R.C.Rev.No.393 of 2019 (P.M. Muhammed Shameem & A.H. Abdul Jamal vs. M.Y. Ameera Ali & Smt. Shaheera)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944** ## **R.C.REV.NO.393 OF 2019** **AGAINST THE JUDGMENT DATED 07.03.2019 PASSED BY THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM IN R.C.A.NO.28 OF 2017 ON APPEAL FROM THE ORDER OF THE MUNSIFF AND RENT CONTROL COURT, KOCHI DATED 28.02.2017 IN R.C.P.NO.22 OF 2015** ## **REVISION PETITIONERS:** **1 P.M.MUHAMMED SHAMEEM, AGED 35 YEARS S/O.HAJI, P.H.MOHAMMED IBRAHIM, H.NO. C.C.12/1214, AL-AMEEN, PANAYAPPALLY, KOCHI-682 002, REPRESENTED BY POWER OF ATTORNEY HAJI, P.H. MOHAMMED IBRAHIM, H NO. C.C.12/1214, AL-AMEEN, PANAYAPPALLY, KOCHI-682 002. 2 A.H.ABDUL JAMAL, AGED 48 YEARS S/O.HAJI ABUDL HAMEED, H NO. CC V/1268, JAMAL MANZIL, KOMBARAMUKKU, KOCHI-682 002, REPRESENTED BY POWER OF ATTORNEY, HAJI P.H., MOHAMMED IBRAHIM, H.NO CC.12/1214,AL-MAEEN, PANAYAPPALLY, KOCHI-682 002.** **BY ADVS. C.KHALID SHIFA LATHEEF T.P.SAJID** ## **RESPONDENTS:** **1 M.Y.AMEER ALI, AGED 60 YEARS S/O.LATE HAJI.M.A, YUSAF, C.C NO.44/1871 A, S.R.M. ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK.** 2 R.C.R.No.393 of 2019 **2 SMT.SHAHEERA, AGED 53 YEARS W/O.AMEER ALI, C.C NO.44/1871 A, S.R.M. ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK.** **BY ADVS. SRI.C.P.WILSON SMT.ROSE MICHAEL** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.R.No.393 of 2019 ## **O R D E R** ## Ajithkumar, J This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is filed by the respondent-tenant in R.C.P No.22 of 2015 on the file of the Rent Control Court (Additional Munsiff), Kochi. The respondent- landlord filed the R.C.P seeking eviction of the petitioner from the petition schedule shop room under Section 11(2)(b) and 11(4)(v) of the Act. The R.C.P was allowed against which an appeal was filed under Section 18(1)(b) of the Act by the petitioner. Since the appeal was also dismissed, the petitioner has filed this revision petition. 2. On 28.10.2019, this revision was admitted to file and the execution of the order of eviction was stayed for a period of two months. The order of stay was extended from time to time and is still in force. 3. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondent. 4 ## R.C.R.No.393 of 2019 4. The respondent filed the R.C.P alleging that the petitioners defaulted payment of rent which is at the rate of Rs.9,200/- per month from May 2014 onwards and also that since April 2014, the petitioners ceased to occupy the tenanted premises without any reasonable cause. 5. The claim for eviction on the aforesaid grounds was resisted by the petitioners by filing a counter through their power of attorney. It was contended that the rate of rent asserted by the respondent is incorrect and that there has not been any default in payment of rent. Rs.8,00,000/- was paid as advance and even if there occurred any default in payment of the rent, respondent can well appropriate the same from the said advanced amount. The first petitioner is abroad and the 2[nd] petitioner is a doctor by profession. Therefore, the father of the 1st petitioner who is also the power of attorney of both the petitioners had been conducting the shop. He fell ill and therefore he could not conduct the business in the petition schedule shop room for some period. Thus for sufficient reason only there occurred cessation of occupation. 5 R.C.R.No.393 of 2019 The petitioners thereby contended that there was no reason for ordering eviction. 6. PWs 1 and 2 and RW1 besides CW1, the Commissioner were examined. Exts.A1 to A6, B1 to B9 and C1 were the documents produced. 7. The Rent Control Court after considering the said evidence, concluded that there was default in payment of rent and cessation of occupation of the petition schedule premises for more than six months next before filing of the Rent Control Petition. Eviction was accordingly ordered. The petitioners had paid the entire arrears of rent after filing of the appeal. Therefore, the order of eviction under Section 11(2)(b) of the Act does not survive. The Appellate Authority considered the contentions of the petitioners to assail the findings of the Rent Control Court with respect to the order of eviction under Section 11(4)(v) of the Act. After detailed consideration and re-appreciation of evidence, the Appellate Authority concurred with the finding of the Rent Control Court. 8. The learned counsel appearing for the petitioners 6 ## R.C.R.No.393 of 2019 would contend that the power of attorney holder of the petitioners, who was examined as RW1 before the court, is none other than the father of the 1st petitioner and brother of the 2nd petitioner, and he, being a member of the family of the petitioners, had been conducting the jewellery business in the petition schedule shop room. The business was for and on behalf of the petitioners. On account of serious ailments, as can be seen from Exts.B7 to B9, RW1 could not conduct the business for a short period and in such circumstances, the mischief of section 11(4)(v) would not attract in this case. 9. PW1, the respondent deposed in court that for more than two years before the filing of the petition, the petition schedule shop room had been kept closed. CW1, the Commissioner appointed in the case inspected the petition schedule premises on 06.08.2015. She deposed in court that many posters were seen affixed on the shutters of the shop. Several vehicles were seen parked in the front yard. She had enquired with the neighbouring shop owners. From all such materials, she concluded that at least for about two years, the 7 R.C.R.No.393 of 2019 said shop room had been kept closed. Relying on the said evidence, the respondent pleaded before the court that eviction on the ground of cessation of occupation should be the obvious result. 10. The case of the petitioner itself is that they have not been doing the business personally in the petition schedule shop room. Their power of attorney, RW1 has been doing the business and for that purpose, the room was availed on rent. The evidence tendered by the petitioner is that on account of the ill health of RW1, the shop had to be closed. The evidence brought on record by the respondent that at least for two years, next before filing of the petition, the shop room was not in occupation is not seriously controverted. Even if the version of RW1 that he was ill and therefore he could not conduct the business is accepted, that is not a sufficient justification to avoid eviction. There is nothing in evidence to sow that RW1 is the real tenant. The inability of a power of attorney cannot be an excuse for the non-occupation of the tenanted premises by the tenant. The purport or the 8 ## R.C.R.No.393 of 2019 purpose of providing the sluice to the tenant that by proving sufficient reason he can avoid an order of eviction cannot be expanded to include an inability of the power of attorney of the tenant. ## 11. In **Aboobacker A.K. v. Puthiyaveettil Narayanan** **[2010(4) KHC 836]** , it is held that when a person other than a tenant is in possession of leasehold and even in the absence of a sub-lease, the possession of that third person cannot be treated as possession by the tenant. It was also held that occupation contemplated under Section 11(4)(v) is the occupation by the tenant himself and not by anyone else. 12. About reasonable cause, this Court in **Kallullathil** ## **Sasidharan v.Kadesaumma and others [2010(3) KHC** **56]** , held that reasonable cause should be a cause that is not within the control of the tenant and should be something that prevents him to be in regular occupation of the tenanted premises. In order to get the benefit of reasonable cause, the tenant is expected to concede that there was cessation of occupation and that such cessation was due to some 9 R.C.R.No.393 of 2019 reasonable cause that was beyond his control. Viewed in the light of the said proposition of law, the reason offered by the petitioners is not a justification for the non-occupation of the petition schedule premises. 13. The learned counsel appearing for the petitioners canvassed for a position that RW1 being a member of the family of the petitioners, his inability has to be treated as a sufficient cause. He placed reliance on the decision of the Apex court in **Baldev Sahai Bangia v. R.C.Bhasin [(1982)** **(2) SCC 210]** . In that case, the term 'member of the family' in the context of the proviso (d) to Section 14(1) of the Delhi Rent Control Act, 1958 was interpreted to include the mother and brother of the tenant. The Apex court held that the cause of action for eviction arose if neither the tenant nor any member of the family has been residing in the tenanted premises for more than six months immediately before the filing of the application and in that context, the family has to be understood to include the mother also. The said rule has no application here for the reasons, firstly, Section 11(4)(v) says 10 R.C.R.No.393 of 2019 only cessation of occupation by the tenant and secondly, the petition schedule shop room was taken for a commercial purpose and not for residential purpose. 14. In the said circumstances, we are of the view that none of the contentions raised by the learned counsel for the petitioners can be accepted so as to dislodge the concurrent findings entered into by the courts below. Only if the findings are shown to be illegal, irregular or improper on account of perversity or wrong application of law this court is expected to interfere with the findings in the exercise of its powers under Section 20 of the Act. No such reason exists in this case. Hence the revision petition is dismissed. 15. The learned counsel for the petitioners has made a request to afford eight months' time for vacating the premises. The learned counsel for the respondents is agreeable to grant a reasonable time. 16. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the 11 R.C.R.No.393 of 2019 following conditions: - (i) The respondent-tenant 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 he will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he 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 respondent-tenant 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 four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in 12 ## R.C.R.No.393 of 2019 the Rent Control Petition failing to comply with any one 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/ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV