Dismissed

Mirvasil Riyas v. Rayaroth Abdurahiman

Kerala HC11 Jul 2019RCRev./258/2016

Case brief

AI extract

What is this about?

The High Court dismissed the rent control revision petition challenging the eviction order. The court upheld the findings of the lower courts that the tenant ceased occupation of the premises for over six months without valid reason, finding the eviction order under the Kerala Building Lease Act legally sustainable despite comparative testimony. A brief relayer period of two months was granted.

What did the court decide?

Revision petition dismissed; tenant allowed two months to vacate the premises upon undertaking and payment of arrears.

Mirvasil Riyas Vs Rayaroth Abdurahiman — Landlord and Tenant | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941

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RCRev..No.258 of 2016

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AGAINST THE JUDGMENT IN RCA 22/2013 of ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA DATED 10-06-2016

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AGAINST THE JUDGMENT IN RCP 39/2012 of MUNSIFF COURT, VADAKARA DATED 31-12-2012

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REVISION PETITIONER/APPELLANT/RESPONDENT :

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MIRVASIL RIYAS

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S/O. ABOOBACKER, AGED 41 YEARS, RESIDING AT HOUSE NO 43/90, CUSTOMS ROAD VATAKARA-03,VATAKARA AMSOM DESOM VATAKARA THALULK

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BY ADV. SRI.ZUBAIR PULIKKOOL

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RESPONDENT/RESPONDENT/PETITIONER:

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RAYAROTH ABDURAHIMAN

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S/O. KUNHAMMAD, AGED 61 YEARS, RESIDING AT HOUSE NO 13/530,V NEAR GOVT. HOSPITAL, VATAKARA, AMSOM DESOM VATAKARA TALUK PIN 682 031

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BY ADVS.

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SRI.B.KRISHNAN SRI.R.PARTHASARATHY

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RCRev..No.258 of 2016

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ORDER

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Heard the learned counsel for the revision petitioner and respondent.

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Revision petitioner has approached this Court challenging the concurrent findings by the Rent Control Court and Appellate Authority that he ceased to occupy the building taken on lease from the respondent for a period of more than 6 months without any valid reason and therefore, liable to be evicted under Section 11(4)(v) of the Kerala Building (Lease and Rent Control) Act, 1965 (in short 'the Act').

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Landlord-tenant relationship between the parties is an admitted fact. It is the case of the landlord/respondent that the plaint schedule room was let out to the revision petitioner on 5.1.2008. The revision petitioner initially conducted a business by name 'Malabar Agency' in the room and thereafter, he changed the business name as 'New Ideal Trading Company'. It is the case that the revision petitioner shifted his residence to Kozhikode and he started business in car accessories by name 'Malabar Trading Co.' at Kozhikode. It is contended by the landlord that thereafter he stopped the business in the petition schedule room and ceased to occupy it for more than six

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RCRev..No.258 of 2016

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months, thereby attracting an order of eviction under Section 11(4)(v) of the Act.

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The revision petitioner filed a counter statement opposing the allegations in the petition. According to him he is conducting business in car accessories in the building and his merchandise are imported from China. Although he started a business in Kozhikode as a branch to his business in the petition schedule room, he never closed down the business in the petition schedule room. He is using the building as a godown. The respondent/landlord was an employee under the revision petitioner. Reckoning the nature of his business, it is not necessary to open the petition schedule room on every day as the same is only used as a godown.

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The Rent Control Court considered the oral evidence of PW1, RW1 and CW1 and also Ext.A1 and Exts.B1 to B4. The Commissioner's report was also considered by the authorities below. The Rent Control Court found that the evidence available in the records would show that the revision petitioner ceased to occupy the building for more than six months. Therefore, the request for eviction was granted.

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Aggrieved by the finding, the tenant/revision petitioner approached the Rent Control Appellate Authority, Vadakara with RCA No.22/2013. On a re-appreciation of the evidence, the Appellate

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RCRev..No.258 of 2016

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Authority agreed with Rent Control Court and confirmed the order of eviction.

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The learned Counsel for the revision petitioner contended that the authorities below failed to consider the material evidence and erroneously passed an order of eviction under Section 11(4)(v) of the Act. It is the case of the revision petitioner that he need not open the building on all days since he is using it for storage of car accessories imported from China. It is an admitted case that he has business in Kozhikode as well.

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Relying on Ext.B4 dated 31.5.2001 it is contended by learned Counsel for the revision petitioner that this document will indicate his business activity in the petition schedule room. Per contra, learned counsel for the respondent contended that Ext.B4 will only show that car accessories worth Rs.5,12,000/- was allowed to be sold by the Commercial Tax Officer, Vadakara and there is no material to show that after 31.5.2011 he conducted any business in the premises till the date of filing the petition. Admittedly the petition was filed on 9.4.2012.

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Learned Counsel for the revision petitioner further contended that PW1 when cross examined did candidly admit that he was a partner of the revision petitioner till March 2012. In this context the

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RCRev..No.258 of 2016

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date of filing of the revision petition on 9.4.2012 assumes importance. According to the learned Counsel even going by the case of PW1 six months time required under Section 11(4)(v) of the Act has not been completed and therefore, the petition is liable to be dismissed.

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In answer to this argument, learned Counsel for the respondent submitted that the revision petitioner has no case in his counter statement that he was doing business in partnership with PW1 at any point of time. Moreover, in his chief examination also he has not deposed such a case. Merely on a slip of tongue by PW1 it cannot be assumed that a partnership firm existed between the contesting parties which lasted till March 2012. As pointed out by the learned Counsel for the respondent there is no material or evidence produced to show the existence of any partnership firm. Therefore, the statement by PW1 in the cross examination indicating the existence of a partnership firm cannot be taken as a fatal admission to over throw his case.

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Reliance has been placed on the Commissioner's report by the learned Counsel for the respondent to contend that the building was in a closed state for more than six months. The courts below relied on the Commissioner's report and the testimony of the Commissioner as CW1. We do no find any material to hold that the

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RCRev..No.258 of 2016

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factual findings rendered by the authorities based on the oral and documentary evidence, including the Commissioner's testimony and her report, that it is illegal or improper.

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Therefore, we find no merit in the revision petition. In the result, the revision petition is dismissed. However the revision petitioner shall be allowed to continue in the premises for a period of two months from today on filing an undertaking affidavit before the Rent Control Court within two weeks that he shall vacate the building within the stipulated period without any demur and also that he shall pay arrears of rent, if any, and continue to pay the rent at contract rate till actual vacation of the building.

Sd/-

A.HARIPRASAD

JUDGE

Sd/-

SHIRCY V.

JUDGE

smm

Mirvasil Riyas v. Rayaroth Abdurahiman

Case brief

What is this about?

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Mirvasil Riyas v. Rayaroth Abdurahiman

Case brief

What is this about?

What did the court decide?

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