P. D. Ousephachan and P. D. Paulose v. Southern Fisheries Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 ----------------------RCA.91/2007 of I ADDL. RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM RCP.64/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... ## REVISION PETITIONERS/APPELLANTS/RESPONDENTS/TENANTS: 1. P.D.OUSEPHACHAN, AGED 55, S/O.P.D.DEVASSY, PALATTY, TABOOR, MUKANNOOR, 2. P.D.PAULOSE, AGED 52, S/O.P.D.DEVASSY, PALATTY, KARAYAMPARAMBU, KARUKUTTY, ANGAMALLY. BY ADV. SRI.VARGHESE C.KURIAKOSE ## RESPONDENT(S): LANDLORD: M/S.SOUTHERN FISHERIES CORPN.,XL/5067, BANERJI ROAD, KOCHI-31,REP.BY DR.E.T.KURIAKOSE, MANAGING PARTNER,S/O.THOMMAN,75 YEARS, SOUTHERN FISHERIES CORPN.,XL/5067, BANERJI ROAD, KOCHI-31 ERNAKULAM VILLAGE, KANAYANNUR TALUK, R/AT NETHRA BHAVAN, KARAKKATT RD.,KARITHALA DESOM, EKM VILLAGE ADV. K.C.CHARLES(CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K. BASHEER & M.L. JOSEPH FRANCIS, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No. 10 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2010 ## **O R D E R** ## **Basheer, J.** Tenant of a commercial building, who has suffered an order of eviction under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), has preferred this Revision petition under Section 20 of the Act. 2. The petition for eviction was instituted by the respondent/landlord contending, inter alia, that the tenant had kept the rent in arrears, that he had used the building in such a way as to reduce its value and utility and that he had ceased to occupy the building since the last five years. 3. The claim for eviction was stoutly resisted by the tenant. It was contended by him that he had not ceased to 2 ## R.C.R. No. 10 of 2010 occupy the building nor had he reduced its value and utility. However, he admitted that he had taken the building on rent on a monthly rent of Rs.757/- Though the agreement between him and the landlord was styled as a licence deed, it was in fact treated as a lease arrangement. He had been conducting a fast food business in the premises. He further contended that he cannot be evicted from the building since the 'lease agreement' is for a specific period of 95 years. 4. One of the partners of the landlord-firm was examined as PW1. His witness was examined as PW2. Exts.A1 to A7 were marked on the side of the landlord. Tenant was examined as RW1 and Exts.B1 and B1(a) series were marked on his side. Exts.C1 and C1(a), commission report and sketch, were marked as Court exhibits. The Rent Control Court, after a careful evaluation of the oral and documentary evidence adduced by the 3 ## R.C.R. No. 10 of 2010 parties, held that the landlord was entitled to get an order of eviction on the ground of arrears of rent (S.11(2)(b)) and on the ground of cessation of occupation (S.11)(v)). However, the prayer for eviction under Section 11(4)(ii) was disallowed. 5. The above order was challenged by the tenant before the Rent Control Appellate Authority. Since it was conceded by the landlord before the Appellate Authority that he did not press for an order under Section 11(2)(b), as the tenant had discharged the entire arrears of rent, the Appellate Authority considered only the correctness of the finding entered by the Rent Control Court under Section 11(4)(v) of the Act. The Authority, after a re-evaluation of the entire materials available on record, concurred with the view taken by the Rent Control Court and dismissed the appeal, thus confirming the order of eviction under Section 11(4)(v) of the Act. The propriety, legality and 4 ## R.C.R. No. 10 of 2010 regularity of the above order is under challenge in this petition filed under Section 20 of the Act. 6. It is vehemently contended by Shri. Varghese Kuriakose, learned counsel for the petitioner, that the order of eviction passed by the authorities below, though concurrent, is ex facie illegal, irregular and unsustainable. He contends that the very inception of the petition is bad in the eye of law since it is hit by Section 11(9) of the Act. He further contends that appreciation of evidence by the authorities below is totally bad in as much as unreasonable conclusions have been arrived at by the authorities without any basis. 7. As regards the contention raised under Section 11(9) of the Act, it has to be noticed at once that such a contention is not seen to have been raised before the Appellate Authority. Though it is contended by Shri. Varghese before us that such a contention was in fact urged before the Appellate Authority, the 5 ## R.C.R. No. 10 of 2010 impugned order does not reveal that such a contention had been raised. It may be true that the Memorandum of Appeal contained such a contention. But unless and until such a contention was in fact raised before the Appellate Authority it cannot be said that the authority was in fault in not considering the above contention. 8. Significantly, the petitioner has not chosen to move the Appellate Authority with a review petition so far. In that view of the matter, we are totally satisfied that the Appellate Authority had not committed any error or irregularity in refusing to consider the above question. Nevertheless, we intend to deal with the question raised before us under Section 11(9) of the Act. 9. Section 11(9) postulates that where the tenancy is for a specified period agreed upon between the landlord and the 6 ## R.C.R. No. 10 of 2010 tenant, the landlord shall not be entitled to apply before the Rent Control Court before the expiry of such period. As has been noticed already, it is conceded by the petitioner/tenant that the arrangement between him and the landlord as regards occupation of the tenanted premises is understood to be a lease and not a licence, though the document was styled as a licence deed. 10. It is not disputed by the landlord that the document stipulates that the tenant was being put in possession for a period of 95 years, with certain conditions for enhancement of rent periodically. The contention which has now been raised by the tenant is that he cannot be evicted from the building until the expiry of 95 years. But as has been mentioned already, the tenant conceded before the Rent Control Court (and even now he has not changed that version) that he is a tenant of the building and not a licensee. However, the learned counsel R.C.R. No. 10 of 2010 7 contends that for the purpose of considering the interdiction contained in Section 11(9), the document executed between the parties would remain sacrosanct and therefore, going by the said document, the application filed for eviction could not have been entertained. 11. We are unable to agree with the above contention for reasons more than one. Obviously what Section 11(9) contemplates is tenancy covered under the Rent Control Act. But going by the argument now advanced by the learned counsel, he wants the petitioner to be treated as a licensee having a tenure of occupancy for 95 years for the purpose of taking advantage of the interdiction contained in Section 11(9). At the same time, he contends that he is a tenant coming under the purview of Act 2 of 1965 and is therefore entitled to get protection of Section 11(a). But according to the learned R.C.R. No. 10 of 2010 8 counsel, the petitioner is entitled to blow hot and cold so long as the interdiction contained in Section11(9) is heavily loaded in his favour. We are afraid the above contention is totally misconceived. In **Ahammed v. Krishnalal** (2005 (3) KLT 1004) a Division Bench of this Court has held that the interdiction contained in Section 11(a) applies only to an application for eviction under Section 11(3) and 11(8) of the Act. 12. But it is contended by the learned counsel for the petitioner that the above decision requires reconsideration. The question that came up before this Court in the above decision related to a document, which was admittedly a registered sale deed. The petition for eviction was filed under Section 11(4) (iii) of the Act. The Division Bench, after adverting to the case law on the point and particularly the facts available in that case, 9 ## R.C.R. No. 10 of 2010 held that the interdiction under Section 11(9) will be confined only to applications under Section 11(3) and 11(8) and it cannot be applied in cases where the tenant fails to pay rent or if he sub-lets the building or reduces its value or utility. Having carefully perused the judgment referred to above, we have no hesitation to hold that the contention now raised by the petitioner that the said decision requires reconsideration is without any merit. Therefore, the said prayer is repelled. 13. What remains is the question whether any interference is warranted with the concurrent finding entered by the authorities below. It is on record that the Advocate Commissioner appointed by the Rent Control Court had inspected the petition schedule building on three occasions, viz. on 7[th] and 8[th] of April, 2006 and also on May 22, 2006. The Advocate Commissioner in his report categorically stated that R.C.R. No. 10 of 2010 10 there were telltale marks of non-occupation in the entire premises. He noticed that the petition schedule premises, which was one of the four rooms on the ground floor facing the Banerji Road (which is one of the main arterial roads in the City), was fully covered with dust and mud. The shutter of the building showed that it had not been opened for a long period. The Commissioner had inspected the building during day time. 14. It was contended by the tenant that he used to open the building only during night for the purpose of his fast food business. According to him, he used to open his business at 4 p.m. and closed it by 12 in the night. But significantly the petitioner could not produce any document to show that he had been consuming electrical energy in the premises. On the contrary, Ext.A7 series duplicate bills produced by the landlord for the period from June, 2006 to April, 2007 clearly indicated 11 ## R.C.R. No. 10 of 2010 that there was hardly any consumption of electricity. Though the landlord had in fact moved the Rent Control Court for a direction to the tenant to produce the other electricity bills, the tenant had failed to produce any of such bills before the court. Though a vain attempt was made by the tenant to contend that he was constrained to close down the premises for a few days since he could not get sufficient quantity of chicken because of chicken fever, he had failed to substantiate the above contention either. In short, the petitioner/tenant had totally failed to prove that he had not ceased to occupy the building as alleged by the landlord. 15. In this context it may be noticed that what Section 11 (4)(v) of the Act postulates is that the tenant is liable to be evicted if he ceased to occupy the building continuously for six months without reasonable cause. Going by the scheme of the Act, especially the provisions referred to above, once the 12 ## R.C.R. No. 10 of 2010 landlord alleges cessation of occupation and produces some prima facie materials to show that the tenant had ceased to occupy the building continuously for six months without any cause, the onus shifts to the tenant. He has to establish that he had not ceased to occupy the building continuously for six months without reasonable cause. In fact while discharging that burden, it is also incumbent on the tenant to establish that he had in fact been in continuous occupation of the building, if he is to discharge the burden cast on him. 16. In the case on hand, there is ample evidence on record to show that the petitioner had ceased to occupy the building continuously for six months. More importantly, he had totally failed to prove that there was any reasonable cause for the nonoccupation. Though it was contended that closure was due to non-availability of chicken due to some disease, he had not succeeded in establishing the said contention. 13 ## R.C.R. No. 10 of 2010 17. We have carefully perused the entire materials available on record, including the report and sketch of the Commissioner, depositions of the parties etc. In our view the two authorities below have considered the entire aspects of the matter in the right perspective and come to the right conclusions. There is no illegality or irregularity in the concurrent finding entered by the authorities below. Therefore, in our view, no interference is warranted with the order under challenge in exercise of the revisional jurisdiction vested in this Court. 18. Lastly learned counsel for the petitioner has very persuasively prayed to show indulgence and give some time to the petitioner/tenant to vacate the premises. In the peculiar facts and circumstances of the case, we are satisfied that the petitioner/tenant can be granted three months' time to vacate the premises. The tenant shall file an undertaking in the form of an 14 ## R.C.R. No. 10 of 2010 affidavit before the Rent Control Court within seven days from today, undertaking to give vacant possession of the building to the respondent/landlord on or before April 15, 2010 without any demur or protest. He shall also remit the entire arrears of rent, if any, along with the affidavit before the Rent Control Court and continue to pay the future rent till the date of vacating the premises. 19. If the petitioner/tenant fails to file the undertaking and remit the arrears of rent, this revision petition will stand dismissed and it will be open to the landlord to execute the order of eviction forthwith. **==> picture [339 x 32] intentionally omitted <==** **==> picture [298 x 14] intentionally omitted <==** tm Judge 15 ## R.C.R. No. 10 of 2010 tm