KUNNATHOOER RAVEENDRAN vs P.P. AMJAD and P.P. NISHAD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** **RCRev..No.62 OF 2020** **AGAINST THE JUDGMENT IN RCA 43/2017 DATED 13-08-2019 OF ADDITIONAL DISTRICT COURT - II, THALASSERY** **AGAINST THE ORDER IN RCP 43/2015 DATED 20-09-2016 OF MUNSIF COURT, KUTHUPARAMBA** ## **REVISION PETITIONER/APPELLANT/RESPONDENT** **KUNNATHOOER RAVEENDRAN, AGED 65 YEARS S/O.KUNHAMBU, BUSINESS, KUNNATHOOR HOUSE, NERIPPOTTKARI P.O., EDAYANNUR, KEEZHALLUR AMSOM, EDAYANNUR DESOM, PIN - 670 595. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENTS/RESPONDENTS:** **1 P.P.AMJAD, S/O.HUSSAIN, AGED 32 YEARS, EMPLOYED IN GULF 'SITHARAS', KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR THROUGH P.A.HOLDER P.P.SAHEER, S/O.HUSSAIN, AGED 42 YEARS, SITHARAS KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR, PIN - 670 592. 2 P.P.NISHAD, S/O.HUSSAIN, AGED 34 YEARS, EMPLOYED IN GULF SITHARAS, KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR, THROUGH P.A.HOLDER, P.P.SAHEER, S/O.HUSSAIN, AGED 40 YEARS, SITHARAS, KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR, PIN - 670 592.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** ## **RCRev..No.62 OF 2020** ## **ORDER** ## **C.S.DIAS, J.** The revision petitioner was the appellant in RCA No.43/2017 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Thalassery. The respondents in this revision petition were the respondents in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Kuthuparamba, in RCP No.43/2015. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition (RCP) as 'petitioners' and 'respondent'. 3. The petitioners had filed the RCP against the respondent, inter alia, pleading as follows: The petitioners are the landlords of the petition **RCRev..No.62 OF 2020** **3** schedule shop room (for brevity, hereinafter referred to as 'shop room') which is one among the shop rooms in a multi storied commercial complex which was purchased by them on 25.7.2014. The shop room is situated on the extreme southern side on the ground floor. The respondent had taken the shop room from the erstwhile landlord by a rental agreement dated 2.2.2009, for conducting an Ayurveda Pharmacy, on a monthly rent of Rs.1000/-. There was a stipulation in the rental agreement that there would be annual enhancement of rent at the rate of fifteen percent. According to the petitioners, at the time acquisition of commercial complex, the respondent was liable to pay the petitioners rent for the shop room at the rate of Rs.1750/- per month. After February, 2015, the respondent was liable to pay Rs.1900/- as monthly rent. Despite issuing a demand notice to the respondent, to pay the arrears of rent, he has **RCRev..No.62 OF 2020** **4** failed to pay the same. The respondent is not conducting any trade or business in the shop room. He is engaged elsewhere for the past more than one year. Hence the respondent has ceased to occupy the shop room for a period of more than one year. The shop room is situated in Chalad town on the main road. There are several important offices in close proximity to the shop room. Due to inflation, the money value has diminished. Hence the petitioners are also entitled for fixation of fair rent at the rate of Rs.5000/- per month, from the date of petition till the date of surrender of the shop room. Therefore, the petitioners are entitled for an order of eviction under Sections.11 (2) (b) and 11 (4) (v) of the Act r/w read with Section 5 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 4. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading **RCRev..No.62 OF 2020** **5** as follows: The respondent admitted taking the shop room on lease from the erstwhile owner on a monthly rent of Rs.1000/-, to conduct an Ayurveda Pharmacy. He admitted that the petitioners had acquired the shop room and that he attorned to the lease. He admitted that there is arrears of rent from December, 2014. He has paid rent at the rate of Rs.1200/- which is the prevailing rate in the locality. He denied the allegation that he has ceased to occupy the shop room. He has not closed the shop room for more than a week at a stretch. The shop room has two shutters. Therefore, only one shutter is opened regularly. The respondent has paid Rs.50,000/- as advance, at the time of taking the shop room on rent, to the erstwhile landlord. He is entitled for adjustment of the advance amount. The RCP is devoid of any merits and is only liable to be dismissed. 5. The Rent Control Court jointly tried the **RCRev..No.62 OF 2020** ## **6** RCP along with RCP No.44/2015 which was also filed by the petitioners against another tenant. 6. The power of attorney holder of the petitioners was examined as PW1. Two other witnesses were also examined as PW2 and PW3 and Exts.A1 to A13 were marked on their side. The respondents in the two RCPs were examined as RW1 and RW2 and Exts.B1 to B6(a) were marked on their side. Exts. C1 to C4 reports and plans of the Advocate Commissioner were also marked. 7. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop room under Sec.11(4) (v) of the Act. The Rent Control Court fixed the fair rent of the shop room at the rate of Rs.2500/- per month from the date of petition. 8. Aggrieved by the impugned order passed by the Rent Control Court, the respondent **RCRev..No.62 OF 2020** **7** preferred RCA No.43/2017 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 13.08.2019 dismissed the appeal and confirmed the order of eviction under Section 11(4) (v) of the Act and the order fixing fair rent passed by the Rent Control Court. 9. It is challenging the judgment passed by the Appellate Authority in RCA No.43/2017 and the order passed by the Rent Control Court in RCP No.43/2015, that this Rent Control Revision is filed. 10. Heard Sri.K.V.Pavithran, the learned counsel for the revision petitioner. 11. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop room under Sec.11(4)(v) of the Act. According to him, the petitioners have not proved that the respondent has ceased to occupy the shop room as alleged in the RCP. The courts below have **RCRev..No.62 OF 2020** **8** given undue emphasis to the findings of the Advocate Commissioner in Exts.C1 to C4 reports and plans. As the shop room is situated on the road side, obviously there will be dust on the rolling shutters. The fair rent fixed by the courts below is excessive and exorbitant, and not in accordance with the law laid down by this Court in Edger Ferus v. Abraham Ittycheria [2004 (1) KLT 767] and in Rajesh R.Kartha v. K.A Ismail [2015 (4) KHC 408] **.** He hence prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 12. The question that emerges for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below in ordering eviction of the respondent under Sec.11 (4)(v) of the Act and fixing fair rent under Section 5 **RCRev..No.62 OF 2020** **9** of the Act. 13. It is trite law that, this Court while exercising its revisional jurisdiction under Sec.20 of the Act is not expected to re-appreciate the entire pleadings and evidence on record. This Court is only supposed to examine the legality of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings and evidence on record. 14. Ext.A4 is the rent agreement that was executed between the respondent and the erstwhile landowner wherein the rate of rent of the shop room was fixed at Rs.1000/- per month. In the subsequent rent deed, namely Ext.A5 executed between the petitioners and the respondent, the rate of rent was also fixed at Rs.1000/-. The courts below did not look into Ext.A5 because the same was an unregistered document. The petitioners examined PW2 and PW3 who are the adjacent **RCRev..No.62 OF 2020** ## **10** tenants, who proved Exts.A6 and A7 rent agreements. It was established that they are paying rent at the rate of Rs.5000/- per month for the shop rooms taken on lease by them. Therefore, it is substantiated that the prevalent rate of rent in the locality is Rs.5000/- per month. But the petitioners did not mount the box and adduce evidence to prove that the facilities in the petition schedule shop room and the shop rooms of PW2 and PW3 are more or less the same. It is considering these aspects that the Rent Control Court fixed the fair rent at the rate of Rs.2500/- per month following the principles in Edger Ferus and Rajesh R.Kartha (supra). The Appellate Authority has found the fixation of fair rent by the Rent Control Court to be reasonable and fair. Thus, we do not find any reason to interfere with the finding of fair rent fixed by the courts below in exercise of the revisional jurisdiction of this Court under **RCRev..No.62 OF 2020** **11** Section 20 of the Act. 15. Coming to the next question whether the respondent has ceased to occupy the shop room and consequently the petitioners are entitled to an order of eviction under Section 11 (4) (v) of the Act. 16. As per Ext.C1 report and Ext.C2 plan submitted by the Advocate Commissioner the shop rooms was lying closed. The respondent was not conducting any business in the shop room. The shutters of the shop room were found covered with dust and cob-webs . The lock of the shutter was seen rusted. Hence, the Advocate Commissioner prima facie opined that the respondent had ceased to occupy the shop room. 17. It is settled law that once the landlord prima facie proves that the tenant has ceased to occupy the shop room, the onus of proof shifts to the tenant to substantiate that he was in occupation of the shop room. **RCRev..No.62 OF 2020** ## **12** 18. In the case on hand, the respondent has not produced any document or records to substantiate that he had not ceased to occupy the shop room, and that he was continuing with the business in the shop room. The evidence of PW1 to PW3 substantiate that the respondent had ceased to occupy the shop room. The respondent has also not offered any reasonable explanation for ceasing to occupy the shop room for more than a period of six months. He ought to have produced his books of account and other documents to prove that he was running his business in the shop room, which he miserably failed. Thus, the courts below have rightly concluded that the respondent has ceased to occupy the shop room, and that the petitioners are entitled for an order of eviction under Section 11 (4) (v) of the Act. 19. In the totality of the facts and circumstances of the case, the pleadings and **RCRev..No.62 OF 2020** **13** evidence on record and after going through the order and judgment of the courts below, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly fixed the fair rent at the rate of Rs.2500/- per month under Section 5 of the Act, and also the courts below have rightly ordered the eviction of the respondent from the shop room under Section 11 (4) (v) of the Act. We confirm the concurrent findings of the Rent Control Court in RCP 43/2015 and the Appellate Authority in RCA No.43/2017 . 20. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop room. Taking into consideration the fact that the RCP was filed in the year 2015 and the Rent Control Appeal was filed in the year 2017, we feel that the revision petitioner has got more than sufficient time to vacate the building. However, in view of the plea **RCRev..No.62 OF 2020** ## **14** made by the counsel for the revision petitioner that the revision petitioner need time to vacate the shop room, we feel that a reasonable period of six months can be granted to the revision petitioner to shift his business. In the said circumstances, we grant the revision petitioner six months' time to vacate the shop room on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop rooms within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. **RCRev..No.62 OF 2020** **15** (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. In the result, this revision petition is accordingly dismissed. **Sd/-K.HARILAL JUDGE** **==> picture [393 x 78] intentionally omitted <==**