon v. R. C. R. No.307 of 2009 -7- Rappayi (2008(3) KLT 1210) is that, possession or rather legal possession does not by itself constitute 'occupation' and the possession must combine with something more to constitute 'occupation'. It is further observed that this Court in Kayikkattil Rajagopalan v. Gopalan (2004(2) ILR Civil 102) (2004(1) KLT S.N.54 Case No.70) held that when a building is let out for business purpose and if no business is carried on therein, the presumption is that there is cessation of occupation. On a total re-appraisal of the oral and documentary evidence, Appellate Authority found that there is no evidence to prove that the building has been put to use and that any business is being carried on therein. Hence, the Appellate Authority concurred with the findings -8- R. C. R. No.307 of 2009 ## regarding cessation of occupation. 6. Heard, Sri.K.Jayakumar, Senior Counsel appearing for the revision petitioner and Sri.C.Jayachandran, counsel appearing for the respondents. The senior counsel advanced arguments based on Ext.B29 licence for manufacture of Ayurvdeic preparations. It is contended that the tenant is a _'parambarya vaidyan'_ (practitioner in tratiditonal medicines). The question whether the traditional Ayurvedic Practioners can be permitted to practice and to manufacture Ayurvedic preparations, was an issue pending before this Court. A Division Bench of this Court had stayed continuance of such practice and only in that context Ext.B29 was not renewed after 31/03/05. Therefore, virtually the revision -9- R. C. R. No.307 of 2009 petitioner was prevented from continuing practice by preparing Ayurvedic medicines after 01/04/05. Learned Senior Counsel points out that the above fact ought to have been considered as a reasonable cause for the cessation of occupation, even if it is found that there was no business being carried on in the scheduled building. It was argued that the aspect as to whether the cessation of occupation was without any 'reasonable cause', was omitted to be considered by the courts below. The Rent Control Court had failed to enter upon any specific findings in this regard, with advertance to Section 11(4)(v), is the contention. Further argument is that the findings of the Appellate Authority in this regard is highly improper and unsustainable. R. C. R. No.307 of 2009 -10- 7. On a scanning of the impugned order of the Rent Control Court and judgment of the Appellate Authority as well as pleadings on both side, we notice that the contention now raised was never pleaded or advanced before the courts below. Nor any evidence was let in to show that the tenant was prevented in any manner from continuing with his practice or with sale of Ayurvedic Medicines. On the other hand, specific case of the tenant is that he was in occupation and was continuing business in the schedule room. Learned Senior Counsel argued that this Court can even take judicial notice of the fact that a stay order was in force preventing renewal of licence, thereby preventing the tenant from occupying the scheduled room and from putting R. C. R. No.307 of 2009 -11- the same to regular use. The said aspect should be considered as “reasonable cause” for finding that there is no cessation of occupation and for denying eviction under Section 11(4)(v), is the contention. 8. While appreciating the ground urged by the revision petitioner as above, we are afraid that we cannot entertain such arguments. Eventhough meticulous pleadings are not necessary in a rent control petition, courts are bound to arrive at conclusions based on pleadings of parties and evidence adduced on both sides. As stated above, there was neither any pleading nor any evidence adduced on behalf of the tenant setting up any reasonabe cause for non-use of the building. On the contra, pleadings and evidence were only to R. C. R. No.307 of 2009 -12- the effect that there was no cessation of occupation and the building was put to regular use by the tenant. In exercise of the revisional jurisdiction vested on this court, we are not at all justified in appreciating any contention which has no basis on pleadings and evidence. 9. The mooted question for consideration is as to whether in exercise of revisional jurisdiction this Court can look into or make a search as to whether there was any reasonable cause for the alleged non-occupation, when the cessation of occupation was not at all admitted and when the specific plea and evidence was only total denial of the alleged cessation. The “reasonable cause” contemplated under Section 11(4)(v) of the Act should be a cause which is not within the control R. C. R. No.307 of 2009 -13- of the tenant and should prevent him from putting the tenanted premises to regular use and occupation. When it comes to the case of commercial space it should be a cause which prevents the tenant from continuing with the business activity which could not be rectified by the tenant within his control of affairs. In order to get the benefit of “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 was beyond his control. In a case were there is stout denial of the allegations regarding cessation, the tenant is not justified in banking upon any “reasonable cause” which was neither pleaded nor proved to contend R. C. R. No.307 of 2009 -14- that the cessation was justifiable. Hence, we are of the considered opinion that the arguments advanced before this Court for the first time, appealing to take judicial notice of any event as 'reasonable cause' for the cessation of occupation, could not be entertained in exercise of the attenuated jurisdiction, which is revisional in nature. Therefore, we find no illegality, irregularity or impropriety with respect to the concurrent findings of the courts below. Accordingly, the revision petition deserves no merit and the same is liable to be dismissed. However, considering the totality of factual circumstances, we feel that it is only just and proper to grant reasonable time for the tenant to surrender vacant possession of the building. R. C. R. No.307 of 2009 -15- 10. In the result, while dismissing the revision petition, time is granted till 31/01/11 for the Revision Petitioner/tenant to vacate the premises, subject to the following conditions:- “The revision petitioner/tenant will file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the scheduled premises to the first respondent on or before 31/01/11 and to pay arrears of rent if any due within a period of one month from today. By the same affidavit it will be further undertaken that occupational charges at the rate of the monthly rent prevailing will be paid regularly till surrender of the scheduled premises. The affidavit as above shall be filed within a period of three weeks from R. C. R. No.307 of 2009 -16- today.” 11. The execution court is directed to put off delivery of the building till 01/02/11, once filing of the affidavit and payment of arrears of rent as well as occupational charges, as directed above, is noticed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-