Mahesh Babu s/o Chappan v. Kuttiyil Meethal Moidu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939 RCRev..No. 379 of 2016 () -------------------------RCP 86/2015 of THE RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 30-07-2016 RCP 7/2014 of THE RENT CONTROLLER/MUNSIFF COURT, VATAKARA DATED 28-02-2015 REVISION PETITIONER/RESPONDENT/RESPONDENT: ------------------------------------------------------------------------------- MAHESH BABU S/O. CHAPPAN, AGED 54 YEARS, BUSINESS, RESIDING AT MUKKALEENTAVIDA, VATAKARA AMSOM DESOM, KOZHIKODE DISTRICT, VATAKARA TALUK. BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENT/APPELLANT/PETITIONER: ----------------------------------- KUTTIYIL MEETHAL MOIDU S/O. MOOSSA, AGED 48 YEARS, BUSINEES, AT PERESENT RESIDING AT KUYYALIL HOUSE, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE - 673 104, BY OWNER OF ATTORNEY HOLDER P.K.MUHAMMAD ALI, AGED 53 YEARS, COOLIE RESIDING AT DEVAR KANDI HOUSE, MAKKOOL PEEDIKA, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.673104 BY ADV. SRI.U.K.DEVIDAS . BY ADV. SRI.K.K.ANILRAJ THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-102017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.379 of 2016 - - - - - - - - - - - - - - - - Dated : 9[th] October, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** **CR** Harilal, J. 1.The respondent filed R.C.P.7/2014 seeking an order of eviction under Section 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease & Rend Control) Act (for short, the Act) against the revision petitioner herein. Subsequently he has given up the claim under Section 11(4)(iii) and the Rent Control Court proceeded with the claim under Section 11(4)(v) only. The parties are referred to as in the Rent Control Petition. The Rent Control Court passed an order dismissing the Rent Control Petition on a finding that the petitioner failed to discharge initial burden of proof under Section 11(4)(v) of the Act. In appeal, the appellate authority revised the said finding and allowed the appeal on a finding that the petitioner had successfully proved the **RCR.379/2016** **==> picture [7 x 9] intentionally omitted <==** cessation of occupation for more than six months and thereby discharged his initial burden; but the respondent failed to rebut the evidence adduced by the petitioner. Thus the legality and propriety of the divergent findings under Section 11(4)(v) have come in revision. - 2.Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. - 3.The landlord-tenant relationship was not disputed. According to the petitioner, the tenanted premises was given to the respondent for conducting a textile business and he had been conducting the said business. But, subsequently he ceased to occupy the petition schedule building for more than one year and thereby he is entitled to get an order of eviction under Section 11(4)(v) of the Act. - 4.The respondent denied the pleadings that he ceased to occupy the petition schedule building **RCR.379/2016** **==> picture [7 x 9] intentionally omitted <==** for the last one year. Further he stated that he is depending on the income derived from the business conducting in the petition schedule building for his livelihood and the Rent Control Petition was filed in retaliation of his refusal to enhance rent as demanded by the petitioner. 5.Going by the impugned judgment it is seen that in order to discharge the initial burden of proof as regards the cessation of occupation for six months from the date of petition, the petitioner was examined as PW1 and the Commission report was marked as Ext.C1. Ext.C1 Commission report shows that on the date of filing of the Rent Control Petition itself, the Commissioner had inspected the petition schedule building and it is reported that at the time of inspection, the shop was found closed and while he was inspecting the shop, the respondent came to the spot and opened the door of the shop. It is also reported that dress materials were seen collected in big gunny bags and he could not enter into the shop. **RCR.379/2016** 4 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 Section 11(4)(v) of the Act. The Appellate Authority has relied on Liji Agencies v. Raghunath (2012 (1) KLT 665) wherein this Court held that occupation in the context of Section 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 **RCR.379/2016** 5 is supported by the decision of this Court in Mathai Antony v. Abraham (2004 (3) KLT 169), wherein it is held that the word 'occupy' in the context of Section 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 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 Section 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. - 7.Coming to the evidence of PW1, a Commission was taken to prove the cessation of occupation and the Commissioner has reported that when he reached the spot, the shop room was found closed. In the Commission report nothing was indicated about the conduct of the business at **RCR.379/2016** 6 the time of his inspection. However it is reported that the dress materials were found collected in gunny bags. Further the petitioner has filed an application seeking an order requiring the respondent to produce certain documents which may prove the conduct of the business in the petition schedule shop room. The respondent was required to produce licence of the shop, registration certificate under the Act, sales bills, purchase bills, professional tax receipts, sales tax return etc. But in the counter statement filed by the respondent, he has stated that he is in possession of those documents and those documents are kept in shop room as the same is required for his day-to-day purpose. Thereafter when the Rent Control Court directed the respondent to file affidavit stating the same, he filed an affidavit stating that, no such document was in his possession. Similarly when he was asked about the electric connection which would show payment of bills with respect to the petition schedule shop room, no document was produced to show the same. At **RCR.379/2016** **==> picture [7 x 9] intentionally omitted <==** the first instance, he deposed that at the time of taking the room, there was no electric connection. But subsequently he has deposed that electric connection has been dismantled. But Ext.A1 document would show that the respondent has took the room having electric connection. In short, nothing has been produced in evidence to show the conduct of the business in the petition schedule shop room. 8.On the other hand, the petitioner has succeeded in proving cessation of occupation of the petition schedule building. We are of the opinion that since the respondent is conducting a textile business, the non production of the documentary evidence which would prove the conduct of the business in the petition schedule building is fatal and there lacks bona fides of his claim that he has been conducting textile business in the petition schedule building. We find that the Rent Control Court has not applied its mind over the evidence available on record and without looking into the evidence, rendered **RCR.379/2016** 8 a judgment in cryptic as well as laconic way. Whereas, the Appellate Authority rightly understood the legal position under Section 11 (4)(v) and meticulously analyzed the evidence on record and arrived at a just and proper finding. There is no illegality or impropriety in any of the findings whereby the Appellate Authority reversed the findings of the Rent Control Court. The Revision petition stands dismissed accordingly. Sd/- **K.HARILAL Judge** **Sd/-** **A.M.BABU Judge** Mrcs/9.10 //True Copy// P.S.To Judge