N.P. Sabeer v. Puthiyapurayil SabreenA

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940** ## **RCRev.No. 239 of 2018** **AGAINST THE JUDGMENT DATED 20.12.2017 IN RCA 181/2016 of 2ND ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE** **AGAINST THE ORDER DATED 29.03.2016 IN RCP 160/2014 of RENT CONTROL COURT (ADDITIONAL MUNSIFF-I), KOZHIKODE** ## **REVISION PETITIONER/ RESPONDENT/ RESPONDENT :** **N.P.SABEER, S/O HAMSAKOYA, AGED 31 YEARS, CHERIKKAL HOUSE, NEAR ID HOSPITAL, NADAKKAVU.P.O, KOZHIKODE - 673 011.** ## **BY ADV. SRI.K.MOHANAKANNAN** ## **RESPONDENT/ APPELLANT/ PETITIONER :** **PUTHIYAPURAYIL SABREENA, AGED 56 YEARS, D/O.USMAN, 3/1436, E1 "NIMHA", GANDHI ROAD,C ALICUT-11, KASABA AMSOM & DESOM, KOZHIKODE TALUK - 673 011.** ## **BY ADV. SRI.JACOB ABRAHAM** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.No. 239 of 2018** 2 ## **ORDER** ## Annie John, J. The petitioner is the respondent/ tenant in RCP.No.160/2014 on the file of the Rent Control (Additional Munsiff-I), Court, Kozhikode and the respondent is the petitioner/ landlord in RCP. The Rent Control Petition was filed claiming eviction under Section 11(2)(b) and 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act). According to the respondent, the petition schedule building belongs to the petitioner and it was leased out to the respondent for rent of Rs.900/per month. The rent was enhanced @Rs.1035/- per month. The petition schedule room has been kept closed for more than one year without reasonable cause. The revision petitioner is not doing any business **RCRev.No. 239 of 2018** 3 therein. 2. The revision petitioner filed a counter statement contending that when he was attempting to pay the rent at the rate of Rs.1,035/- in March, 2014 and subsequent months, the landlord has refused to accept the same. Even after getting the statutory notice, he tendered the amount. But the landlord refused to accept the same. 3. On the side of the landlord PW1 was examined and Exts.A1 and A2 were marked. On the side of the revision petitioner, RW1 was examined and Exts.B1 to B4 were marked. Ext.C1 was the Advocate Commissioner and his report was marked as Exts.C1 and C1(a). 4. After evaluating the entire evidence, the Rent Control Court has allowed the petition under Section 11(2)(b) and declined under Section 11(4)(v) **RCRev.No. 239 of 2018** 4 of the Act. Highly aggrieved by the same, the respondent/ landlord has preferred RCA.No.181/2016 before the Rent Control Appellate Authority. But the Appellate Authority has found that there is cessation of occupation by the revision petitioner therein. Accordingly, eviction has been ordered under Section 11(4)(v) of the Act. 5. The revision petitioner deposited the arrears of rent and as per the order in IA.No.2114/2016 in RCP.No.160/2014 under Section 11(2)(c) of the Act and accordingly IA was allowed and the order under Section 11(2)(b) was set aside by order dated 01.10.2016. At present, the order under challenge is only under Section 11(4)(v) of the Act. Highly aggrieved by the said order, the revision petitioner has approached this Court. 6. According to the revision petitioner the finding entered by the Rent Control Appellate Authority **RCRev.No. 239 of 2018** 5 is incorrect. In the evidence of PW1, he has admitted that construction of RW1's house was going on at the time of visit of the Commissioner. So, he happened to be absent at that time. The Commissioner has reported that there was cessation of occupation, but it is incorrect. Actually he was doing the business in the building. Mere his absence is not a ground to invoke under Section 11(4)(v) of the Act. 7. Mainly the Rent Control Petition has been filed under Section 11(2)(b)and 11(4)(v) of the Act. So, at present, there is no order of eviction under Section 11(2)(b) of the Act. But the Rent Control Appellate Authority ordered eviction under Section 11(4)(v) of the Act. In the evidence, PW1 has clearly stated that the petition schedule shop room was seen closed for the last one year without doing any business therein and that is too without any “sufficient cause”. So, it is obvious that there are perfect pleadings to **RCRev.No. 239 of 2018** 6 attract the ingredients as contemplated under Section 11(4)(v) of the Act. He has pointed out that in Ext.A1 notice, the landlady has stated that the petition schedule room has kept closed for atleast six months. 8. As per Section 11(4)(v) of the Act, the “cessation of occupation” of more than six months “without sufficient cause” is necessary to be proved by the respondent/ landlord. The Rent Control Appellate Authority has found that the inconsistency in the notice or the pleadings does not have any significance as far as the reliability and trustworthy of the contention of the landlord. PW1 has also stated in the proof affidavit that the revision petitioner has “ceased to occupy” the petition schedule building for more than one year “without any reasonable cause”. 9. The counsel for the landlady has pointed out that on Ext.A2 unserved envelope address to the revision petitioner is of his shop address. PW1 would **RCRev.No. 239 of 2018** 7 depose that notice was despatched to the revision petitioner through his residential address as well as shop address. The notice which was sent to the residential address of the revision petitioner was accepted by him. But the notice despatched to his shop address was returned with an endorsement “shutter locked intimation dropped first day”. Subsequently on the second time also, the postal authority endorsed that “shutter locked intimation dropped 2[nd] day”. That was on 27.05.2014 and 28.05.2014 respectively. So, the endorsement which was made on the notice would prove that the revision petitioner was not opening the shop room. The endorsement of the postal authority leads to an inference that the revision petitioner has not opened the shutter as rightly argued by the counsel for the respondent. ## 10. The respondent/ landlady has also taken a **RCRev.No. 239 of 2018** 8 commission to ascertain whether the petition schedule shop room is functioning or not. The Advocate Commissioner has gone to the shop on two occasions. On these occasions, the building was found to be locked. Ext.C1 report would show that the Commissioner has gone to the shop on 30.06.2014 at about 4.30 p.m. At that time, the petition schedule shop room was found closed and a tin sheet table was seen collected and kept in front of the rented premises as upward condition and some iron pieces and wooden pieces were seen heaped in front of the rented premises. The Commissioner further reported that there were two holders without bulb, but there is a tube light as well. The learned counsel for the respondent has argued that if the rented premises was occupied by the revision petitioner for conducting hardware business, the front part of the shop room would not have looked like this. On 07.07.2014 at **RCRev.No. 239 of 2018** 9 11.00 a.m., the Commissioner has again inspected the rented premises. But, the shop was found closed. The Commissioner attempted to serve notice of inspection by visiting the house of the revision petitioner. But he was not available there. It was reported by the Commissioner that the brother of the revision petitioner has stated that due to illness of the revision petitioner, the shop was closed. It is peculiar to note that when the Commissioner has gone to the shop, the petition schedule shop room was found closed. The Commissioner reported that the business was not being conducted actively in the petition schedule shop room. Further, the Commissioner would not able to enter into the petition schedule shop room and to note the present stage inside the shop room. Of course, it is true that the burden is heavy on the respondent/ landlady to prove that the revision petitioner has ceased to occupy the rented premises for more than **RCRev.No. 239 of 2018** 10 six months without any cause. 11. It has held in _**Liji Agencies v. Raghunath and Others [2012(1) KHC 604]**_ that cessation of occupation and subletting - Held, if there is allegation and proof that the entire building has been sublet or transferred and that the tenant has not occupied even a portion of the tenanted premises for a continuous period of more than six months prior to the commencement of the proceedings, then, landlord will be entitled for eviction on the grounds of subletting/ transfer and cessation of occupation. 12. In order to establish the cessation of occupation, the burden is heavy on the landlord to prove that the revision petitioner/ tenant has “ceased to occupy” the petition schedule building “without any reasonable cause” and it has also to be proved that the revision petitioner/ tenant has become defunct and he has not occupied the building during the statutory **RCRev.No. 239 of 2018** 11 period of six months and more. It is very important to analyse the fact that the revision petitioner/ tenant has ceased to occupy the building for more than six months. In cessation of occupation, 'occupation' means physical occupation - When it pertains to a residential building, occupation means occupation through residence; and when it pertains to a commercial building it means occupation by conduct of business. 13. As far as factum of this revision is concerned, this Court has to look into the correctness of the eviction order passed under Section 11(4)(v) of the Act by the Rent Control Appellate Authority. The main argument of the learned counsel for the appellant was that the revision petitioner/ tenant was occupying the petition schedule building and there was no interruption during this period. Therefore, the respondent/ landlord is not entitled to get any relief as prayed for. The factual situation as emerged from the **RCRev.No. 239 of 2018** 12 evidence on record in this case is that the revision petitioner/ tenant is actually conducting the activities going on at the building. But, no evidence was forthcoming to establish that the revision petitioner/ tenant was holding the petition schedule building and doing the business therein. The definite case of the respondent/landlord was that when the Commissioner has inspected the rented premises, it was practically found closed. The Commissioner has attempted to serve notice of inspection inside the house of the revision petitioner. But, he was not available there. According to the Commission report, as reported by the brother of the revision petitioner, he was suffering from some illness and only that purpose, the shop was closed. 14. The word “occupy” occurring in Section 11(4)(v) of the Act has got different meaning in different context. The meaning of the word “occupy” in **RCRev.No. 239 of 2018** 13 the context of Section 11(4)(v) has to be understood in the light of the object and purpose of the Act in mind. It is true that the rent control legislation is intended to give protection to the tenant. So, there will not be any interference with the user of the tenanted premises during the currency of the tenancy. So, this provision was enacted so that the landlord cannot disturb the peaceful possession and enjoyment of tenanted premises. The word “occupy” in certain context implicates mere physical presence, but in other context, actual enjoyment. In fact, the word “occupy” indicates legal possession of the building, but other time mere physical presence. The Commissioner inspected the site and reported that the revision petitioner was not there in the shop room. It is true that his physical presence was not there. But the revision petitioner has to satisfy the court that he was not only in physical possession but also legally in **RCRev.No. 239 of 2018** 14 possession of the petition schedule building. So, the word “occupy” gives a meaning to the effect that the revision petitioner/ tenant is actually using the premises and not mere physical presence or possession. 15. In _**Dunlop India Ltd. v. A.A. Rahna and Anr. Dunlop India Limited v. A.A. Sulaiman and Anr. [AIR 2011 SC 2198]**_ wherein it has held that in order to seek eviction of tenant, on the ground that the tenant ceased to occupy the premises continuously for six months. The word “occupy” in Section 11(4)(v) of the Act is not synonymous with legal possession, but means actual possession. Legal possession of building by tenant will be sufficient for refusing order of eviction only if tenant proves that there was reasonable cause for his having ceased to occupy the building. Further it has held that the word “occupy” used in Section 11(4)(v) of the Act is to be **RCRev.No. 239 of 2018** 15 construed as the actual occupation of the building. If the building is let out for residential purpose and the tenant is shown to be continuously absent for six months, the Court shall presume that he has ceased to occupy the building or abandoned it and further, 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. The provision clearly states that the tenant did not occupy the building for a continuous period of six months due to reasonable cause. So, when the landlord establishes his case that the tenant ceased to occupy the building “for more than six months, without any reasonable cause”, then the burden shift to the tenant to establish that the tenant has ceased to occupy the building “due to some reasonable cause”. ## 16. It has held in _**Paulina Joseph v. Idukki**_ **RCRev.No. 239 of 2018** 16 ## _**District Wholesale Co operative Consumer Stores**_ _**Ltd. [2006 (1) KLT 603]**_ by the Division Bench of this Court discussed the meaning of the word “reasonable cause”. The question whether the tenant ceases to occupy the building continuously for six months is primarily a question of fact to be determined with reference to the facts available in each case. 17. The scope of “occupation of the building” depends on the purpose for which the building is let and the purpose for which it is used. The nature of the business and the requirement of the physical presence or otherwise of the tenant in the building for the conduct of the business is a relevant fact. No straight jacket formula can be evolved in the matter of proof of cessation of occupation within the meaning of S.11(4) (v) of the Act. This intention of the tenant, though not conclusive as such has also relevance in determining whether there was actual cessation of occupation **RCRev.No. 239 of 2018** 17 within the meaning of S.11(4)(v). When it is proved by the landlord that the tenant ceased to occupy the building continuously for six months, the burden of proving that there was “reasonable cause for such cessation” is on the tenant. Reasonable cause is also a question of fact to be decided in the light of the facts proved in the case. No rigid formula can be evolved for proof of “reasonable cause”. The facts and circumstances of the case, the particular facts with reference to the business activities of the tenant, the nature of the business, the magnitude of the business, the circumstance which led to the cessation of occupation are all relevant in considering whether there was “reasonable cause”. If the cessation of occupation was due to circumstances beyond the control of the tenant, certainly the Courts would be inclined to accept the case of the tenant that cessation of occupation was not without reasonable cause. Financial constraint of **RCRev.No. 239 of 2018** 18 the tenant by itself may not be a sufficient reason to hold that there was reasonable cause. 18. It has held in _**Sasidharan v. Kadeesumma [2010 (3) KLT 50]**_ that the reasonable 'cause' contemplated under S.11(4)(v) should be a cause which is not within control of tenant and should prevent him from putting the tenanted premises to regular use and occupation. It has also held that when it comes to the case of commercial space it should be a cause which prevents the tenant from continuing with the business activity which could not be rectified by the tenant within his control of affairs. In order to get the benefit of “reasonable cause” enumerated in S.11(4)(v), the tenant is expected to concede that there was cessation of occupation and that such cessation was due to some reasonable cause, which was beyond his control. In a case where there is stout denial of the allegations **RCRev.No. 239 of 2018** 19 regarding cessation, the tenant is not justified in banking upon any “reasonable cause” which was neither pleaded nor proved to contend that the cessation was justifiable. 19. It has held in _**Mukreerakath Khadeeja and Others v. Krishna Janaki [2011(3)KHC 753]**_ that the tenant contending that the room is used as a godown for conducting business in the adjacent building and rent was being paid regularly - Held, since tenant failed to produce any document to show that the items sold from the adjacent building were stocked in the petition schedule building, coupled with the evidence of the Commissioner that the building was not being used, it is sufficient reason for eviction under S.11(4)(v). 20. In paragraph 9 of the ruling in _**2011(3)KHC 753**_ (cited supra) it has held that in a case filed under S.11(4)(v), the best mode of proof of **RCRev.No. 239 of 2018** 20 cessation of occupation is to conduct surprise inspection of the petition schedule building by the commissioner. The salient features noted by the Advocate Commissioner would be of much help to the court to come to a conclusion as to whether the plea of cessation of occupation put forward by the landlady is true. The effect of that report cannot be nullified by adopting a stultifying strategy of getting a report after several months. 21. In this particular case, the Commissioner's report was taken immediately after filing of the petition and he visited tenanted premises. It was found that the building was completely closed and there were evidence to establish that it was closed for more than six months. He has narrated how the building was kept there. It was also found that there were debris collected in front of the shop room. It evidenced to the effect that it was not opened for more **RCRev.No. 239 of 2018** 21 than six months. 22. On the other hand, the contention raised by the revision petitioner that he is doing some business in the petition schedule shop room. But he could not procure any of the documents related to the business, which is being conducted in the petition schedule business. There is absolutely no evidence to the effect that due to “unavoidable circumstances” and due to “reasonable cause” he was abstained from occupying the building and the petitioner failed to establish that he did not occupy the building due to some “reasonable cause”. 23. In view of evidence of PW1 as well as the production of Exts.A2 and C1 Commission report, the landlady has discharged her initial burden that the revision petitioner has ceased to occupy the rented premises for more than six months. In fact, the revision petitioner has not produced any documentary **RCRev.No. 239 of 2018** 22 evidence to prove that he is doing business in the petition schedule shop room. Even after acceptance of notice from the Commissioner, the revision petitioner has not taken any steps to open the petition schedule shop room for the inspection of the Commissioner. In fact, the revision petitioner has not produced his purchase bills, sales bills, account books or any other documents connecting to the case. He has produced Ext.P4 electricity bill, which will not be sufficient to prove that he is running the petition schedule shop room. It is well settled law that “mere legal possession” does not amount to “occupation” of the rented premises. If the tenant closed the rented premises for more than six months without doing any business therein, that is too without any sufficient cause, the intention of the legislature's behind Section 11(4)(v) of the Act has to be established. In fact, the revision petitioner has not given any evidence or **RCRev.No. 239 of 2018** 23 explanation for closing down the petition schedule shop room during the visits of the Commissioner. 24. According to the revision petitioner, he has gone to consult doctor since he was suffering with fever and headache at the time of 2[nd] inspection of the Commissioner. But, no document was produced by the revision petitioner to establish this fact. The revision petitioner failed to establish that he has temporarily closed the petition schedule shop room at the time of the Commissioner's visit. On evaluation of evidence and arguments on either sides, we find that the respondent/ landlady has discharged her burden to prove the ingredients as contemplated under Section 11(4)(v) of the Act and we have a considered view that the revision is without any merit. In fact, the revision petitioner has attempted to point out that the order of the Rent Control Appellate Authority is irregular, illegal or perverse. We do not **RCRev.No. 239 of 2018** 24 find any ground to interfere with the order of the Rent Control Appellate Authority since it lacks evidence to establish legality, impropriety and perversity. Therefore, the revision is only to be dismissed. The learned counsel for the revision petitioner/ tenant prayed for sometime to vacate the tenanted premises. The learned counsel for the respondent/ landlord submitted that reasonable time can be granted for the same. Having regard to the submission at Bar, the revision petitioner/ tenant is given six months' time from today to vacate the tenanted premises 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 room within six months from today. **RCRev.No. 239 of 2018** 25 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. 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 respondent/ landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** RKM