Kuneemmal Kunchikelu v. Ebrahim N.K.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` RCREV.NO.217OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 16.08.2022 IN RCA 23/2021 OF ADDITIONAL DISTRICT & SESSIONS COURT, VATAKARA RCP 4/2019 OF MUNSIFF COURT, VATAKARA ``` ``` REVISION PETITIONER/APPELLANT/RESPONDENT: ``` ``` KUNEEMMAL KUNCHIKELU AGED 67 YEARS RESIDING AT 'VALIYA KANNANKOTTU', AYANCHERY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE, PIN – 673541 ``` ``` BY ADVS. R.SUDHISH M.MANJU SAJEEVAN KURUKKUTTIYULLATHIL ``` ``` RESPONDENT/RESPONDENT/PETITIONER: ``` ``` EBRAHIM N.K. AGED 51 YEARS RESIDING AT 'NALOM KOROL HOUSE', AYANCHERY AMSOM DESOM, AYANCHERY POST, VATAKARA TALUK, KOZHIKODE, PIN – 673541 ``` ``` BY ADVS. U.P.BALAKRISHNAN U P RAJAN I.(K/637/2000) C.H.ABDUL RASAC(K/912/2005) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.R No.217 of 2022 ## **ORDER** ## G. Girish, J. The respondent-tenant in R.C.P.No.4 of 2019 of Rent Control Court, Vatakara, has filed this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') against the judgment dated 16.08.2022 of the Rent Control Appellate Authority, Vatakara in R.C.A.No.23 of 2021, which confirmed the eviction ordered by the Rent Control Court in the above R.C.P under Section 11(4)(v) of the said Act. 2. The revision petitioner-tenant was conducting the business of sale of mats, baskets and household implements in the petition schedule room let out to him by the respondent-landlord from 21.06.2004 onwards. Alleging that the petitioner-tenant ceased to occupy the petition schedule room from April, 2015 onwards without any reasonable cause, the respondent-landlord sought eviction by instituting the above R.C.P. The petitioner-tenant contested the R.C.P, by contending that he used to take orders from houses and supply the articles on instalments, and that the petition schedule shop room was being opened only for the purpose of taking the articles whenever there was a demand for the same. The petitioner-tenant further contended that the petition for eviction has been filed, without any merits, and that the respondent-landlord 3 R.C.R No.217 of 2022 resorted to the above proceedings, only due to the reason that the petitioner-tenant refused to pay the exorbitant rent demanded by him. In the trial before the Rent Control Court, the respondentlandlord and the Advocate Commissioner appointed in the R.C.P were examined as PW1 and PW2, and two documents marked as Exts.A1 and A2 on the part of the landlord. The tenant was examined as RW1 and five documents were marked as Exts.B1 to B5. The commission reports prepared by PW2 on two occasions were marked as Exts.C1 and C2. After an evaluation of the above evidence, and hearing both sides, the Rent Control Court allowed the petition and ordered eviction of the tenant under Section 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965. Though the tenant challenged the above order by filing R.C.A.No.23 of 2021 before the Rent Control Appellate Authority, Vatakara, he could not succeed. It is in the above circumstances, that the petitioner-tenant has approached this Court with this revision against the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent-landlord. 4. The point to be decided is whether the concurrent findings of the Rent Control Court and the Rent Control Appellate 4 R.C.R No.217 of 2022 Authority, Vatakara, directing the eviction of the petitioner-tenant under Section 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965, is liable to be interfered with. 5. As already stated above, the respondent-landlord had tendered oral evidence as PW1, in support of his averments in the Rent Control Petition. In addition to that, the respondent-landlord relied on the findings of PW2, the Advocate Commissioner, in his report marked as Ext.C1, towards showing that the petition schedule shop room was being kept un-occupied by the petitioner-tenant. That apart, the respondent-landlord brought on record through Ext.A2 meter history, the particulars of electricity consumption of the petition schedule shop room, for establishing the fact that the said room was being kept unused for the past several years. The Rent Control Court as well as the Rent Control Appellate Authority took notice of the total non-consumption of electricity at the petition schedule shop room for a period of more than three years from 17.12.2015 to 12.02.2019, and observed that the continuous nonconsumption of electrical energy for such a long period clearly indicated the non-occupation of the petition schedule shop room by the petitioner-tenant. It is on the basis of the evaluation of the aforesaid evidence, that the Rent Control Court and the Appellate Authority arrived at the finding of cessation of occupation of the 5 R.C.R No.217 of 2022 petition schedule shop room by the petitioner-tenant, and ordered eviction on that ground. There is absolutely no illegality, impropriety or error in the above findings of the said authorities, on the basis of the evidence on record. 6. It is well settled that the word ‘occupy’ used in Section 11(4)(v) of the Act is not synonymous with legal possession in the technical sense. If the building is let out for business or commercial purpose, complete cessation of the business being conducted in that building would amount to non-occupation by the tenant even if the said building could be technically said to be under the possession of the tenant. The proposition of law in the above regard has been laid down by the Apex Court in **Dunlop India Limited v. A.A.Rahna and Another [(2011) 5 SCC 778]** wherein it has been held in paragraph No.17 of the said decision as follows: “17. The word "occupy" used in S.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 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 6 R.C.R No.217 of 2022 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.” 7. Following the above decision of the Apex Court, a Division Bench of this Court in **Mahesh Babu v. Kuttiyil Meethal Moidu [2017 (4) KLJ 736]** : **[2017 (5) KHC 254]** observed in paragraph 6 of that order 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 S.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 S.11(4)(v) with respect to a commercial building means occupation by conducting of 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 S.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 7 R.C.R No.217 of 2022 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 S.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.” 8. As far as the present case is concerned, the Rent Control Court as well as the Rent Control Appellate Authority have rightly held on the basis of the evidence on record that the petition schedule shop room let out to the revision petitioner for his business of sales of mats, baskets, household implements etc., was kept idle without any use for a period of more than three years prior to the institution of the R.C.P, which would necessarily point to the non-occupation of the said shop room by the tenant. There is absolutely no scope for interference in this revision, with the above findings of the Rent Control Court and the Appellate Authority in the matter of eviction of the petitioner-tenant from the petition schedule shop room, under Section 11(4)(v) of the Act. 9. When the order in this case was about to be pronounced, the learned counsel for the petitioner-tenant submitted that a period of six months’ time may be afforded to the petitioner to vacate the petition schedule shop room, since he has to make alternate arrangements for shifting the items kept there. The learned counsel 8 R.C.R No.217 of 2022 for the respondent-landlord opposed the above request of time for such a long period, stating the reason that for the past more than four years, the respondent-landlord has been behind this litigation for getting vacant possession of his shop room. Having heard the learned counsel for the petitioner and the learned counsel for the respondent on the above aspect, we deem it appropriate to grant a period of four months for the revision petitioner-tenant to vacate the petition schedule shop room if he is ready to abide by the terms and conditions incorporated hereunder. Accordingly, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, subject to the following conditions: - (i) The petitioner-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 he will surrender vacant possession of the petition schedule shop room to the respondent-landlord within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further 9 R.C.R No.217 of 2022 that he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (ii) The petitioner-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 petitioner-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 schedule shop room will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction. ## (sd/-) ## (sd/-) **G. GIRISH, JUDGE** jsr/vgd