P.S. Jose v. Kavile Valappil Mohanan (RCRev. No. 168 of 2012)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 24TH DAY OF MAY 2012/3RD JYAISHTA 1934 RCRev..No. 168 of 2012 ---------------------------RCA.50/2007 of ADDL.D.C.,THALASSERY RCP.36/2005 of MUNSIFF COURT, PAYYANNUR ---------- REV.PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------- P.S.JOSE S/O.PALLITHARA VEETTIL STEPHEN, AGED 48 YEARS PALLITHARA JEWELLERS, MAIN ROAD, PAYYANNUR. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- KAVILE VALAPPIL MOHANAN S/O.LATE K.KUNHIRAMAN, AGED 45 YEARS KOOVAPPURAM P.O., CHERUKUNNU, CHERUKUNNU AMSOM DESOM KANNUR. PIN - 670 307. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24-05-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------R. C. R No.168 of 2012 -----------------------------------------------Dated this the 24[th] day of May, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant is the revision petitioner and he challenges in this revision the order of eviction passed against him concurrently by the Rent Control Court and the Appellate Authority on the ground of cessation of occupation. The defence of the revision petitioner to the allegation of the landlord that the tenant has ceased to occupy the building and he is not conducting any activity in the petition schedule building and much less the activity of jewellery work to conduct which the building was leased out to him was one of the total denial. The evidence consisted of Ext.C1 report submitted by the Commissioner on the basis of a local inspection which was completed by the Commissioner in two days apart from Exts.A1 to A3(c), B1 to B3 and the oral R. C. R No.168 of 2012 -2- evidence of PW1 the power of attorney holder of the landlord and the evidence of RW1, the tenant. The Advocate Commissioner who submitted Ext.C1 report was examined as CW1. The learned Rent Control Court on evaluating the evidence held that the eviction ground of cessation of occupation under Section 11(4)(v) was established in the case and accordingly ordered eviction. The Appellate Authority on considering the appeal preferred by the revision petitioner made a re-appraisal of the evidence and concurred with the findings of the Rent Control Court. Accordingly the appeal was dismissed. 2. In this revision filed under Section 20 the revision petitioner has raised grounds challenging the findings entered by the Rent Control Court and the Appellate Authority. Sri.M.V.Amaresan, the learned counsel for the revision petitioner addressed elaborate submissions before us based on grounds. Drawing our attention to the judgment of the Supreme Court in Man Kaur v. Hartar Singh Sangha R. C. R No.168 of 2012 -3- (2010(4) KLT SN 33) Sri.Amaresan submitted that the oral evidence given by PW1, the power of attorney holder for the landlord cannot have any probative value in this case as there was no case in the Rent Control Petition nor for PW1 that the landlord who filed the Rent Control Petition himself is not aware of the factum of cessation of occupation of the building by the tenant. Under such circumstances, the landlord alone was competent to adduce evidence to substantiate the allegations in the Rent Control Petition. Sri.Amaresan then submitted that on a reading of Ext.C1 report it will be seen that the Commissioner has not identified the subject building properly. It was some other building which was inspected by the Advocate Commissioner. It is relying solely on Ext.C1 that the learned Rent Control Court entered a finding that the tenant has ceased to occupy the building continuously for more than six months. The learned counsel submitted that the application submitted by the tenant for remitting the report back to the R. C. R No.168 of 2012 -4- Commissioner for a fresh inspection was dismissed by the learned Rent Control Court. The above order despite challenge before the Appellate Authority was sustained by the Appellate Authority. This has resulted in serious prejudice to the revision petitioner. The blame placed by the Rent Control Appellate Authority and the Rent Control Court on the tenant for not producing evidence is not justified as the activity conducted by the tenant in the petition schedule building is not capable of being proved by documentary evidence, so submitted Sri.Amaresan. 3. We have given our anxious consideration to the submissions addressed by Sri.Amaresan. We have carefully gone trough the order passed by the Rent Control Court and the judgment of the Appellate Authority. We have also gone through the Commissioner's Report, memorandum of revision and copies of the testimonies of PW1 and RW1 which were supplied to us by Sri.Ameresan. We are not impressed by the argument of Sri.Amaresan that the oral R. C. R No.168 of 2012 -5- evidence given by PW1 cannot have any probative value in this case and that it was only the landlord who was capable of giving evidence as to the truth of the allegations in the Rent Control Petition. What has been laid down by the Supreme Court in Man Kaur's case (cited supra) is inter alia that the power of attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which the principal alone has personal knowledge; and that where the principal at no point of time has personally handled or dealt with or participated in the transaction or has no personal knowledge of the transaction and only the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. As noticed earlier the matter in issue in the present case was whether the eviction ground invoked by the landlord stood established. The ground invoked was the ground of cessation of occupation by the R. C. R No.168 of 2012 -6- tenant without reasonable cause. Unlike grounds under Section 11(3), 11(8), 11(4)(iv) and other grounds where the bona fides of the claim is required to be established by the landlord, the ground under Section 11(4)(v) does not involve any mental element on the part of the landlord. What is required to be established is whether as a matter of fact the building in question was ceased to be occupied by the tenant during the statutory period of six months and if yes whether the tenant has any reasonable cause for such cessation of occupation. In the instant case the defence was one of the total denial. So the issue which arose was whether the tenant the revision petitioner had ceased to occupy the building continuously for more than six months. It is in evidence that the landlord who filed the Rent Control Petition in 2005 had left the country by early 2007 and the affairs pertaining to the subject building and for that matter the other portions of the larger building belonging to the landlord were being looked after by PW1 on the strength of R. C. R No.168 of 2012 -7- Ext.A1 power of attorney. PW1 has given convincing evidence to the effect that it is he who has been managing the affairs of the landlord with regard to the building after the landlord executed the power of attorney in his favour. He has stated that he has been personally visiting the petition schedule building and he was personally aware that the tenant has ceased to occupy the building continuously. True he did not say in his evidence in so many words that the landlord is not so personally aware of the factum of cessation of occupation. According to us PW1 was quite competent to give evidence on behalf of the landlord who for genuine reason could not give oral evidence in support of the allegations in the Rent Control Petition. The point has been correctly considered by the Rent Control Appellate Authority by applying the principles laid down by the Supreme Court in Janaki Vashdeo v. Indusind Bank (2005(2) KLT 265 (SC) and the judgment of the Rajasthan High Court in Shambu Dutt Shastri v. State of Rajasthan (1986(2) WLN R. C. R No.168 of 2012 -8- 713(Raj)) and Ram Prasad v. Hari Narain and others (AIR 1998 Raj. 185). 4. We are not impressed by the argument that the Advocate Commissioner did inspect another building and not the building which is subject matter of the Rent Control Petition. This aspect also has been throughly analysed by the Rent Control Court as well as the Appellate Authority on the basis of the oral evidence adduced by PW1 and RW1. We do not find any reason to deviate from the finding by the Rent Control Court and the Appellate Authority that the building which was inspected by the Commissioner was the subject building itself. 5. It is the claim of the tenant that he has been continuously conducting his activity of jewellery works in the petition schedule building. The building is an electrified one. It has a fan and a bulb. RW1 conceded that he has not been consuming any electricity in the petition schedule building. He has not been able to produce even a single document R. C. R No.168 of 2012 -9- including the trade licence which is absolutely necessary for conducting any activity within the municipal area to support is claim that he has been continuously conducting his activity. The learned Appellate Authority rightly drew adverse inference against the appellant. When the revision petitioner asserts that he has not ceased to occupy the building and he has been continuously conducting business he had the burden to establish the same by adducing the best quality evidence. On an aspect which is capable of documentary evidence the petitioner should have adduced such evidence and should not have insisted that the authorities should accept his ipse dixit. 6. We should now remind ourselves of the contours of this Court's jurisdiction in which we are presently sitting. In this revision this Court is not expected to make a de novo reappraisal of the evidence for the purpose of substituting conclusions of fact arrived at by the two fact finding authorities especially when they are concurrent. R. C. R No.168 of 2012 -10- 7. Having gone through the judgment of the Appellate Authority and the Rent Control Court's order we are of the view that the finding entered therein regarding the factum of cessation of occupation is a finding entered on the basis of evidence which was found to be acceptable by the two authorities. In short we do not find any warrant for interference under Section 20. Revision fails and the same will stand dismissed. 8. The learned counsel for the revision petitioner on being informed about our decision would request for grant of one year time to surrender the building. We are of the view that we will not be justified in granting so much time to the revision petitioner in this case where he has been ordered to be evicted on the ground of cessation of occupation. Nevertheless we direct the execution court to keep in abeyance order of delivery for a period of six months from today on condition that the revision petitioner files an affidavit before the execution court within a period of three R. C. R No.168 of 2012 -11- weeks from today undertaking as follows:- 9. That he shall give peaceful surrender of the building to the respondent within a period of six months from today and that he shall discharge arrears of rent if any within one month and shall pay occupation charges at the current rent rate till he surrenders the building without fail. We make it clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE R. C. R No.168 of 2012 -12-