Revision against eviction order. Court upheld eviction under Section 11(4)(v) as tenant failed to prove actual trade conduct despite paying taxes; commission report showed premises abandoned without electricity.
Revision petition dismissed; eviction order under Section 11(4)(v) of the Act upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL &
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940
RCRev.No. 230 of 2018
AGAINST THE JUDGMENT IN RCA 228/2016 of the RENT CONTROL APPELLATE AUTHORITY/ ADDL. DISTRICT JUDGE, VADAKARA DATED 07-04-2018
AGAINST THE ORDER IN RCP 65/2015 of MUNSIFF COURT, VADAKARA DATED 27-07-2016
REVISION PETITIONER/ APPELANT IN RCA/ RESPONDENT IN RCP/ TENANT :-
THOCHATT MUHAMMADALI, S/O.MOOSA, AGED 45 YEARS, ELECTRONIC REPAIRER, AYANCHERI AMSOM, DESOM, THAROPOYIL P.O., VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY
RESPONDENTS/ SUPPL. RESPONDENTS IN RCA/ HEIRS OF PETITIONER IN RCP/ LANDLORDS:-:
1. BIYYATHU HAJJUMMA,
2. KUNHAMI,
3. ASYA VELLARAT,
4. NAFEESA,
5. SULIKHA,
6. SARA,
RCRev.No. 230 of 2018
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| 7. | RUKHIYA, | |||
|---|---|---|---|---|
| W/O.HAMEED |
, KARY |
ATT HOU |
SE, |
|
| AYANCHERI | AMSOM, | DESOM, | VATAKARA TALUK - 673 101. | |
| 8. |
FATHIMA, |
|||
| W/O.AMEER, | KARYA | TT HOUS | E, | |
| AYANCHERI | AMSOM, | DESOM, | VATAKARA TALUK - 673 101. | |
| 9. |
ABDULLA HA |
JI, |
||
| S/O.KUNHAM | MED HA | JI, KAR | YATT HOUSE, | |
| AYANCHERI | AMSOM, | DESOM, | VATAKARA TALUK - 673 101. | |
| 10. | ABDURAHIMA | N, | ||
| S/O.KUNHAM | MED HA | JI, KAR | YATT HOUSE, | |
| AYANCHERI | AMSOM, | DESOM, | VATAKARA TALUK - 673 101. | |
| 11. | ABDUL SALA | M, | ||
| S/O.KUNHAM | MED HA | JI, KAR | YATT HOUSE, | |
| AYANCHERI | AMSOM, | DESOM, | VATAKARA TALUK - 673 101. | |
| R1 BY ADV. | SRI. | ABRAHAM | P.GEORGE (CAVEATOR) |
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :
RKM
K. HARILAL & ANNIE JOHN, JJ.
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R.C.R. No. 230 of 2018
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Dated this the 1st day of August, 2018
ORDER
K. Harilal, J.
The revision petitioner is the tenant, who is confronting with an order of eviction, passed concurrently, against him under Section 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'). The parties are referred to as in the Rent Control Petition. According to the averments in the Rent Control Petition, the respondent has ceased to occupy the petition schedule room for more than 3 years. He is not opening the same and he has not done any business or trade in the said room for the aforesaid period and non-occupation was continuous and without any reason.
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to repair a radio after closing down the premises in the afternoon. With the aforesaid averments, he prayed for the dismissal of the Rent Control Petition.
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below are vitiated by perversity or non-consideration of the material evidence. The learned counsel for the respondent mainly contended that the date of filing the Rent Control Petition is crucial as well as decisive and in the absence of evidence showing the occupancy position of the tenanted premises on the date of filing the Rent Control Petition, it cannot be held that the tenant has ceased to occupy the tenanted premises for six months immediately preceding the date of filing the Rent Control Petition. It is further pointed out that in the instant case, the Rent Control Petition was filed on 30.05.2015 and the commissioner had inspected the petition schedule building on 03.06.2015 only. Thus, the state of affairs, as regards the occupancy possession of the petition schedule building, as on 30.05.2015 was not brought to the notice of the court in evidence and the same is fatal. However, the learned counsel for the petitioner cited the decision laid down by this Court in CRP.No.2149/2000 and pointed out that no inference of non-occupation for six months can be drawn from the commission report alone, in the absence of any other evidence to corroborate the inference, that can be drawn from the commission report. Further, it is contended that the courts below have failed to appreciate the commission report in its correct perspective and the inference, which is drawn from the commission report is seen vitiated by perversity.
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reliance on the commission report and drawn an inference that the respondent has ceased to occupy the petition schedule building for a long period, more than six months.
8 . We have meticulously gone through the commission report and examined the Rent Control Petition and the commission application filed by the petitioner. We find that on the date of filing the Rent Control Petition itself, the petitioner has filed the commission application to appoint a commission to ascertain the occupancy position of the petition schedule building and the said application was allowed on the same day itself. But, the Commissioner has visited the petition schedule shop room on 03.06.2015 only and the reason for the delay is best known to the Commissioner only. However, we do not find any reason to draw an adverse inference against the petitioner, for the inspection of the Commissioner, three days after filing the Rent Control Petition. It is true that the commission report stating the occupancy position of the tenanted premises on the date of filing the Rent Control Petition could help the petitioner to substantiate his contention. But, merely on the reason that the Commissioner has inspected the tenanted premises, three days after the date of filing the Rent Control Petition, the probative value of the commission report cannot be reduced. Even if the Commissioner has inspected the petition schedule building, after three days, if the matters disclosing or
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suggesting the occupancy position of the shop room reported by the Commissioner is sufficient to draw an inference that the tenant has ceased to occupy the shop room for six months, the said report can be relied on to determine the non-occupancy of the tenanted premises for a long period also. In the above view, we find that merely on the reason that the Commissioner has inspected the tenanted premises, three days after filing the Rent Control Petition, the inferences of cessation drawn by the courts below cannot be rejected, if those inferences are in conformity with the matters reported by the Commissioner in Ext.C1 report.
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without notice to the respondent, the courts below are justified in admitting the report in evidence, when the Commissioner was examined as PW2. As rightly observed by the courts below, the matters reported by the Commissioner would give rise to an irresistible inference that the respondent has ceased to occupy the building for a long time. It is needless to say, the initial burden is on the landlord and the petitioner has succeeded in discharging the initial burden.
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2014 and 2015. So also, he has obtained Ext.B5 Registration Certificate from the labour department under the Kerala Shops and Commercial Establishments Act, 1960. But, we are of the opinion that on the production of building tax receipts or license fee, no irresistible inference can be drawn to the effect that he was in actual occupation of the tenanted premises by conducting his trade therein. Even if the tenant does not actually occupy the tenanted premises by conducting any business or trade, he can maintain the statutory records up to date by paying the required fees promptly to the concerned department or authority. So, it requires consideration under Section 11(4)(v) of the Act that whether the tenanted premises was in actual occupation of the tenant for six months, immediately preceding the date of institution of the Rent Control Petition.
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instead of electrical energy, he has been using solar energy. But, the Commissioner has not reported the availability of solar energy. The respondent has not taken any steps to prove the availability of solar energy. We are of the opinion that, it is a matter of common knowledge that no repairing of radio or electronic equipments can be carried on without electrical energy from any kind of source, either electrical or solar. No evidence was forthcoming in the instant case to prove that he has availed solar energy instead of electrical energy. Therefore, we are of the opinion that the cessation of occupation of the shop room is evident from the non-availability of electrical or solar energy and further Ext.C1 gives rise to an irresistible inference that the room was remaining in such a condition for a long period. In the absence of any positive evidence to prove the conduct of actual trade or business which is said to have been carried on in the tenanted premises during the last six months from the date of the Rent Control Petition, it can be reasonably inferred that the respondent was not in actual occupation of the petition schedule building during the statutory period under Section 11(4)(v) of the Act. The respondent has miserably failed to rebut the cessation of occupation evidenced by Ext.C1 Commission report and the oral evidence of PW1 and PW2.
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gone through the relevant paragraphs. We are of the opinion that the facts of the case in CRP.No.2149/2000 is entirely different from that of the instant case. In CRP.No.2149/2000, when the Commissioner visited the tenanted premises, it was found open and this Court has appreciated the commission report, on the basis of the state of affairs, on the date of visit of the Commissioner. This Court further held that the commission report alone cannot be taken as a basis for drawing an inference as to the non-occupation of the tenanted premises. But, at the same time, this Court affirmed the legal position that, no doubt, inferences can be drawn from the facts reported by the Commissioner in his report. But, those inferences must be consistent with other inferences that are possible, based on his report. When we apply the above proposition to the instant case, we find that no inference other than the cessation of occupation for a long period can be drawn from Ext.C1 commission report and the evidence of PW1 and PW2. In the absence of anything contrary to the said inferences, in view of the proposition laid down by this Court in CRP.No.2149/2000, the courts below are justified in relying on Ext.C1 commission report and the oral evidence of PW1 and PW2.
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premises. The respondent miserably failed to overcome the reasonable inferences, which could be gathered from the commission report and the oral testimony of PW1 and PW2.
In the above analysis, we do not find any kind of perversity in the appreciation of evidence by the courts below, on Ext.C1 commission report. We do not find any kind of illegality or impropriety in any of the findings whereby the courts below concurrently granted an order of eviction under Section 11(4)(v) of the Act.
This rent control revision fails and is dismissed accordingly.
Sd/-
K.HARILAL JUDGE
Sd/- ANNIE JOHN JUDGE
True copy
PA to Judge
RKM
1 issue framed by the court
Whether the delay of three days in commission inspection renders the report inadmissible or fatal to the eviction claim.
Colour shows how this judgement treated each authority
CRP.No.2149/2000Followed¶78
1 provisions across 1 enactments
THOCHATT MUHAMMADALI
BIYYATHU HAJJUMMA
KUNHAMI
K. HARILAL
ANNIE JOHN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
