Rent Control Revision Nos. 350/2011 and 50/2012, Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935 RCRev..No. 350 of 2011 ( ) --------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 34/2002 of RENT CONTROL APPELLATE AUTHORITY,THRISSUR DATED 02-08-2011 AGAINST THE ORDER/JUDGMENT IN RCP 94/1997 of RENT CONTROL COURT,THRISSUR DATED 04-04-2002 REVISION PETITIONER(S)/REVISION PETITIONERS(R1 TO 6/R1 TO 6): ----------------------------------------------------------------------------------------------------------------------- 1. JOHN S/O.CHALISSERY VETTAN LONAPPAN PALU NEAR 'UNNIMISIHA CHURCH', KIZHAKKEKOTTA CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR-680 005. 2. KOCHU MARY, D/O.CHALISSERY VETTAN LONAPPAN PALU NEAR 'UNNIMISIHA CHURCH', KIZHAKKEKOTTA CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR-680 005. 3. BENNY, S/O.CHALISSERY VETTAN LONAPPAN PALU NEAR 'UNNIMISIHA CHURCH', KIZHAKKEKOTTA CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR-680 005. 4. JOSE, S/O.CHALISSERY VETTAN LONAPPAN PALU NEAR 'UNNIMISIHA CHURCH', KIZHAKKEKOTTA CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR-680 005. 5. THRESSIAMMA, D/O.CHALISSERY VETTAN LONAPPAN PALU NEAR 'UNNIMISIHA CHURCH', KIZHAKKEKOTTA CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR-680 005. 6. SHEENA, D/O.CHALISSERY VETTAN LONAPPAN PALU NEAR 'UNNIMISIHA CHURCH', KIZHAKKEKOTTA CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR-680 005. BY ADVS.SRI.K.RAMACHANDRAN SMT.S.JAYASREE RESPONDENT(S)/APPELLANTS 1 & 2 & R7 & 8/PETITIONERS 1 : 1. C.P.BETSY D/O.CHUNGATH POULOSE, PUNMUNNAM DESOM, THRISSUR TALUK MURINGOOR.P.O.680 316. 2. MARY, D/O.THEKKINIYATH VAREED, POTTORE VILLAGE, KOLAZHY DESOM, THRISSUR TALUK KOLAZHY.P.O.680 010. 3. KURIAKKOSE, S/O.CHALISSERY VETTAN LONAPPAN NOW RESIDING AT ROSE GARDEN, NEAR GIRIJA THEATRE THRISSUR-680 001. 4. JACOB @ CHACKO, S/O.CHALISSERY VETTAN LONAPPAN, OLLUR VILLAGE KUTTANELLUR DESOM, SOUTH ANCHERY, THRISSUR-680 001. R,R4 BY ADV. SRI.K.G.BALASUBRAMANIAN R,R1 BY ADV. SRI.JIJO PAUL R,R4 BY ADV. SMT.AMBILY (PREMKUMAR) R1,R2 BY ADV. SRI.K.JAYAKUMAR (SR.) R1,R2 BY ADV. SRI.M.SREEKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-05-2013, ALONG WITH RCR. 50/2012, THE COURT ON 24/5/2013 PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.Nos.350/2011 & 50/2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 24th DAY OF MAY, 2013** ## **O R D E R** ## Ramachandran Nair, J. Both the revision petitions are filed by the tenants under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'), aggrieved by the order of eviction. The parties are referred to as arrayed in the revision petitions. 2. Respondents 1 and 2/landlords approached the Rent Control Court seeking eviction, by invoking Section 11(4)(v) of the Act. It was alleged before the Rent Control Court that the property was purchased by them as per document No.5038/1997. The tenants ceased to occupy the petition schedule building continuously from October 1996 onwards. 3. We have heard Shri K. Ramachandran, learned counsel appearing for the petitioners in RCR No.350/2011 and Shri K.G. Balasubramanian, learned counsel appearing for the petitioners in RCR No.50/2012 and Shri K. Jayakumar, learned Senior Counsel appearing for respondents 1 and 2/landlords. RCRNos.350/11 & 50/2012 -2- 4. We will summarise the arguments addressed by the learned counsel for the petitioners. It was contended that the reversal of the order passed by the Rent Control Court, by the appellate Authority is not justified. The Rent Control Court, after elaborately considering the evidence, dismissed the eviction petition. It is submitted that the evidence adduced on the part of the landlords is not sufficient to attract the limbs under Section 11(4)(v) of the Act. We were taken through Ext.C1 report of the Commissioner who was examined as CW.1. It was submitted that the report of the Commissioner will show that as on the date of inspection, it was opened and merely because the Commissioner expressed his opinion that there are lot of dust particles and cobwebs in the premises, it cannot be said that the tenants have ceased to occupy the building. It is also submitted that there is evidence in the form of Exts.B1 to B4(c), to prove the contrary. Exts.B1 and B2 are respectively the copy of the order in R.C.A.No.68/1991 and copy of the order in R.C.P.No.33/1982. It is submitted that the previous landlord had approached the Rent Control Court raising two grounds: one under Section 11(4)(v) and the other under Section 11(4)(iii) for reconstruction. Both the grounds were found against the previous landlord. It is also submitted with reference to the dates of the orders, the date of RCRNos.350/11 & 50/2012 -3- Ext.A1 and the date of filing of the present rent control petition that the property was transferred after the judgment in R.C.A. No.68/1991. It is submitted that the observation by the Commissioner that there is no electricity connection and water connection, may not go against the pleas raised by the tenants. Ext.B3 series evidence the payment of electricity charges and Ext.B4 series evidence the payment of profession tax. 5. Learned counsel appearing for the petitioners, Shri K. Ramachandran and Shri K.G. Balasubramanian submitted that there was a dispute between the tenants and respondents 3 and 4 herein which is the subject matter of a suit and based on the interim arrangement the business was being conducted by the tenants. They could not invest further money since if there is an adverse order against them, everything will go to their disadvantage. Therefore, what is contended by the learned counsel for the tenants is that there is a legal occupation of the premises and therefore Section 11(4)(v) is not attracted at all. It is further argued that the contents of the report of the Commissioner would not go to show further that the tenants have ceased to occupy the building for the statutory period. The burden is on the landlord to prove that there are true elements to attract the provision. RCRNos.350/11 & 50/2012 -4- 6. Per contra, Shri K. Jayakumar, learned Senior Counsel for respondents 1 and 2 submitted that the true interpretation of Section 11(4) (v) of the Act will lead to only one inference, going by the admitted facts. It is submitted that the business was stopped long back which can easily be revealed from the Commission report and other attendant circumstances and the failure of the tenants to prove anything by way of production of stock register, day book, ledger, etc. There is no evidence to show that any business activity is going on in the premises. It is also submitted that going by the decisions of the Apex Court and this Court a mere legal occupation will not be sufficient. It is also submitted that the interse dispute between the tenants is not a ground or reasonable cause for stopping the business. Learned Senior Counsel therefore submitted that the expression “cease to occupy” will have relevance and meaning when it is considered as regards the business activity being conducted by the tenants. A tenant cannot plead that he can keep the premises under occupation and refuse to do business and if so, Section 11(4)(v) gives a right to the landlord to get back the building. It is submitted by the learned Senior Counsel that even the claim of legal occupation herein will not help the tenants. Therefore, learned Senior Counsel further submitted that the Appellate Authority has rightly RCRNos.350/11 & 50/2012 -5- reversed the wrong finding rendered by the Rent Control Court. According to the learned Senior Counsel, the Rent Control Court has not properly analysed the evidence in the correct legal perspective. 7. We have gone through the report, Ext.C1. The Commissioner in his report, has stated that at the time of inspection even though the main switch was put on, no supply of electricity was there and no water connection was also there and the iron pipes used for such water connection remained broken and rusted. With regard to any business activities there, what is reported by the Commissioner is that no business is being conducted therein. The schedule room is having 18 wooden planks for closing it and at the time of inspection 8 of them were remaining open. He could seen two glass almirahs inside which are fully covered by dust and cobwebs. He could not find anything to show that there is any business activity there and none of the respondents were seen during the time of inspection. In the two glass almirahs he could find an old bulb cover covered by dust, certain boxes covered by plastics which are also covered by dust, an old watch strap, old baby toys, odomos, two covers of mosquito repellent which are covered with dust, etc. etc. In one of the shelves he did not find anything and he could also find that some articles are being stored RCRNos.350/11 & 50/2012 -6- in the room. There is a wooden cupboard over which two bundles of newspaper are found and a kerosene lamp and rusted and old materials used for weighing articles were also found. Even the electric bulbs and tubes found there are very old and covered by dust. 8. Learned counsel appearing for the petitioners submitted that even the report of the Commissioner will show that at the time of inspection the room was remaining partially opened and a security guard was also there outside it and thus it will lend credence to the plea raised by the tenants. 9. Having perused the report of the Commissioner and having gone through the oral evidence in the matter, what is evident is that there is no material to show that any business activity is going on in the premises. The landlords, by examining the husband of one of the petitioners and through the Commissioner, adduced evidence to show that practically no business activity is going on in the premises. Even though it is contended by the learned counsel for the petitioners that the entire burden of the landlords has not been discharged, as rightly pointed out by the learned Senior Counsel for respondents 1 and 2, the oral evidence coupled with the report of the Commissioner who has been examined as CW.1, will really shift the burden to the tenants. We are of the view that in the light of the RCRNos.350/11 & 50/2012 -7- evidence let in by the landlords clearly the burden had shifted to the tenants. 10. But the evidence on the part of the tenants, viz. the documentary evidence in the form of Exts.B3 and B4, will go to show the payment of electricity charges, water charges and profession tax. They have not let in any evidence by way of production of stock register, day book, ledger, account books and documents showing payment of tax and other things to show that any business activity is going on in the premises. 11. Even going by the explanation offered by the petitioners which is highlighted by the learned counsel for the petitioners, there is a reason for not investing more money for doing any business activity. The pendency of a civil suit is stated to be the reason for not investing any amount for the business. How long since the tenant has stopped the business, is the next question. 12. We were taken through the findings in Exts.B1 and B2. Ext.B2 is the order passed in R.C.P.No.33/1982. With regard to the plea under Section 11(4)(v), the finding was against the landlord as no evidence was adduced to show that the building had been closed as unoccupied. The landlord did not care to get a report by appointing a Commissioner. Of RCRNos.350/11 & 50/2012 -8- course, the explanation by the tenant that they are dissuaded from purchasing new stock since a suit is pending and they are intending to conduct a full-fledged business, was accepted in para 9 of the order. The appellate authority also concurred with the findings rendered by the Rent Control Court. Even though it is contended by the learned counsel for the petitioners that the said orders are binding on the present landlords also, as rightly pointed out by the learned Senior Counsel for the landlords, the period during which the tenants have ceased to occupy which is covered by the present rent control petition, is a different one. Further, the present landlords were not parties to the earlier proceedings. Apart from that, we find that the ground under Section 11(4)(v) was refused mainly for the reason that no evidence was let in by the landlord to show that the tenants have ceased to occupy or the premises were remaining closed. Therein, the Rent Control Petition was of the year 1982. 13. In the light of the factual position that is available from the evidence adduced in the case, really it is a case where the landlords have proved that there is a total stoppage of business and the tenants have failed to adduce evidence to show that any business activity worth the name was going on in the premises. RCRNos.350/11 & 50/2012 -9- 14. What is argued by the learned counsel for the petitioners, Shri R. Ramachandran and Shri K.G. Balasubramanian is that there is a legal occupation in the premises and therefore that will be sufficient to deny the plea of the landlords. 15. In this context, we will refer to some of the decisions relied upon by the learned Senior Counsel for the respondents. In **Abbas v. Sankaran Namboodiri** (1993 (1) KLT 76) it was held in the context of the meaning of the word 'occupation' in Section 11(4)(v) of the Act, that “legal possession is not sufficient”. It was further held that “But possession must combine with something more to make it occupation. Legal possession does not by itself constitute occupation.” 16. In **Mathai Antony v. Abraham** (2004 (3) KLT 169) a Division Bench of this Court reiterated the same position by holding that “mere presence in the premises or intermittent opening of the tenanted premises will not suffice.” It was further held that “the word 'possession' means holding of such possession, _animus possidendi_ , means the intention to exclude other persons. 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.” RCRNos.350/11 & 50/2012 -10- 17. The same view was reiterated in **Kurian Thomas v. Sreedharan** **Menon** (2004 (3) KLT 326). In the recent decision of the Apex Court in **Dunlop India Limited v. Rahna** (2011 (2) KLT 682 - SC), it has been held in para 17 as follows: “The word “occupy” used in S.11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use 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.” Therefore, the contention by the learned counsel for the petitioners that the tenants are in physical possession, will not help them to avoid the consequences provided under Section 11(4)(v) of the Act. In the context of this case it can be seen that the tenants have stopped the business and RCRNos.350/11 & 50/2012 -11- nothing by way of a business activity is going on in the building. 18. Other decisions of this Court have also taken the view that it is for the tenant to prove that the non occupation was with a reasonable cause ( **Mariamma Abraham v. Itty Oommen** - 1994 (2) KLT 740 and **Paulina Joseph v. Idukki District Wholesale Co-operative Consumer Stores Ltd. -** 2006 (1) KLT 603). 19. The reasonable cause, according to the learned counsel for the petitioners herein, is that a civil suit is pending among the tenants who are partners and therefore there is justification for not making investment to conduct the trade. In fact, exactly the same point was considered in **Santha Kumar v. Karthiyani** (2004 (2) KLT 619). Therein, the Division Bench held that “interse dispute between the legal heirs of the original tenant is not a reasonable cause for non user of the tenanted premises continuously for six months.” It was held as follows: “In the absence of any court order or any accident attributable directly and exclusively to natural cause without any human intervention or act of God it cannot be said that the building was not occupied with reasonable cause.” The Bench observed that “the landlord is not concerned with the dispute RCRNos.350/11 & 50/2012 -12- between the respondents.” Herein also, the same situation arises. The alleged pendency of the civil litigation cannot bind the landlord herein. Therefore, it can be safely concluded that the explanation offered by the petitioners is not a reasonable one. 20. In this context, the question whether the evidence adduced by the tenants by way of producing electricity bills and profession tax receipts will help them, is another point. 21. In fact, this Court in **Simon v. Rappai** (2008 (3) KLT 121) has taken the view that “possession must combine with something more to make it occupation.” Therein, a telephone connection given to the room was relied upon by the tenant and the Division Bench was of the following view on the said aspect: “Merely because there was a telephone in the room and room remained open when the Commissioner inspected it, it cannot be held that tenant was doing business therein for the statutory period.” The situation herein is almost similar. One of the contentions made by the learned counsel for the tenants is to the effect that when the Commissioner visited the room, it was partly opened. But we have already noticed the RCRNos.350/11 & 50/2012 -13- details of the report, Ext.C1 will go to show that no business activity is going on in the premises. Therefore, the above dictum will also go against the contentions of the tenants herein. 22. As held by this Court in **Sasidharan v. Kadeesumma** (2010 (3) KLT 50), “the reasonable cause contemplated under Section 11(4)(v) should be a cause which is not within control of tenant and should prevent him from putting the tenanted premises to regular use and occupation.” Such is not the case herein. 23. Therefore, we are of the opinion that the view taken by the Appellate Authority cannot be said to be so perverse, warranting interference by this Court. It is well settled that when the non user is proved, a presumption can be drawn backwards **(Abbas's case** - 1993 (1) KLT 76). 24. Herein, actually no evidence is there on the part of the tenants to prove that any business activity was carried on for the statutory period. They have not produced any account books, day book or stock register and no stock is also there worth mentioning for doing the business. Therefore, in the light of the legal position explained in various decisions noted already, the landlords have clearly discharged the burden and the burden RCRNos.350/11 & 50/2012 **==> picture [21 x 9] intentionally omitted <==** had shifted to the tenants and that they have miserably failed to establish the necessary details in support of their pleas. In the light of the above, we find no reason to interfere with the judgment rendered by the Appellate Authority. We confirm the same and accordingly the revision petitions are dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/** ## **24.5.2013** After the pronouncement of the order, the learned counsel for the petitioner prayed that a reasonable time may be granted to vacate the premises, which is opposed by the learned counsel appearing for the landlord. We grant three months time from today to the petitioners in R.C.R.No.350/2011 to vacate the premises on condition that the petitioners will file an affidavit before the execution court undertaking to hand over peaceful possession of the premises to the landlord, which will be filed RCRNos.350/11 & 50/2012 -15- within three weeks from today. It is further ordered that if there is any violation of the above condition, the petitioners will not be entitled for the above benefit and the landlord will be free to move for execution. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(A.V. RAMAKRISHNA PILLAI, JUDGE)** kav/