R.C.(Rev) No.55 of 2024

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 ``` ``` RCREV. NO.55OF 2024 ``` ``` AGAINST THE JUDGMENT IN RCA NO.23 OF 2022 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ARISING OUT OF THE ORDER IN RCP NO.28 OF 2019 OF MUNSIFF COURT, VADAKARA ``` ## **`REVISION PETITIONERS/APPELLANTS/RESPONDENTS:`** ``` 1SAROJINI AGED 71 YEARS W/O LATE P.C.KUNHIRAMAN, JANUTTI SADANAM, PALAYAD VILLAGE, MUTHUVANA P.O,VATAKARA, KOZHIKODE., PIN - 673523 ``` ``` 2RAJESH AGED 45 YEARS JANUTTI SADANAM, PALAYAD VILLAGE, MUTHUVANA P.O,VATAKARA, KOZHIKODE., PIN - 673523 ``` ``` 3RAJEESH AGED 43 YEARS JANUTTI SADANAM, PALAYAD VILLAGE, MUTHUVANA P.O,VATAKARA, KOZHIKODE., PIN - 673523 ``` ``` BY ADVS. T.D.SUSMITH KUMAR T.O.DEEPA JAYKAR.K.S. C.SIVADAS ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONER:`** ``` 1MEETHALE KADIYANTHOTTATHIL C.H.MEENAKSHI AGED 73 YEARS W/O LATE KUNHIRAMAN, KADIYANTHOTTATHIL ,VADAKARA, KOZHIKODE., PIN - 673101 ``` 2 ## R.C.(Rev)No.55 of 2024 ``` 2MEETHALE KADIYANTHOTTATHIL SADANANDAN AGED 53 YEARS S/O LATE KUNHIRAMAN, KADIYANTHOTTATHIL ,VADAKARA, KOZHIKODE., PIN - 673101 ``` ``` 3MEETHALE KADIYANTHOTTATHIL VIVEK AGED 44 YEARS S/O LATE KUNHIRAMAN, KADIYANTHOTTATHIL ,VADAKARA, KOZHIKODE., PIN - 673101 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.(Rev)No.55 of 2024 ## **O R D E R** ## G. Girish, J. The revision petitioners are the tenants in R.C.P.No.28 of 2019 of the Rent Control Court, Vatakara who suffered an order of eviction under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The appeal preferred by them before the Rent Control Appellate Authority (Additional District Judge), Vatakara as R.C.A.No.23 of 2022 also met with failure. Challenging the concurrent verdicts of the Rent Control Court and Appellate Authority, the petitioners are here with this revision. 2. The petition schedule shop room which originally belonged to the husband of the 1[st] respondent, bequeathed upon his wife and children who are the respondents-landlords. It was leased out to the husband of the 1[st] petitioner in the year 1987. After the death of the 1[st] petitioner’s husband, the petitioners continued to be the tenants of the shop room with its fair rent fixed at Rs.900/- per month from 11.03.2005 onwards. Complaining the non-payment of rent from 12.12.2015 onwards, and the cessation of occupation for a period of more than one year, the respondents-landlords approached the Rent Control Court for eviction of the revision petitioners. During the pendency of the above proceedings, the petitioners cleared the arrears of rent. Though the petitioners 4 R.C.(Rev)No.55 of 2024 disputed the allegation of cessation of occupation, the Rent Control Court, after analysing the evidence on record, ordered eviction on the ground envisaged under Section 11(4)(v) of the Act. The Appellate Authority after a re-appraisal of the evidence, upheld the verdict of the Rent Control Court. In the present revision, the petitioners would contend that the Rent Control Court as well as the Appellate Authority went wrong in analysing the evidence and applying the principles of law. 3. Heard the learned counsel for the revision petitionerstenants and the learned counsel for the respondents-landlords. 4. The point to be decided is whether the concurrent findings of the Rent Control Court and the Appellate Authority directing eviction of the revision petitioners under Section 11(4)(v) of the Act, is liable to be interfered with. 5. The landlord-tenant relationship between the parties are not in dispute. Though the revision petitioners raised a contention before the Appellate Authority that the proceedings are not maintainable since all the co-owners of the petition schedule building are not impleaded, the above challenge has been rightly repelled by the said authority by relying on **Manager, Sai Service Station Limited v. Dileep Ganesh [2022 (1) KHC 700]** , and outlining the 5 R.C.(Rev)No.55 of 2024 principle that if the owners are having no conflict of interest, one coowner can file a petition for eviction of the tenant without the junction of the other co-owners in the proceedings. There is absolutely no scope for the above challenge raised by the revision petitioners. 6. As regards the cessation of occupation of the petition schedule shop room by the revision petitioners, the trial court as well as the Appellate Authority placed reliance upon the evidence adduced by the 3[rd] respondent and Advocate Commissioner as PW1 and PW2, and held that the landlords successfully established their contention that the petition schedule shop room was being kept unoccupied for a period of more than one year past the institution of the R.C.P. True that the revision petitioners assailed the evidence of the landlords alleging inconsistency in their versions regarding the period of non-occupation. However, it has been observed by the Appellate Authority that the evidence adduced by PW1 on 10.11.2020 pointing to the non-occupation of the petition schedule shop room by the tenants for a period of three years prior to that date would clearly establish the cessation of occupation for a period of more than one year prior to the date of institution of R.C.P. The Appellate Authority also rightly held that the exact date from which the shop remained closed is not having much relevancy, and that for 6 R.C.(Rev)No.55 of 2024 the application of Section 11(4)(v) of the Act, what the landlord is expected to establish is the cessation of occupation for a period of more than six months prior to the institution of the petition. The failure of the tenants to prefer any objection to the commission report pointing to the existence of the petition schedule shop room, at the time of her visit, as closed is also noted by the Appellate Authority. In addition to that, the absence of any evidence which the tenants could procure to establish the licence or any other permits issued by the statutory authorities for the alleged business said to have been conducted in the petition schedule shop room, is pointed out by the Appellate Authority as a reason for taking a view in support of the contention of the landlords. The evidence of RW1 with regard to the occupation of petition schedule shop room, cannot be attributed any evidentiary value since it is admitted by him that he is not doing any business in that shop room, and that there was no difficulty for the 1[st] respondent who is in occupation of the said shop room to appear before the court and give evidence on that point. Notwithstanding the above statement of RW1, the first respondent did not choose to appear before the Rent Control Court and adduce any evidence pointing to the occupation of the petition schedule shop room for the purpose of the business being conducted by her. As regards the evidence of RW2, who claims to be an 7 R.C.(Rev)No.55 of 2024 employee of the tenants working in the petition schedule shop room, the oral evidence tendered by the said witness cannot be attributed any credence since the tenants could not bring on record any document to show his registration with the Labour Department or the entry of his name in any other statutory registers. All the above aspects are seen rightly articulated in the impugned judgment of the Appellate Authority. 7. In a case where the tenant claims occupation of the leasehold premises for his business or commercial purpose, it is incumbent upon him to bring on record convincing evidence to show that the business or trade claimed by him, is actually being conducted in the leased building. A mere contention of physical possession of the building is not sufficient in such cases where the landlord alleges cessation of occupation of the building by the tenant for his trade or business. 8. While interpreting the law on this point, the Apex Court has held in **Dunlop India Limited v. A.A.Rahna and Another [(2011) 5 SCC 778]** as follows in paragraph No.17 of that judgment: “17. The word "occupy" used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use 8 R.C.(Rev)No.55 of 2024 thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the Court may presume that he has ceased to occupy the building or abandoned it. 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. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building.” ## 9. In **Mahesh Babu v. Kuttiyil Meethal Moidu [2017 (5)** **KHC 254]** a Division Bench of this Court has held that the word ‘occupy’ used in Section 11(4)(v) of the Act has to be given a meaning so as to hold that the tenant is actually using the premises and is not having a mere physical presence or possession. Paragraph No.6 of the order of this Court in the abovesaid case reads as follows: “6. On the basis of Ext.C1 report, the Rent Control Court found that the petitioner could not discharge his initial burden and that the respondent ceased to occupy the petition schedule building on the date of filing the petition. In the appeal, on the other hand, the Appellate Authority meticulously analyzed the Commission report particularly in view of the statutory requirements constituting ground of eviction under Section 11(4)(v) of the Act. The Appellate Authority has relied on Liji Agencies v. Raghunath, 2012 (1) KHC 604 : 2012 (1) KLT 665 : 2012 (1) KLJ 621 wherein this Court held that 9 R.C.(Rev)No.55 of 2024 occupation in the context of Section 11(4)(v) with respect to a commercial building means occupation by conducting of business and not a mere physical presence in the shop. In view of the above decision the Appellate Authority held that the word 'occupy' has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. We find that the above view by the Appellate Authority is supported by the decision of this Court in Mathai Antony v. Abraham, 2004 KHC 1107 : 2004 (3) KLT 169 : 2004 (2) KLJ 379, wherein it is held that the word 'occupy' in the context of Section 11(4) (v) has to be understood in the light of object and purpose of the Rent Control Act in mind. Further it was held that the word 'occupy' in certain context indicates mere physical presence but in other context, actual enjoyment. We are of the opinion that as far as a commercial occupation is concerned, mere physical presence without conducting the business will not satisfy the requirement constituting ground of eviction under Section 11(4)(v) of the Act. The Appellate Authority is justified in analyzing the evidence on record in view of the legal proposition held above.” 10. As far as the present case is concerned, the revision petitioners-tenants could not bring on record any evidence to rebut the evidence adduced by the respondents-landlords with regard to the cessation of occupation of the petition schedule shop room for a period of more than one year prior to the institution of rent control petition. That being so, there is absolutely no scope for any interference with the concurrent findings of the Rent Control Court and the Appellate Authority ordering eviction of the tenants from the 10 R.C.(Rev)No.55 of 2024 petition schedule shop room on the ground of cessation of occupation envisaged under Section 11(4)(v) of the Act. 11. Accordingly, we find no merit in this revision, and order its dismissal. However, the respondents-tenants in the Rent Control Petition will be granted two months’ time to vacate the petition schedule shop room if they are ready to abide by the conditions stipulated hereunder: - (i) The respondents-tenants in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within two months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop room and further that they shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; - (iii) Needless to say, in the event of the respondents-tenants in the Rent Control Petition failing to comply with any one 11 ## R.C.(Rev)No.55 of 2024 of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. (sd/-) (sd/-) **G. GIRISH, JUDGE** jsr/vgd