P.V. Umesh alias Umesh Kumar v. Kalathil Mariyu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940** ## **RCRev.No. 289 of 2018** **AGAINST THE JUDGMENT DATED 28.03.2018 IN RCA 174/2014 of THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-II), THALASSERY** **AGAINST THE ORDER DATED 24.09.2014 IN RCP.NO.54/2013 of RENT CONTROLLER (MUNSIFF), THALASSERY** **REVISION PETITIONER/ APPELLANT/ RESPONDENT IN RCP/ TENANT :** **P.V UMESH ALIAS UMESH KUMAR, S/O NARAYANAN NAIR, AGED 43 YEARS, RESIDING AT SAROJINI NILAYAM, KODIYERI AMSOM, VAYALALAM DESOM, THALASSERY TALUK, P.O. TEMPLE GATE, KANNUR- 670102.** **BY ADV. SRI.R.SURENDRAN** ## **RESPONDENT/ RESPONDENT/ PETITIONER IN RCP/ LANDLADY :** **KALATHIL MARIYU, D/O MAMMU, 59 YEARS, RESIDING AT RAMSHEER VILLA, THIRUVANGAD AMSOM, THALAYI DESOM P.O. TEMPLE GATE, THALASSERY TALUKL KANNUR - 670 102.** **BY ADV. SRI.T.M.ABDUL LATHEEF** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No. 289 of 2018** 2 ## **ORDER** ## **Annie John, J.** The revision petitioner herein is the respondent in R.C.P.No.54 of 2013 on the file of the Rent Controller (Munsiff), Thalassery and the appellant in R.C.A.No.174 of 2014 on the file of the Rent Control Appellate Authority (Additional District Court No.II), Thalassery. The respondent herein is the petitioner in the RCP and the respondent in the above mentioned appeal. The Rent Control Petition was filed seeking eviction of the tenant under Section 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Hereinafter referred to as 'the Act'). 2. According to the petitioner/ landlady, as per the averments in the petition, the schedule room belonged to the petitioner, Basheer, Shareefa, Kader and Hajra in co-ownership. The building was let out to the tenant as per deed dated 20.01.2004 for a period **RCRev.No. 289 of 2018** 3 of six months fixing a monthly rent of Rs.900/-. Subsequently on partition of the buildings between the co-owners, the petition schedule building was allotted to the share of the petitioner. The tenant continued possession of the building by paying enhanced rent at the rate of Rs.1,200/- per month. 3. The petitioner further alleged that her husband Moidu is jobless and he wanted to start a footwear business and he is depending on the petitioner for the purpose of starting the proposed business in the petition schedule room. The petition schedule room is situated in the heart of Thalassery new bus stand and ideal for starting the proposed business and the petitioner does not have any other vacant building in her possession to start the proposed footwear business for her husband. It is the further case of the petitioner that the tenant kept the shop room idle without conducting any business for the last several years. It is further pleaded that the **RCRev.No. 289 of 2018** 4 tenant has got other sources of income to eke out his livelihood and several vacant buildings are available in the locality for the tenant to carry out his business. Therefore, the landlady claimed eviction of the tenant from the petition schedule building under Section 11(3) and 11(4)(v) of the Act. 4. The landlord filed RCP.No.54/2013 seeking eviction of the petition schedule shop room on the grounds under Sections 11(3) and 11(4) (v) of the Act. It was also alleged that the revision petitioner has ceased to occupy the petition schedule premises without any sufficient cause. Further, the respondent's husband Moidu, who is dependent on the respondent for the purpose of having a room and who has no job or avocation intends to start a footwear business in the petition schedule premises for which the respondent _bona fide_ requires vacant possession. It was further alleged that the revision petitioner is not dependent on the income derived **RCRev.No. 289 of 2018** 5 from the petition schedule building and that there are several rooms available in the locality for the revision petitioner to shift his business. Per contra, the revision petitioner denied the allegation of cessation of occupation and disputed the _bona fide_ need as required by the respondent. After the trial, the lower court has allowed the application under Sections 11(3) and 11(4)(v) of the Act and the revision petitioner was directed to surrender the vacant possession of the petition schedule shop room within one month from this date, failing which the respondent is at liberty to get the order executed through the process of the court. Highly aggrieved by the judgment of the Rent Control Court, the tenant has approached the Rent Control Appellate Authority and after evaluating the arguments and evidence, the Appellate Authority has also confirmed the order passed by the Rent Control Court and dismissed the appeal. Highly aggrieved by the order, the revision petitioner approached this Court. **RCRev.No. 289 of 2018** 6 5. In this connection, we have gone through the matter in detail. As regards the eviction ordered under Section 11(4)(v) of the Act, the respondent/ landlord has averred that the revision petitioner has kept the room idle for years together without conducting any business. The revision petitioner, on the other hand contended that he has not ceased to occupy the petition schedule premises. According to him, he was using the building as an office and store of the transport business, which he is conducting in the room. Over and above, he contended that the income that is derived from the business is only his livelihood. When the revision petitioner disputed the fact that he has ceased to occupy the building, the burden is upon the landlord/ respondent to establish that the revision petitioner has ceased to occupy the building for years back. 6. In order to substantiate this fact, commission was taken out and the Advocate **RCRev.No. 289 of 2018** 7 Commissioner was inspected the spot and filed Ext.C1 report. As per this report, at the time of the inspection, the petition schedule shop room was kept closed and he has also reported that the neighbouring shop owners informed the Commissioner that the petition schedule room was in a closed condition prior to one year and more of the date of inspection. The Advocate Commissioner was examined as PW2 and he has also struck on this point and stated that the petition schedule building was closed for a long period. The revision petitioner has advanced an argument that the Commissioner has not identified the petition schedule room and according to the counsel for the revision petitioner, the Commissioner might have visited some other rooms. 7. It is very important to note that the revision petitioner has not filed any objection to the Commissioner's report and has not taken steps to remit the report for proper identification. Even now, the revision petitioner has not taken **RCRev.No. 289 of 2018** 8 steps to bring the fact that the shop room which occupied was not the one inspected by the Commissioner. So, in the absence of such evidence, it is to be presumed that the revision petitioner has taken this contention only to attack the Commissioner's report to show that the report of the Commissioner is not correct. Again, the revision petitioner has taken a contention against the Commissioner's report that the revision petitioner is a conductor by profession and he is operating the bus service from the petition schedule shop room and the room would be opened only during early mornings and late evenings for which also, he has not produced any documents to substantiate that he is operating the bus service by using the petition schedule shop room as an office of the bus service. He has not produced any documents to prove that he was earning some income out of the business, which is being run in the petition schedule shop room. **RCRev.No. 289 of 2018** 9 8. As we have already held that the revision petitioner has not filed any objection to the Commissioner's report. So, whatever the objection the revision petitioner has taken subsequently against the Commissioner's report is not found to be correct. ## 9. In _**Mathayi and Antony v. Abraham [2004**_ _**(3) KLT 169]**_ , this Court held that a mere physical possession of the tenanted premises would not satisfy the meaning of “occupation” for the purpose of Section 11(4)(v) of the Act. Mere presence in the premises or intermittent opening of the tenanted premises would not suffice. So, what the revision petitioner/ tenant has to establish that he is continuously opening the petition schedule shop room for conducting the business. But, the lack of evidence regarding the running of the business in the petition schedule shop room and also the absence of physical presence of the revision petitioner in the petition schedule shop room is sufficient to **RCRev.No. 289 of 2018** 10 prove that he has ceased to occupy the building for a long period. 10. As per Section 11(4)(v) of the Act “a tenant is liable to be evicted if he ceases to occupy the tenanted premises without reasonable cause for a continuous period of six months immediately preceding the date of the suit. The question is whether the tenant occupies the building and not whether he has got legal possession. Legal possession is always with the tenant until an eviction order is passed and executed and landlord gets the possession in a lawful manner. Legal possession combined with actual physical use of the building is occupation. In order to constitute the ground of 'ceased to occupy', it is imperative on the part of the landlord to establish that not only was the business closed, but also that the tenant had withdrawn from the business activity with the intention to stop the business for all times to come. A casual closure of the shop for certain exigencies would not mean that he had ceased or abandoned his tenancy rights with the intention that he no longer interested in occupying the shop. However gist of above said provision emerges that the intention of the tenant is not relevant, whether he had kept the building for the specified period unoccupied is the relevant question. Once the initial burden that the tenant had ceased to occupy the premises is discharged by the landlord, the burden shifts to the tenant who has to establish that it was not so without reasonable cause”. 11. Only when the landlord succeeded in **RCRev.No. 289 of 2018** **==> picture [12 x 9] intentionally omitted <==** proving that the revision petitioner ceased to occupy the building for a long time, then the respondent is entitled to get the vacant possession of the building by invoking Section 11(4)(v) of the Act. Here in this case, the respondent/ landlord has succeeded in establishing the fact that the revision petitioner has ceased to occupy the building for a long period for more than six months, as envisaged under Section 11(4) (v) of the Act. 12. On going through the evidence and arguments, we are of the opinion that there is no error, impropriety or illegality in the decision which was taken by the Rent Control Court and the Rent Control Appellate Authority with regard to the eviction ordered under Section 11(4)(v) of the Act. 13. The next question to be considered is whether the finding entered by the Appellate Authority under Section 11(3) of the Act is correct or not. According to the respondent, he **RCRev.No. 289 of 2018** 12 _bona fide_ requires the vacant possession of the petition schedule shop room in order to start the footwear business for her husband, who is fully dependent upon her for the purpose of the room. PW1 has stated that the petition schedule shop room is ideal for such a business. 14. Here also, the revision petitioner has taken a contention that he is conducting a transport service in the petition schedule room and there is no _bona fides_ on the part of the respondent for seeking eviction of the revision petitioner from the petition schedule shop room. It was alleged that the revision petitioner is not depending upon the income derived from the petition schedule shop room. The respondent's husband was examined as PW1 and he has given evidence to the effect that he _bona fide_ requires the petition schedule shop room for the purpose of starting the footwear business. Here also, as usual, the revision petitioner has taken a contention that PW1 is not sufficiently **RCRev.No. 289 of 2018** 13 experienced in conducting the proposed business and he had no previous experience in the same field. When the revision petitioner was examined, he conceded that PW1 conducted the business earlier. The financial and physical ability of PW1 to commence a business was also challenged. It is not necessary that, in order to start a small business as proposed by PW1, much experience is required and a huge amount is not required for starting the footwear business. The revision petitioner has no case that the petition schedule shop room is not suitable for starting a footwear shop. It is also evident from the testimony of PW1 that he is fully depending upon her wife for the building alone and he is not depending upon the financial capacity of the landlady. Even though PW1 was elaborately cross examined by the revision petitioner, nothing was brought out to discard his evidence. It is well settled that the previous experience regarding the commencement of the proposed business is not a ground to deny the **RCRev.No. 289 of 2018** 14 claim put forward by the respondent. It is not up to the tenant to dictate the landlord how to start a business in the petition schedule building. So, we find that the respondent has succeeded in establishing that she _bona fide_ requires the building for her husband for starting the footwear business. 15. The next question to be considered is whether the revision petitioner is entitled to get the benefit as contemplated under the 1[st] and 2[nd] proviso to Section 11(3) of the Act. It was contended by the revision petitioner that the respondent is having another building in his occupation. But he has not adduced any evidence to prove the same. So, in the absence of such evidence, he is not entitled to get any benefit as contemplated under the first proviso to Section 11(3) of the Act. Lastly, he contended that he is fully depending upon the income from the business, which is being run in the petition schedule shop room and there was no other vacant room in the **RCRev.No. 289 of 2018** 15 near proximity to shift his business. As we have already held that he ceased to occupy the building for more than six months and he has not produced any current data regarding the running of the business in the petition schedule building. So, the contention that he is fully depending upon the income, which is derived from the petition schedule shop room is found to be incorrect. Even though the respondent has assertively stated that other rooms are available for the revision petitioner to shift his office, no Commission was taken out to establish these facts. 16. During cross examination of RW1, he has also expressed ignorance regarding the availability of rooms in the near locality. RW1 has also admitted that his brother is running an office for bus service in the bus stand itself. He has also admitted that there is a building complex owned by the Municipality near to the bus stand. Huge amount is required to get such room. But these facts have not been proved and established **RCRev.No. 289 of 2018** 16 by RW1. RW1 has admitted that there is a two storied building in the locality. He has not enquired as to whether vacant rooms are available there or not. When it was suggested to RW1 that room No.46/340 and 46/422 in a building owned by one Ananthan Nair are vacant, he expressed ignorance regarding the fact. So, the revision petitioner has failed to establish the ingredients as contemplated under the 1[st] and 2[nd] proviso to Section 11(3) of the Act. 17. On going through the judgment of the Rent Control Appellate Authority, we find that the court below has rightly appreciated in finding that the respondent has succeeded in establishing the grounds as contemplated under Section 11(3) and 11(4)(v) of the Act. **==> picture [352 x 13] intentionally omitted <==** impropriety or perversity in the findings of the courts below. Therefore, the interference of this Court is not warranted. In the result, the orders passed by the Rent Control Court as well as the **RCRev.No. 289 of 2018** ## 17 Rent Control Appellate authority are hereby confirmed. Accordingly, this Rent Control Revision is hereby dismissed. The learned counsel for the revision petitioner/ tenant prayed for sometime to vacate the tenanted premises. Having regard to the submission at Bar, the revision petitioner/ tenant is given eight months' time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioner/ tenant shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. 2. The revision petitioner/ tenant shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of six months' from today. 3. The affidavit shall be filed before the executing court within a period of one **RCRev.No. 289 of 2018** 18 month from the date of receipt of the copy of this order. 4. In case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent/ landlord is entitled to enforce the order. Sd/- ## **K.HARILAL,JUDGE** Sd/- ## **ANNIE JOHN, JUDGE** True copy PA to Judge RKM