## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA**
**WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA,**
## **1944**
## **RCREV. NO. 148 OF 2020**
**AGAINST THE ORDER/JUDGMENT DATED 18.02.2020 IN RCA NO.86 OF 2018 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA CONCURRING WITH THE COMMON ORDER IN RCP NO.78 OF 2014 DATED 20.03.2018 OF MUNSIFF COURT, VADAKARA**
## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS 1 TO 3:**
- **1 YESODHA N.K., AGED 65 YEARS, W/O.LATE BALAN, RESIDING AT “SHINE VILLA”, PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.**
- **2 SHYBI AGED 44 YEARS, D/O.BALAN, RESIDING AT “SHINE VILLA”, PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.**
- **3 SHYJU**
- **AGED 43 YEARS, S/O.BALAN, K.S.R.T.C.DRIVER, RESIDING AT “SHINE VILLA”, PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.**
- **BY ADV ZUBAIR PULIKKOOL**
## **RESPONDENTS/RESPONDENTS/PETITIONERS & 4TH RESPONDENT:**
- **1 VISALAKSHI, D/O.CHATHU, AGED 73 YEARS, HOUSEWIFE, RESIDING AT 'KAMALA SADAN', MAYYANNUR DESOM, VILLIAPPALLI AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT PIN - 673 542.**
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- **2 SHEEBA M.K., D/O.CHATHU, 48 YEARS, RESIDING AT 'KAMALA SADAN', MAYYANNUR DESOM, VILLIAPPALLI AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 542.**
- **3 SHABNA M.K., D/O.CHATHU, AGED 44 YEARS, RESIDING AT 'KAMALA SADAN', MAYYANNUR DESOM, VILLIAPPALLI AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 542.**
- ***4 SHYNOOB, D/O.LATE BALAN, AGED 42 YEARS, RESIDING AT 'KAMALA SADAN', MAYYANNUR DESOM, VILLIAPPALLI AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673542 *(RESPONDENT NO.4 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 24.01.2022 IN IA NO.2 OF 2022 IN RCR NO.148 OF 2020)**
- **BY ADVS.**
- **P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.**
## **-----------------------------------------------**
## **R.C.Rev. No.148 of 2020**
## **-----------------------------------------------**
## **Dated this the 11[th] day of January, 2023.**
## **O R D E R**
## **P.B.Suresh Kumar, J.**
The tenants in a proceedings for eviction under Sections 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) are the petitioners in this revision petition. The Rent Control Court ordered eviction of the tenants, and the said decision was affirmed in appeal by the Appellate Authority. The said decisions have been set at naught by this Court in R.C.R. No.320 of 2017, and the matter was sent back to the Rent Control Court for fresh decision after examining the Advocate Commissioner who was appointed in the proceedings. Pursuant to the said order, the Rent Control Court ordered eviction of the tenants again, after examining the Advocate Commissioner and the said decision of the Rent Control Court was also affirmed in appeal by the Appellate Authority. It is aggrieved by
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the said decisions of the authorities below that this revision petition is instituted under Section 20 of the Act.
2. The subject matter of the proceedings is a shop room taken on rent by the predecessor of the tenants, Balan from the predecessor of the landladies, Chathu. The tenant was conducting the business of tobacco and tea dust in the premises. According to the landladies, the tenants have ceased to occupy the tenanted premises after the death of Balan. It is alleged by the landladies in the eviction petition that the premises was not occupied by the tenants for almost 4 to 5 years. The tenants filed objection to the eviction petition contending that after the death of the original tenant, his wife was conducting business of earthen pots and coir products in the premises and the premises was closed down only for a period of 4 months from 07.06.2014 on account of her illness.
3. The evidence in the case consists of the oral evidence tendered by the husband of one of the landladies on behalf of the landladies as PW1, Exts.A1 and A2 documents produced by the landladies, the oral evidence tendered by the wife of the original
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tenant as RW1, Exts.B1 to B15 documents produced by the tenants, the evidence tendered by the Advocate Commissioner as CW1 and Ext.C1 report of the Advocate Commissioner. As noted, on a consideration of the facts and circumstances of the case, the Rent Control Court ordered eviction of the tenants, and the decision of the Rent Control Court was affirmed in appeal.
4. Heard the learned counsel for the tenants as also the learned counsel for the landladies.
5. The learned counsel for the tenants contended persuasively that there is absolutely no evidence to indicate that the tenants have ceased to occupy the premises for a continuous period of six months. He admitted that the wife of the original tenant was not occupying the premises for almost 4 months on account of her illness, but it was asserted by him based on the oral evidence tendered by RW1 and Exts.B1 to B8 receipts evidencing payment of electricity charges, that the wife of the original tenant was conducting business in the premises all throughout except during the period during which she was sick. _Per contra_ , the learned counsel for the landladies supported the impugned decisions of the
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authorities below pointing out that there is no illegality, irregularity or impropriety in the said decisions, warranting interference of this Court, in exercise of power under Section 20 of the Act.
6. The short question that arises for consideration is as to whether the impugned decisions suffer from any illegality, irregularity or impropriety, warranting interference by this Court, in exercise of the power under Section 20 of the Act.
7. Before dealing with the argument advanced by the learned counsel for the tenants, it is necessary to understand the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material
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evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act.
8. The eviction petition was one instituted on 19.09.2014. The original tenant died almost 4 to 5 years prior to the institution of the eviction petition. As noted, the allegation in the eviction petition is that the tenants are not occupying the premises after the death of the original tenant. The stand of the tenants in the counter-affidavit is that the wife of the original tenant was running the business of earthen pots and coir products in the premises after the death of the original tenant and that she was not occupying the premises only for about 4 months from 07.06.2014. The question whether a landlord in a given case has established the fact that the tenant ceased to occupy the tenanted premises for a period of six months is a question to be decided by the authorities based on the facts and circumstances, and the evidence let in by the parties. In the case on hand, the husband of one of the landladies gave evidence as PW1. He categorically stated that he has personally
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seen the shop room being closed all throughout after the death of the original tenant. Nothing was brought out in the crossexamination of PW1 to discredit his evidence. The said evidence is reinforced in Ext.C1 report of the Advocate Commissioner. It is observed by the Advocate Commissioner in Ext.C1 report that when he inspected the premises on 19.09.2014, the shop room was found closed, dust was seen deposited on the shutters and that the shutters and lock were found rusted. The tenants do not dispute the facts reported by the Advocate Commissioner. In light of the said evidence, insofar as the tenants admitted that the premises had remained closed from 07.06.2014, it was obligatory for the tenants to prove that they were occupying the premises prior to 07.06.2014. There is absolutely no material to show that the wife of the original tenant namely RW1 was conducting business in the premises prior to 7.6.2014. The Appellate Authority has taken note of the fact that RW1 admitted that she has not taken licence from the local authority for conducting business in the premises and that she was also not paying profession tax. The Appellate Authority also took note of the fact that even though RW1 stated in her evidence that she has in her
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possession, bills indicating purchase of various products for her business, she did not produce the same. The Appellate Authority further took note of the fact that RW1 could have examined the neighboring shop owners to show that she was conducting business in the premises prior to 07.06.2014 and that she has not chosen to do so. The Appellate Authority found that Exts.B1 to B8 documents produced by the tenants to prove that they were conducting the business, are only receipts evidencing payment of electricity charges, in which the name of the consumer is shown as Kunhikannan and that RW1 has admitted that it does not pertain to the subject premises. It was also observed by the Appellate Authority that even if it is assumed that Exts.B1 to B8 relate to the subject room, they do not show usage of electricity, as the electricity invoice will be raised for minimum charges, even if the premises is not occupied. Apart from all that, the Appellate Authority also found that even the case set out by the tenants that the premises was not occupied for a period of 4 months from 07.06.2014 on account of the illness of RW1, it has come out that during the said period, she made a social visit to Singapore. In the aforesaid
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facts and circumstances, we do not find any illegality, irregularity or impropriety in the impugned decisions of the authorities below.
The revision petition, in the circumstances, is devoid of merits and the same is accordingly, dismissed.
Sd/-
**P.B.SURESH KUMAR, JUDGE.**
Sd/-
**C.S.SUDHA, JUDGE.**
YKB
