Mohammedkunhi and others v. Dr. P. Venugopalan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932** **RCRev..No. 4 of 2008(B )** **---------------------------RCA.18/2005 of DISTRICT COURT, KASARAGOD RCP.15/2004 of PRL.MUNSIFF, KASARAGOD** **....................** ## **REVISION PETITIONERS(APLNTS.& RSPDTS./PETITIONERS)** **----------------------------------------------------------------------** ## **1. MOHAMMEDKUNHI,** **S/O. LATE MOIDEENKUNHI HAJI, NEAR MUTTAM GATE, MANGALPADY VILLAGE, KASARAGOD TALUK,P.O.MANGALPADY** ## **2. ABDUL KAREEM,** - **S/O. LATE MOIDEENKUNHI HAJI, NEAR MUTTAM GATE, MANGALPADY VILLAGE, KASARAGOD TALUK,P.O.MANGALPADY** ## **3. MOHAMMED HANEEF,** **S/O. LATE MOIDEENKUNHI HAJI, NEAR MUTTAM GATE, MANGALPADY VILLAGE, KASARAGOD TALUK,P.O.MANGALPADY** **BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SRI.SACHIDANANDA PAI** ## **RESPONDENT(S):(RESPONDENT & APPELLANT/RESPONDENT IN RCP):** **---------------------------------------------------------------------------** **DR. P.VENUGOPALAN NAIR, S/O. UKKARAN NAIR, USHA CLINIC AND PHARMACY, BADIADKA ROAD, KOIPADY VILLAGE, KSARAGOD TALUK, P.O. KUMBALA.** **BY ADV. SRI.SURESH KUMAR KODOTH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs/** **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------R.C.R.No. 4 OF 2008 ----------------------------Dated this the day 3[rd] day of November, 2010** ## **O R D E R ~~~~~~~** ## **P.S.Gopinathan, J.** The landlord petitioner in RCP No. 15/2004 on the file of the Rent Control Court, Kasaragod, is the revision petitioner. He instituted the above petition before the Rent Controller against the respondent seeking an order of eviction under Section 11(2)(b), 11(4)(ii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the 'Act'. The Rent Controller after due enquiry allowed the petition under Section 11(4)(v). Prayer for eviction sought under Section 11(4)(ii) and 11(2)(b) was declined. Assailing the order declining eviction under Section 11(2)(b) and 11(4)(ii) revision petitioner preferred appeal as RCR 18/2005. Assailing the order of eviction granted under Section 11(4)(v) the tenant/respondent preferred RCR 20/2005. The Appellate Authority heard both appeals and by a common judgment dated 3.7.2007 dismissed RCA 18/2005 and allowed RCA 20/2005, R.C.R.No.4/2008 2 whereby the order of eviction granted under Section 11(4)(v) was set aside. Assailing the legality, correctness and propriety of the above common judgment, this revision petition was preferred. 2. Today, when the revision petition came up for hearing Sri.Sachidananda Pai, the learned counsel appearing for the revision petitioner, submitted that the revision petitioner is pursuing the order of eviction sought under section 11(4)(v) only and that the eviction sought under 11(2)(b) and 11(4)(ii) is not pursued. The submission made by the learned counsel is recorded. 3. In the petition before the Rent Controller which was filed on 25.9.2004, it was contented by the revision petitioner that the respondent obtained the petition schedule building bearing No.X/1197 on lease for residential purpose and ceased to occupy the petition schedule building for more than one year as on the date of the petition. Before launching the petition, the revision petitioner caused Ext.A1 notice, wherein also the cessation of occupation was specifically alleged. To Ext.A1, R.C.R.No.4/2008 3 Ext.A2 reply was caused by the respondent denying the allegation that the respondent ceased to occupy the petition schedule building. Before the Rent Controller the respondent reiterated the same contention as stated in Ext.A2 reply notice. 4. We heard Sri.Sachidananda Pai and Sri. Suresh Kurmar Kodoth, learned counsel appearing for the parties and perused the judgment impugned as well as the order of the Rent Controller. We were also taken through the evidence and Exts.C1 and C2 report by the learned counsel appearing for the revision petitioner. The Rent Controller, in granting an order of eviction gave reliance to the evidence of the revision petitioner as PW1 corroborated by Exts.C1 and C2 reports. After the appearance of the respondent before the trial court, the revision petitioner applied for issuing a Commission and the Commissioner first time inspected the property on 4.11.2004 with due notice to the respondent. In Ext.C1, it is reported by the Commissioner that the petition schedule building was dusty and covered with cobwebs. It is further reported that there was no furniture or any other article indicating occupation by the respondent. The contention of the respondent is that he has 4 R.C.R.No.4/2008 been running a homoeo clinic by name Usha Clinic. Ext.C1 report would show that the Commissioner couldn't see any material to conclude that the respondent was running a homoeo clinic there. Though the respondent had got a case that he was residing in the petition schedule building after the lease transaction, it is admitted by him in cross examination that he had shifted residence to Kumbla in a building owned by one Damodaran Nair. So, admittedly, the respondent is not residing in the petition schedule building which was taken on lease for residence. 5. Assailing Ext.C1 report, the respondent applied for setting aside Ext.C1 and deputing same Commissioner for a further report. By allowing the petition in part, without setting aside Ext.C1, the Commissioner was again deputed to inspect the petition schedule building and to file a further report. In pursuance to the 2[nd] inspection, Ext.C2 report was filed. At the time when the Commissioner inspected the petition schedule building on the second time, she noticed an executive chair and three ordinary chairs. There was one telephone also. Commissioner didn't notice any other article. Whether there was 5 R.C.R.No.4/2008 live telephone connection or not is not mentioned in the report. However, by Ext.C2 report, it is evident that the chairs and the telephone connection are plantings subsequent the first inspection of the petition schedule building. It is crucial to note that there was no consulting table, stethoscope, medicine or even a glass of water in the petition schedule building to indicate that the petition schedule building was used as a homoeo clinic. It is basing upon Exts.C1 and C2 report and giving reliance to the evidence of PW1, the Rent Controller allowed the prayer for eviction under Section11(4)(v). 6. Going by the impugned judgment, we find that in fact the appellate authority had not given any good reason to disbelieve PW1 or to reject Exts.C1 and C2 report. On the other hand, giving reliance to Exts.B2 to B8, the appellate authority arrived at a finding that the respondent had been paying electricity charges as well as telephone bills. It was also found that the respondent had obtained registration from the local authority. On the basis of those documents, the appellate authority arrived at a conclusion that those documents are sufficient enough to come to a conclusion that the respondent R.C.R.No.4/2008 6 had been occupying the petition schedule building. We find that even if the respondent had got licence for the clinic in respect of the petition schedule building or that he had been paying electricity bills or telephone bills that is not at all a reason to come to a conclusion that the respondent had been actually occupying or running homoeo clinic in the petition schedule building. Since the respondent himself had admitted that at the time when the petition schedule building was taken on rent he had been residing there and subsequently he shifted the residence, the question then arises is whether he had been conducting clinic there or not. To come to a conclusion that the respondent had been running a clinic neither the telephone bills nor electricity bills nor the registration certificate is sufficient. Though the respondent had examined RW2 who had deposed that he was a a patient of the respondent and he had taken treatment at the petition schedule building, that evidence was not given reliance by the Rent Controller. In the light of the report of the Commissioner, which we discussed earlier, the Rent Controller is justified in disbelieving RW2. 7 R.C.R.No.4/2008 7. We have also gone though the evidence of the respondent as RW1. In his evidence there is no good explanation as to how the building was found dusty and cobwebbed by the Commissioner. In fact, in the evidence of respondent as RW1 there is no much challenge against the report submitted by the Commissioner. The evidence on record being of the above nature, we find that the appellate authority had miserably gone wrong in giving reliance to Exts.B2 to B8 to arrive at a conclusion that the respondent had been occupying the petition schedule building. It is not disputed that the Authorities concerned are not making any local inspection while issuing telephone bill or electricity bill or renewing licence. Actual occupation is not a condition precedent for issuing electricity or phone bills or renewing licence. So, such documents are not sufficient to arrive at a conclusion regarding actual occupation. Actual occupation is independent of those documents. Sometimes, in the absence of other reliable evidence, those documents may be corroborating documents regarding possession. But those documents may not operate against the ground reality. Those documents are not sufficient enough to impeach the evidence of PW1 supported by the Commission 8 R.C.R.No.4/2008 Report. The Appellate Authority overlooked the above legal aspects and gave undue reliability to Exts.B2 to B8. It is very pertinent to note that the appellate court had not at all given any reasoning to disbelieve the evidence of PW1 supported by Exts.C1 and C2 report. On the other hand, the appellate court had read the decision in **Mathu v. Sahmsuddin** [2002 (2) KLT 101(SN)] and **Abbas v. Shankaran Namboodiri** [1993(1) KLT 76] and arrived a finding that the landlord had not succeeded to establish that the tenant ceased to occupy the building. In the light of the evidence of PW1 corroborated by Exts.C1 and C2, we find that the finding of the appellate authority is against the ground realities revealed by the evidence. The appellate authority without any justification ignored the evidence of PW1 corroborated by Exts.C1 and C2. The appellate authority also thoroughly went wrong in arriving at a conclusion that there is occupation by the respondent in giving reliance to the electricity bills, telephone bills etc. We find that the above conclusion of the appellate authority is perverse and contrary to the ground realities revealed by the evidence adduced by PW1 corroborated by Exts.C1 and C2. The appellate authority also omitted to note that the respondent had not at all given any reason to reject the R.C.R.No.4/2008 9 report of the Commissioner or the evidence of PW1. The Appellate Authority had miserably erred in finding that payment of electricity charges, telephone charges or holding licence wouldn't amount to occupation to defeat the prayer for eviction under Section 11(4)(v). Perhaps, payment of electricity charges, telephone bills etc. may amount to symbolic occupation. That may not amount to defeat the claim for evidence under Section 11(4)(v). The occupation must be physical occupation. That means, if it is let out for residence, the tenant must be residing there. If let out for running clinic, clinic must be run. Here the respondent is neither residing nor running clinic. Therefore, it couldn't be said that the respondent is occupying the petition schedule building. The finding of the Rent Controller is absolutely correct. The respondent hadn't shown any cause at all for not occupying the petition schedule building. The respondent had not also adduced any evidence to show that cessation of occupation is for any period shorter than six months. So the case of the revision petitioner that the respondent ceased to occupy the building for more than six months is to be accepted as found by the trial court. It was correctly found by the trial court. We find that the revision petitioner had R.C.R.No.4/2008 10 succeeded in establishing that the respondent ceased to occupy the petition schedule building for more than six months as laid down by this Court in the rulings cited. The Appellate Authority was not justified in reversing the order of eviction under Section 11(4)(v). Therefore, the order of eviction granted by the Rent Controller is liable to be restored in exercise of the revisional powers. In the result, the revision petition is allowed in part while setting aside the impugned judgment in part, the order of eviction granted by the Rent Controller under Section 11(4)(v) is restored. The order declining eviction under section 11(2)(b) and 11(4)(ii) would stand confirmed. There will be no order as to costs. However, the respondent is given one months time to vacate the premises. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(P.S.GOPINATHAN, JUDGE)** ## **ps**