Dismissed

Ayanki Muhammed v. Vysyambath Asma

Kerala HC5 Aug 2022RCRev./11/2022

Case brief

AI extract

What is this about?

Eviction for bona fide business need and six months’ non-occupation without reasonable cause was upheld. The Court declined revisional interference with the concurrent findings and rejected the tenant’s claims under the statutory provisos. The revision was dismissed, with three months to surrender possession subject to conditions.

What did the court decide?

Tenant granted three months to surrender possession, subject to an undertaking, payment of arrears and continuing rent, no third-party induction, and valid permissions for business.

Ayanki Muhammed Vs Vysyambath Asma — Landlord and Tenant | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶3

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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FRIDAY, THE 5TH DAY OF AUGUST 2022 / 14TH SRAVANA, 1944

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R.C.REV.NO.11 OF 2022

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AGAINST THE ORDER DATED 27.02.2019 IN R.C.P.NO.1 OF 2015

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ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF),
MANANTHAVADY CONCURRING WITH THE COMMON ORDER DATED
25.09.2021 IN R.C.A.NO.14 OF 2019 ON THE FILE OF THE RENT
COUNTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE -

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I), KALPETTA

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REVISION PETITIONER:

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AYANKI MUHAMMED, S/O ABU,
AGED 60 YEARS,
NALLOORNADU AMSOM, PAINGATTIRI DESOM,
NALLOORNAD POST, MANANTHAVADY TALUK,
WAYANAD DISTRICT, PIN - 670645

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BY ADVS.
SRINATH GIRISH
P.JERIL BABU

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RESPONDENTS:

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1 VYSYAMBATH ASMA, AGED 54 YEARS, W/O LATE ALIYASSAN ALI, SHOBNA MANZIL, VEMOM AMSOM DESOM, MANANTHAVADY VILLAGE, TALUK AND POST, WAYANAD POST, PIN – 670 645

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2 SHABEER ALI, AGED 37 YEARS, S/O LATE ALIYASSAN ALI,

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R.C.REV.NOs.11 & 12 OF 2022

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SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST,
WAYANAD DISTRICT, PIN- 670 645

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3 SHARMINA, D/O LATE ALIYASSAN ALI,
AGED 35 YEARS,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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4 SHABNA,
AGED 33 YEARS, D/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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5 MUHAMMED ASLAM, S/O LATE ALIYASSAN ALI, AGED 31 YEARS SHOBNA MANZIL, VEMOM AMSOM DESOM, MANANTHAVADY VILLAGE, TALUK AND POST

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WAYANAD DISTRICT, PIN – 670 645

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6 MUHAMMED RASHID,
AGED 28 YEARS, S/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST

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WAYANAD DISTRICT, PIN – 670 645

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7 SHEFNA,
AGED 25 YEARS, D/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶27

R.C.REV.NOs.11 & 12 OF 2022

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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 ANIL K. NARENDRAN

¶32

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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FRIDAY, THE 5TH DAY OF AUGUST 2022 / 14TH SRAVANA, 1944

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R.C.REV.NO.12 OF 2022

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AGAINST THE ORDER DATED 27.02.2019 IN R.C.P.NO.9 OF 2015
ON THE FILE OF THE RENT COUNTROL COURT(MUNSIFF),
MANANTHAVADY CONCURRING WITH THE COMMON ORDER DATED
25.09.2021 IN R.C.A.NO.13 OF 2019 ON THE FILE OF THE RENT
CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE -
I), KALPETTA

¶37

REVISION PETITIONER:

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AYANKI MUHAMMED, S/O ABU,
AGED 60 YEARS, RESIDING AT AYANKI HOUSE,
NALLOORNADU AMSOM, PAINGATTIRI DESOM,
NALLOORNAD POST, MANANTHAVADY TALUK,
WAYANAD DISTRICT,
PIN – 670 645

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BY ADVS.
SRINATH GIRISH
P.JERIL BABU

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RESPONDENTS:

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1 VYSYAMBATH ASMA, AGED 54 YEARS,
W/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST, WAYANAD POST, PIN – 670 645

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2 SHABEER ALI,
AGED 37 YEARS, S/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST,

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R.C.REV.NOs.11 & 12 OF 2022

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WAYANAD DISTRICT, PIN- 670 645

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3 SHARMINA, D/O LATE ALIYASSAN ALI,
AGED 35 YEARS,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE, TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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4 SHABNA,
AGED 33 YEARS, D/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

¶48

5 MUHAMMED ASLAM, S/O LATE ALIYASSAN ALI,
AGED 31 YEARS
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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6 MUHAMMED RASHID,
AGED 28 YEARS, S/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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7 SHEFNA,
AGED 25 YEARS, D/O LATE ALIYASSAN ALI,
SHOBNA MANZIL, VEMOM AMSOM DESOM,
MANANTHAVADY VILLAGE,
TALUK AND POST
WAYANAD DISTRICT, PIN – 670 645

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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R.C.REV.NOs.11 & 12 OF 2022

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ORDER

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Anil K. Narendran, J.

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These Rent Control Revisions, i.e., R.C.Rev.Nos.11 of 2022 and 12 of 2022, are filed by the respondent-tenant in R.C.P Nos.1 of 2015 and 9 of 2015 on the file of the Rent Control Court (Munsiff), Mananthavady. The respondents herein-landlords filed those Rent Control Petitions seeking eviction of the tenant from the petition schedule shop room. R.C.P.No.1 of 2015 is one filed under Section 11(3) of the Act seeking eviction of the tenant on the ground that the 2^nd respondent herein bona fide requires the petition schedule shop room for starting business in hill produce. During the pendency of that Rent Control Petition, the landlords filed R.C.P.No.9 of 2015 under Section 11(4)(v) of the Act, seeking eviction of the tenant on the ground that the tenant ceased to occupy the petition schedule shop room for a period of six months. Before the Rent Control Court, the tenant entered appearance and filed counter. Both the Rent Control Petitions were tried together. On the side of the landlords, PWs.1 and 2 were examined and Exts.A1 to A5 were marked. On the side of

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the tenant, he was examined as RW1. The Advocate Commissioner, who submitted Exts.C1 and C2 reports, was

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R.C.REV.NOs.11 & 12 OF 2022

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examined as CW1. Exts.X1 and X2 series were marked through PW2.

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After considering the pleadings and evidence on record,

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the Rent Control Court arrived at a conclusion that the need projected in R.C.P.No.1 of 2015 for seeking an order of eviction under Section 11(3) of the Act is bona fide; that the first proviso to Section 11(3) of the Act has no application; and that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. In R.C.P.No.9 of 2015, the Rent Control Court found that the tenant ceased to occupy the petition schedule shop room without reasonable cost, for a period of six months, which continued even as on the date of filing of R.C.P.No.9 of 2015. Therefore, the Rent Control Court by a common order dated 27.02.2019 in R.C.P.Nos.1 of 2015 and 9 of 2015 granted an order of eviction under Sections 11(3) and 11(4)(v) of the Act and the tenant was directed to surrender vacant possession of the petition schedule shop room to the landlords, within a period of six months from the date of that order. Challenging the order of eviction granted by the Rent Control Court in R.C.P.Nos.1 of 2015 and 9 of 2015, the tenant filed R.C.A.Nos.13 and 14 of 2019 respectively before the Rent

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R.C.REV.NOs.11 & 12 OF 2022

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Control Appellate Authority (Additional District Judge–I), Kalpetta, invoking the provisions under Section 18(1)(b) of the Act. Those appeals ended in dismissal by the judgment dated 25.09.2021, whereby the findings of the Rent Control Court stand confirmed. Challenging the judgment dated 25.09.2021 of the Rent Control Appellate Authority in R.C.A.Nos.13 and 14 of 2019 and the order dated 27.02.2019 of the Rent Control Court in R.C.P.Nos.1 of 2015 and 9 of 2015, the petitioner-tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.

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Heard the learned counsel for the petitioner-tenant.

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The issue that arises for consideration in this Rent

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Control Revision is as to whether any interference is warranted on the order of eviction, concurrently passed by the authorities

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below, under Sections 11(3) and 11(4)(v) of the Act.

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Section 11 of the Kerala Buildings (Lease and Rent

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Control) Act deals with eviction of tenants. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation

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or for the occupation by any member of his family dependent on

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R.C.REV.NOs.11 & 12 OF 2022

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him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.

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In Adil Jamshed Frenchman v. Sardur Dastur

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Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with

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a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing

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R.C.REV.NOs.11 & 12 OF 2022

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himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in Deena Nath v. Pooran Lal [(2001) 5 SCC 705] bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.

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In Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815] , a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in Kizhakkayil Suhara v. Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19] that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor

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the Appellate Authority has considered the need put forward by

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R.C.REV.NOs.11 & 12 OF 2022

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the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord.

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In Ammu v. Nafeesa [2015 (5) KHC 718] a

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Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in

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the absence of any materials to the contra .

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R.C.REV.NOs.11 & 12 OF 2022

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In Regy V. Edthil v. Hubert Leslie D'Cruz [2016

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(2) KLJ 164] , a Division Bench of this Court relied on the decision of the Apex Court in Deena Nath v. Pooran Lal [(2001) 5 SCC 705] , wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in Shiv Sarup Gupta [(1999) 6 SCC 222] , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In Abdul Salam v. Sebastian [2013 (4) KLT 592] , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere

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R.C.REV.NOs.11 & 12 OF 2022

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desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to

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adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act.

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In Gireeshbabu T.P. v. Jameela and others [2021

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(5) KHC SN 30] , a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, held that, in order to satisfy the requirement of Section 11(3) of the Act, a bona fide

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need must be an outcome of a sincere and honest desire of the

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landlord in contradistinction with a mere pretext on the part of

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the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to

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evict the tenant from the said premises, the landlord will certainly

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R.C.REV.NOs.11 & 12 OF 2022

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be entitled for an order of eviction under Section 11(3) of the Act

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but, of course, subject to the first and second provisos to Section 11(3).

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In the instant case, the need projected in the Rent Control Petitions, for seeking an order of eviction under Section 11(3) of the Act, is that of the 2^nd respondent herein to start business of hill produce, in the petition schedule shop room. The need projected for seeking eviction under Section 11(3) of the Act is proved by the oral testimony of the 2^nd petitioner, who was examined as PW1. The case of the tenant was that PW1 is doing business abroad and therefore, there is no bona fide need for him to conduct any business in the petition schedule shop room. The tenant could not succeed in his attempt to show that PW1 is doing business abroad. PW1 has deposed that he genuinely requires the petition schedule shop room for starting business in hill produce, namely, coffee, pepper and ginger. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority arrived at a conclusion that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. The said

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finding of the authorities below is neither perverse nor patently

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R.C.REV.NOs.11 & 12 OF 2022

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illegal and it cannot also be said that while arriving at such a

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finding, the authorities below have committed a manifest error.

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Insofar as the first and second provisos to Section 11(3) of the Act are concerned, the findings of the authorities below are against the tenant. After analysing the evidence on record and also the report of the Advocate Commissioner, the authorities below found that the hall in the upstairs of the building, which had fallen vacant, after filing of R.C.P.Nos.1 and 9 of 2015, is not suitable for the business of hill produce, which cannot be conducted in upstairs. Therefore, the availability of a hall in the upstairs cannot be a ground for attracting the provisions under the first proviso to Section 11(3) of the Act. Insofar as the second proviso to Section 11(3) of the Act is concerned, the tenant, as RW1, admitted that he is a PWD contractor, who undertakes contract works under the Public Works Department and also under the Grama Panchayat. No materials were produced by the tenant in support of his contention that he is entitled to protection of the second proviso to Section 11(3) of the Act. In the absence of any reliable materials, the authorities below rightly found that the first proviso to Section 11(3) of the Act is not attracted and that the tenant is not entitled to the protection under the second

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R.C.REV.NOs.11 & 12 OF 2022

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proviso to Section 11(3) of the Act. The reasoning of the authorities below is neither perverse nor patently illegal and it cannot also be said that any manifest error has been committed by the said authorities while arriving at such a conclusion.

¶118

As per Section 11(4)(v) of the Act, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant ceases to occupy the building continuously for six months without reasonable cause.

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In so far as the ground of eviction under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act is concerned, it is well settled by various decisions of this Court that if the landlord has discharged the initial burden, it is upto the tenant to lead evidence in the matter to show that he has been conducting business in the premises.

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In Abbas v. Sankaran Namboodiri [1993 (1) KLT

¶121

76] a learned Single Judge of this Court held that, the word 'occupation' is used to denote the tenant's actual physical use of the building either by himself or through his agents or employees

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and legal possession is not sufficient. However, if a landlord

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succeeds in proving that his tenant did not occupy the building

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R.C.REV.NOs.11 & 12 OF 2022

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almost near the period fixed in Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, it may help the court to presume that there could have been cessation of occupation for the statutory period. Such background presumption is not anathematic to the law of evidence. Be that as it may, burden is on the landlord to prove that the tenant ceased to occupy the building for six months. But it is hard to expect a landlord to prove the precise period during which his tenant ceased to occupy the building. However, if the court is satisfied on the evidence and/or with the aid of presumptions that the tenant did not occupy the building for such length of time as would cover the statutory period, then the burden would shift to the tenant to show that he had reasonable cause for such non occupation. But, possession must combine with something more to make it occupation. Legal possession does not by itself constitute occupation.

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In Kayikattil Rajagopalan v. Gopalan [ILR 2004

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(2) Ker. 102] a Division Bench of this Court held that, ‘occupation' in the context of Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act means only physical occupation. When it pertains to a residential building, it means occupation through residence and when it pertains to a

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R.C.REV.NOs.11 & 12 OF 2022

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commercial building, it means occupation by conduct of business. Certainly it is not obligatory that the tenant of a residential building should be present physically in the building all the 24 hours of the day and tenant of a commercial building should be present all the business hours of the day. But in cases pertaining to commercial building like the one let out for business purpose, if it is seen that no business is being carried on in the premises and that the premises are remaining closed, there will be justification to presume that there has been cessation of occupation. On the facts of the case on hand, the Division Bench noticed that, the premises were let out originally for the conduct of grocery business. Admittedly grocery business is no longer being conducted by the tenant. Reasonableness or otherwise of the cause due to which the tenant ceased to occupy the premises is a matter especially within the tenant's knowledge. Once cessation is shown, it is for the tenant to prove that the same has been due to a reasonable cause if he needs to avert eviction. Reasonable cause can never be a cause within the control of the tenant himself.

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In Mathai Antony v. Abraham [2004 (3) KLT 169]

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it was contended by the landlord that intermittent opening of the

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R.C.REV.NOs.11 & 12 OF 2022

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shop or the presence of the tenant in the premises would not show that the tenant is using the premises. The Division bench held that, the word ‘occupy’ occurring in Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act has got different meaning in different context. The meaning of the word ‘occupy’ in the context of Section 11(4)(v) has to be understood in the light of the object and purpose of the Rent Control Act in mind. The rent control legislation is intended to give protection to the tenant, so that there will not be interference with the user of the tenanted premises during the currency of the tenancy. Landlord cannot disturb the possession and enjoyment of the tenanted premises. Legislature has guardedly used the expression ‘occupy’ in Section 11(4)(v) instead of ‘possession’. Occupy in certain context indicates mere physical presence, but in other context actual enjoyment. Occupation includes possession as its primary element, and also includes ‘enjoyment’. The word ‘occupy’ sometimes indicates legal possession in the technical sense; at other times mere physical presence.

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In Mathai Antony the Division bench examined the question as to whether mere ‘physical possession’ would satisfy the word ‘occupy’ within the meaning of Section 11(4)(v) of the

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R.C.REV.NOs.11 & 12 OF 2022

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Act. The Division Bench held that, mere physical possession of premises would not satisfy the meaning of ‘occupation’ under Section 11(4)(v) of the Act. 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. If the landlord could establish that, in a given case, even if the tenant is in physical possession of the premises, the premises is not being used, that is a good ground for eviction under Section 11(4)(v) of the Act. Section 11(4) uses the words ‘put the landlord in possession’ and not ‘occupation’, but Section 11(4)(v) uses the words ‘the tenant ceases to occupy’. In Section 11(4)(v) in the case of landlord the emphasis is on ‘possession’ but in the case of tenant the emphasis is on ‘occupation’. The word ‘occupy’ has a distinct meaning so far as the Rent Act is concerned when pertains to tenant, that is, possession with user.

¶141

In Simon v. Rappai [2008 (2) KHC 863 : 2008 (3)

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KLT 121] a Division Bench of this Court held that, the word 'occupation' is used in Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act to denote the tenant's actual

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R.C.REV.NOs.11 & 12 OF 2022

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physical use of the building either by himself or through his agents or employees and legal possession is not sufficient. However, if a landlord succeeds in proving that his tenant did not occupy the building almost near the period fixed in Section 11(4)(v) of the Act, it may help the court to presume that there could have been cessation of occupation for the statutory period. Such background presumption is not anathematic to the law of evidence. Be that as it may, burden is on the landlord to prove that the tenant ceased to occupy the building for six months. But it is hard to expect a landlord to prove the precise period during which his tenant ceased to occupy the building. However, if the court is satisfied on the evidence and/or with the aid of presumptions that the tenant did not occupy the building for such length of time as would cover the statutory period, then the burden would shift to the tenant to show that he had reasonable cause for such non-occupation. But, possession must combine with something more to make it occupation. Legal possession does not by itself constitute occupation. The Division bench observed that, merely because of the fact that there was a telephone in the room and that the room remained open when the Commissioner visited, it cannot be held that the tenant was

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R.C.REV.NOs.11 & 12 OF 2022

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doing business therein for the statutory period. The burden had clearly been shifted to the tenant in the light of the situation of non-user that is available in relation to the room as reported by the Commissioner. The tenant has failed to adduce any cogent evidence to substantiate his contention that he was conducting business in the schedule room.

¶149

In Dunlop India Limited v. Rahna [2011 (5) SCC 778] a Two-Judge Bench of the Apex Court held that, the word ‘occupy’ used in Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act 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

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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

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R.C.REV.NOs.11 & 12 OF 2022

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proves that there was reasonable cause for his having ceased to

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occupy the building.

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In Mukreerakath Khadeeja and others v. Krishna

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Janaki [2011 (3) KHC 753] a Division Bench of this Court held that, in a case filed under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, the best mode of proof of cessation of occupation is to conduct surprise inspection of the petition schedule building by the commissioner. The salient features noted by the Advocate Commissioner would be of much help to the court to come to a conclusion as to whether the plea of cessation of occupation put forward by the landlord is true. The

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effect of that report cannot be nullified by adopting a stultifying

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strategy of getting a report after several months. Paragraphs 8 and 9 of the said decision read thus;

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“8. It was admitted by PW1 that the petition schedule building was leased out for using it as a godown. But it is important to note that the tenants did not produce any document to show that the fancy Article or other items sold in Mahima Fancy were actually stocked in the petition schedule building. The learned counsel for the revision petitioners has very much stressed on Ext.C2, the second report filed by the Commissioner. But the inspection for second report was conducted about ten months after the

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first inspection. Since the inspection was had about ten months after the appearance of the revision petitioner before the court below Ext.C2 cannot be of much assistance, for, it is easy for any tenant to stage manage things and to get a report regarding the then state of affairs which would nullify the effect of the report obtained first in point of time which alone would reflect on the real state of affairs as on the date of the first inspection by the Advocate Commissioner. In a case filed under Section 11(4)(v), the best mode of proof of cessation of occupation is to conduct surprise inspection of the petition schedule building by the commissioner. The salient features noted by the Advocate Commissioner would be of much help to the court to come to a conclusion as to whether the plea of cessation of occupation put forward by the landlady is true. The effect of that report cannot be nullified by adopting a stultifying strategy of getting a report after several months. Therefore, Ext.C2 is not of any help for the tenants to say that there was no cessation of occupation.

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It was observed by the learned Appellate Authority that the Registration Certificate issued under the Shops and Commercial Establishments Act does not show the petition schedule building as the one used by the tenant as his go down or store room. Referring to the provisions of that Act, the learned Appellate Authority found that 'go down' also would come within the definition of Shop mentioned therein. That apart if actually the petition schedule building was used as a go down there would certainly be a register showing the stock of the Articles. Whenever new items are taken into

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the go down it must find a place in the stock register. Similarly whenever items are taken out for sale to be conducted in Mahima Fancy that must also find a place in the register. Simply because some items were sold to Mahima Fancy by some wholesaler it cannot be said that all those items were taken to the petition schedule building. The learned Appellate Authority has thoroughly scanned the evidence and come to the conclusion that the plea of cessation of occupation put forward by the landladies is true. On a re-appraisal of the evidence we could not find anything wrong in the conclusion arrived at by the learned Appellate Authority so as to upset that finding. There is no illegality, irregularity or impropriety in the finding of the learned Appellate Authority which is the final fact finding authority under the statutory scheme. The revision, therefore, must fail. It is hence, dismissed."

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In Mathai Antony [2004 (3) KLT 169] it was held

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that the word 'occupy' in the context of Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act has to be understood in the light of object and purpose of the Rent Control Act in mind. Further it was held that, the word 'occupy' in certain context indicates mere physical presence but in other context,

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actual enjoyment. In Liji Agencies v. Raghunath [2012 (1)

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KHC 604] it was held that occupation in the context of Section 11(4)(v) of the Act with respect to a commercial building means

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occupation by conducting of business and not a mere physical presence in the shop. In Mahesh Babu v. Kuttiyil Meethal Moidu [2017 (4) KLT 884] a Division Bench of this Court reiterated the law laid down in Mathai Antony and Liji Agencies .

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In Sabeer v. Sabreena [2019 (2) KLT OnLine 2108] a Division Bench of this Court held that, when it is proved by the landlord that the tenant ceased to occupy the building continuously for six months, the burden of proving that there was 'reasonable cause for such cessation' is on the tenant. Reasonable cause is also a question of fact to be decided in the light of the facts proved in the case. No rigid formula can be evolved for proof of 'reasonable cause'. The facts and circumstances of the case, the particular facts with reference to the business activities of the tenant, the nature of the business, the magnitude of the business, the circumstance which led to the cessation of occupation are all relevant in considering whether there was 'reasonable cause'. If the cessation of occupation was due to circumstances beyond the control of the tenant, certainly the courts would be inclined to accept the case of the tenant that cessation of occupation was

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not without reasonable cause. Financial constraint of the tenant

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by itself may not be a sufficient reason to hold that there was

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reasonable cause.

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Insofar as the order of eviction granted under Section 11(4)(v) of the Act is concerned, the Advocate Commissioner, who submitted Exts.C1 and C2 reports, has stated that, at the time of inspection, the shutter of the petition schedule shop room was closed. He noticed rust on the lock and also dust and spider web on the shutter. The tube lights were seen removed and he could not see any name board in front of the said shop room. The electricity meter with respect to consumer No.17743 was not seen in front of the petition schedule shop room. PW2, through whom Ext.X1 supply disconnection notice and Ext.X2 series of application for disconnection were marked, has categorically stated that the consumer number of the tenant was 17743. The evidence of PW2 corroborates the version of the landlord as PW1 that electricity connection to the petition schedule shop room was dismantled. R.C.P.No.9 of 2015 was filed on 23.12.2015. The tenant as RW1 has admitted during cross examination that, from April, 2015 to February, 2016, there was no electricity connection in the petition schedule shop room. From the evidence on record, the authorities below arrived at a conclusion that the tenant ceased to occupy the petition schedule shop room continuously

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for six months without reasonable cause and as such, the landlord is entitled for an order of eviction under Section 11(4)(v) of the Act. The said finding of the authorities below is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, they have committed any manifest error.

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25. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per subsection (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion.

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In Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499] , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease

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and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second

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court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.

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In T. Sivasubramaniam v. Kasinath Pujari [(1999)

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7 SCC 275] the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of

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fact merely because the High Court is not in agreement with the

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findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.

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In Ubaiba v. Damodaran [(1999) 5 SCC 645] the

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Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether

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the relationship of landlord-tenant existed or not. It was urged

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that whether such relationship existed would be a jurisdictional

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fact. Relying on the decision in Rukmini Amma Saradamma it

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was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its

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own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the

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Code of Civil Procedure, 1908 it cannot be equated even with the

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second appellate power conferred on the civil court under the

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Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority.

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On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist.

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In Hindustan Petroleum Corporation Limited v.

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Dilbahar Singh [(2014) 9 SCC 78] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal.

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The Constitution Bench agreed with the view of the Three-Judge

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Bench in Rukmini Amma Saradamma that the word ‘propriety’ does not confer power upon the High Court to re-appreciate

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evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.

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In Thankamony Amma v. Omana Amma [AIR 2019

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SC 3803 : 2019 (4) KHC 412] considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma

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Ubaiba and Dilbahar Singh the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction.

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In Abdul Salam v. Sebastian [2013 (4) KLT 592]

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a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the

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view taken is perverse and the statutory scheme has not been

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kept in mind and if it requires correction, then Court can re-

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appreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been

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arrived at properly on the pleadings and evidence.

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In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164] , a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control

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Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for

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the purpose of ascertaining whether the conclusion arrived at by

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the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available.

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33. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting three months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondentlandlord, considering the situation prevailing in the country on

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account of COVID-19 pandemic, subject to the following conditions:

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(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 petitioner-landlord within three 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;

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(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 two 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;

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(iii) Needless to say, in the event of the respondent-tenant in 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 petitioner-landlord will be at

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liberty to proceed with the execution of the order of eviction.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/- P.G. AJITHKUMAR, JUDGE

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