IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN
TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929
RCRev..No. 60 of 2008()
----------------------RCA.55/2003 of ADDL. DISTRICT COURT (ADHOC), THALASSERY RCP.43/2001 of MUNSIFF COURT, PAYYANNUR ....................
## PETITIONERS/RESPONDENTS/RESPONDENTS:
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1. KIZHAKKE PURAYIL SAFIYATH, AGED 64 YEARS
- W/O. LATE NANGARATHU MOOSA, BUSINESS,UDUMBUMTHALA, THEKKE TRIKARPURA, HOSDURG TALUK.
2. KIZHAKKE PURAYIL AHAJMMED, AGED 44 YEARS S/O. LATE NANGARATHU MOOSA, BUSINESS,UDUMBUMTHALA, THEKKE TRIKARPURA, HOSDURG TALUK.
3. KIZHAKKE PURAYIL ABDURAHIMAN, AGED 37 S/O. LATE NANGARATHU MOOSA, BUSINESS,UDUMBUMTHALA, THEKKE TRIKARPURA, HOSDURG TALUK.
BY ADV. SRI.C.MURALIKRISHNAN (PAYYANUR)
RESPONDENTS: PETITIONERS/PETITIONER:
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1. KRISHNA JANAKI, W/O. LATE MURALIDHARAN, RESIDING AT 51 CHINTHA VALAPPU FLAT,RAM MOHAN ROAD KASABA AMSOM, DESOM, P.O. KASABA, KOZHIKODE DIST.
2. JAMUNA SATHYAPRADEEP, D/O.MURALIDHARAN, RESIDING AT 51 CHINTHA VALAPPU FLAT,RAM MOHAN ROAD KASABA AMSOM, DESOM, P.O. KASABA, KOZHIKODE DIST.
3. JAGATHA RAJENDRAN, D/O.MURALIDHARAN, RESIDING AT 51 CHINTHA VALAPPU FLAT,RAM MOHAN ROAD KASABA AMSOM, DESOM, P.O. KASABA, KOZHIKODE DIST.
4. JALAJA M., D/O. MURALIDHARAN,
RESIDING AT 51 CHINTHA VALAPPU FLAT,RAM MOHAN ROAD KASABA AMSOM, DESOM, P.O. KASABA, KOZHIKODE DIST.
BY ADV. SRI.T.K.VIPINDAS FOR CAVEATOR
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
**K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------R.C.R.NO.60 OF 2008-F -------------------------------------------------------------Dated this the 18[th] day of March, 2008.**
## **O R D E R**
## **Balakrishnan Nair, J:**
The revision petitioners were the respondents before the appellate authority and the counter petitioners before the Rent Control Court. The respondents herein are the landlords.
2. The landlords moved for eviction of the scheduled room under Section 11(4)(v) of the Rent Control Act. The material averments regarding the said point in the R.C.P were that the tenants paid the rent only up to October, 2001 and thereafter the tenants ceased to occupy the building for the last two years. It was kept unoccupied without any reasonable excuse.
3. The petitioners herein denied the allegations of the landlords and submitted that the building was being used as a room for storing bakery items. The tenants are running a bakery in the ground floor of the building. The demised room is a room on the upstairs of the building. When the Commissioner visited the
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said room, in fact, bakery items were stored in it. Some cartons containing chappals were also kept by one Mr. Hamsa Haji, who is a relative of the tenants, doing business in one of the rooms in the same building. The Commissioner proceeded on the footing that all the cartons contained only chappals. In fact, some of them contained bakery items also. So, the building was actually in occupation of the tenants on the date of the visit of the Commissioner also.
4. The Rent Controller raised necessary issues and from the side of the landlords, Ext.A1 rent kachit was marked and one of the landlords was examined as PW1. From the side of respondents, Exts.B1 to B4 series, B5, B6 series and B7 were marked. One of the tenants was examined as RW1. The Rent Controller dismissed the R.C.P. The aggrieved landlords appealed. The appeal was heard and allowed by the appellate authority. Hence, this revision at the instance of the tenants challenging the appellate order.
5. The appellate authority mainly relied on the Commissioner's report and also the omission of the tenants to produce some of the
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relevant documents like stock register, sales tax registration etc., to hold in favour of the landlords.
6. We heard the learned counsel for the petitioners, who vehemently attacked the above finding of the Rent Control Appellate Authority. According to him, as per the pleadings of the landlords, the room was remaining closed for the last two years. But, when the ex-parte Commissioner visited the premises, it was found that the room was remaining half opened. So, the very foundation of their case was knocked down by the Commissioner's report. It is also submitted that, from the side of the landlords, the person, who receives rent from the tenant and from whom they came to know that the room is remaining closed for two years, was not examined. So, the best evidence from the side of the landlords was withheld. The learned counsel also submitted that the finding of the Commissioner that on the date of the first inspection there were only chappals in the room is factually incorrect. Some bakery items were also stored there. So, the tenants continued to be in occupation apart from being in possession. So, the finding of the appellate authority is liable to be interfered. The learned counsel also relied on the decision of
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this Court reported in **Mathai Antony v. Abraham** (2004 (3) KLT 169) in support of this submission. Special reference was made to paragraph - 4 of that judgment. The Commissioner has reported that when he visited the room, shutter of the room was remaining opened by about one meter. There were cobweb, dust etc., in the shutter and also in the room. There were about 50 cartons with labels showing the names of certain chappals manufactured by different companies. Ten of them were opened and all of them were found to contain only chappals. The untidy condition in which the room was found would point to the fact that it was not being regularly used. The presence of the chappals in the room would show that somebody else is in occupation of the room. The appellate authority relied on the above circumstances. It also noticed that the petitioners are running a business which requires registration from the Sales Tax Department. So, they are bound to maintain the stock register. They will also have the registration certificate which would show that the premises where the business is conducted including the godown used by them. The petitioners could have produced those documents to show that the above demised room was being used as a godown. Since the tenants failed to produce those documents, the appellate authority drew
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adverse inference against them and it was held that the tenants are not using the room or rather occupying the room. It was also held that the relative of the tenants engaged in chappal business was actually occupying it.
7. We find that it is a plausible view on the facts. In normal circumstances no bakery man will store bakery items in such an untidy condition. Further, appearance of the carton containing bakery items will be different from the appearance of the cartons in which chappals are packed. So, if bakery items were actually stored, the Commissioner would have definitely noticed it. The learned counsel for the petitioner pointed out that if the tenants were given notice, they would have pointed out the existence of bakery items in the room at the time of first visit of the Advocate Commissioner. Absence of notice to the tenants will not affect the credibility of the version of the Commissioner, if that is otherwise found to be acceptable.
8. Going by the facts disclosed, we feel it is inherently improbable that the tenants were storing bakery items in such an untidy room and if bakery items were actually stored there, the
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Advocate Commissioner would not have omitted to notice the same. So, the view taken by the appellate authority regarding nonoccupation of the room by the tenants based on the Commissioner's report is a plausible view on the facts. Adverse inference drawn for non-production of the two documents by the tenants also cannot be described as illegal or improper.
9. It is true that the person, who was collecting rent on behalf of the landlords, was not examined. But, non-examination of the said person is not fatal to the case of the landlords provided, from other materials on record, an inference in favour of the landlords can be drawn. We are of the view that the view taken by the appellate authority in favour of the landlords is fully justified in the light of the materials on record.
10. Though the case of the landlords is that the room was remaining closed for two years, even if the room is found partially opened on the date of the inspection, the same will not have the effect in knocking down the case of the landlords. The room was remaining half opened for the occupation of the relative of the tenants. So, the said fact highlighted by the learned counsel for
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the petitioners, which we have already noticed earlier, will not affect the merit of the case of the landlords. We notice that the decision relied on by the learned counsel for the petitioners will not in any way support the case of the tenants. No other ground was urged.
In the result, the revision petition fails and it is dismissed.
## **K. BALAKRISHNAN NAIR, JUDGE**
## **P.N. RAVINDRAN, JUDGE.**
**cl**
