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2003 DIGILAW 643 (KER)

Kayikattil Rajagopalan v. Valiyaparambath Gopalan

2003-10-14

K.S.RADHAKRISHNAN, PIUS C.KURIAKOSE

body2003
Judgment :- Pius C. Kuriakose, J. The landlord is the revision petitioner. Parties will be referred to as the landlord and the tenant respectively. Eviction was sought for on the grounds of arrears of rent [Section 11(2)(b)], bona fide own occupation {Section 11(3) and cessation of occupation {Section 11(4)(v)} of the rent Control Act. The Rent Control Court did not grant eviction on the ground of arrears of rent since before the commencement of trial, the tenant discharged the entire arrears as claimed by the landlord. That court did not grant eviction under Section 11(3) either. The only ground which survives is Section 11(4)(v) on which the Rent Control Court ordered eviction. That order was set aside by the Appellate Authority necessitating the present revision. 2. We need refer to the pleadings so far as they pertain to the ground under Section 11(4)(v) only. The allegation was that 1½ years prior to the institution of the R.C.P. which was filed on 24.9.1991, the tenant ceased to occupy the building without reasonable cause. The tenant answered those allegations by contending that he never ceased to occupy the building; that he who used to conduct grocery business originally is presently conducting business in coconuts and cigars and is a king out his livelihood on the income derived from that business. Noticing that an Advocate Commissioner had already reported the building to be kept closed, he contended that he has several cardiac ailments and that on the day of the commissioner’s visit, he had been to kozhikode to meet his Cardiologist. 3. The evidence so far as the same pertains to ground under Section 11(4)(v) were the oral testimonies of P.W.1 the petitioner/the landlord, P.W.2 and P.W.3 – two witnesses including the Advocate Commissioner, R.W.1, the tenant, Ext.A2 – Lawyer notice, Ext.A4 – Assessment Register relating to the building, Exts.B1 and B2 licences issued by the Malabar Marketing Company, Ests.B3 and B4 series documents pertaining to medical treatment undertaken by the tenant. The Rent Control Court relied very much on the Advocate Commissioner’s report Ext.C1 under which it was reported that the premises were remaining closed and that cobwebs were seen inside the room in its upper portion; the testimony of witness, P.W.3 by name Choyi; ExtA4 assessment register relating to the period 1991-92; the circumstance that Exts.B1 and B2 did not relate to the petition schedule building; non-production of other document which would have revealed the actual conduct of business by the tenant passed the eviction order under Section 11(4)(v). The appellate authority interfered with the order taking the view that it was the landlord’s burden to establish that the tenant has ceased to occupy the building continuously for six months immediately prior to the filing of the application without reasonable cause and that the landlord has not discharged that burden. According to the Appellate Authority, the landlord was not definite as to the day from which the cessation started. The testimony of P.W.3, Choyi did not inspire confidence in the mind of the Appellate Authority. According to that authority, the Commissioner’s report will not prove cessation of occupation during the statutory period and Ext.A4 register also pertains to the period from 1.4.1990 till 31.3.1991 which takes in only a portion of the crucial period of six months immediately prior to the filing of the rent control petition. Though the appellate authority practically concurred with the rent control court regarding Exts.B1, B2, B3 and B4 documents produced by the tenant, that authority observed that the blemishes in the tenant’s evidence will not do away with the landlord’s burden of establishing his case. Accordingly, allowing the appeal, the appellate authority dismissed the rent control petition. 4. Heard Sri. Pulikool Abubacker, Advocate for the revision petitioner/landlord and Sri. R.M. Muraleedharan, Advocate for the respondent. The learned counsel supplied us with copies of all relevant items of evidence and the pleadings. 5. Sri.Pulikool Abubacker submitted that the appellate authority had no valid reasons to vacate the findings of the Rent Control Court and it was on purely technical reasons that the appellate authority interfered with the findings of the Rent Control Court. The learned counsel supplied us with copies of all relevant items of evidence and the pleadings. 5. Sri.Pulikool Abubacker submitted that the appellate authority had no valid reasons to vacate the findings of the Rent Control Court and it was on purely technical reasons that the appellate authority interfered with the findings of the Rent Control Court. Learned counsel submitted that Ext.A4 was a document with considerable probative value in proceedings under the Rent Control Act and the landlord did not apply for the assessment register pertaining to the remaining quinquennial period of 1990-95 was only that those periods are obviously periods subsequent to the filing of the R.C.P. Counsel further submitted that the question whether the tenant was actually conducting business in the room taken by him on lease was a question which could be proved by the tenant himself by adducing documentary evidence of better quality than Exts.B1 and B2. Exts.B1 and B2, counsel pointed out are not trade licences issued by the local authority; instead they are licences issued by some private organization where the tenant’s wife was an employee. The non-production of the best evidence, according to counsel should have persuaded the Rent Control Court to draw requisite adverse inferences against the tenant. 6. Sri.R.K.Muraleedharan, per contra, invited our attention to the decision of a learned Single Judge of this Court reported in Cherian v. Jose (1980 KLT 661) and to the decision of this Court in Abbas v. Sankaran Namboodiri (1993)1) KLT 76) and to that of the Supreme Court in Babu Ram Gopal v. Mathra Dass {(1990)2 SCC 279}. The crucial period, according to the counsel was the six months period immediately prior to the filing of the rent control petition and evidence in this case will certainly fall short of holding that during the said period of six months, the tenant did not occupy the premises and that too without reasonable cause. 7. We have no difficulty to agree with the learned counsel for the landlord who argues that occupation in the context of Section 11(4)(v) means only physical occupation. When it pertains to a residential building, it means occupation through residence and when it pertains to a commercial building, it means occupation by conduct of business. 7. We have no difficulty to agree with the learned counsel for the landlord who argues that occupation in the context of Section 11(4)(v) means only physical occupation. When it pertains to a residential building, it means occupation through residence and when it pertains to a 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 present one let out for business purpose, if it is seen that no business are remaining closed, there will be justification to presume that there has been cessation of occupation. In the instant case, the premises were let out originally for the conduct of grocery business. Admittedly grocery business is no longer being conducted by the tenant. According to him, he has stopped the grocery business and has gone in for a new line of business in coconuts and cigars. The Rent Control Appellate Authority’s view that the landlord has the burden to show that there has been cessation continuously for six months or more upto the date of filing of the application is certainly right. A learned Single Judge of this Court in Cherian v. Jose (supra) has taken the view that cessation of occupation to constitute a ground under Section 11(4)(v) for a period of six months continuously should continue upto the date of filing of the rent control petition. The learned Judge interpreted Section 11(4)(v) referring to the tense in which the expression ‘ceases’ is used relying on Maxwell. The learned Judge’s view is now supported by the decision of the Supreme Court in Babu Ram Gopal v. Mathra Dass (supra) which was a case under Section 13(2)(v) of East Punjab Urban Rent Restriction Act, 1949. The expression used in that Statute are ‘the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause.’ Thus even in respect of a Statute which employs the present perfect tense, the Supreme Court has taken the view that cessation should continue upto the date of filing of the application. The expression used in that Statute are ‘the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause.’ Thus even in respect of a Statute which employs the present perfect tense, the Supreme Court has taken the view that cessation should continue upto the date of filing of the application. We therefore approve the view of the learned Judge in Cherian v. Jose (1980 KLT 661) that cessation for the purposes of Section 11(4)(v) must continue upto the date of filing of the rent control petition. However, the court shall not take a pedantic approach regarding this aspect. We notice that a good number of cases where there has been actual cessation for more than the statutory period, eviction has been refused either on the short reason that the landlord did not take out a commission to reveal the state of affairs obtaining as on the date of the application or on the reason that the Commissioner appointed by the court at the time of commencement of the rent control proceedings did not report positively regarding the actual cessation. It should be remembered that the enquiry expected of the Rent Control Courts is a realistic and objective one and conclusions are to be arrived at by them on the basis of the evidence on record including circumstantial evidence and with the aid of presumptions available in law. Artificial evidence brought on record by either sides should be sifted and eschewed. As the Supreme Court has indicated in Babu Ram Gopal v. Mathra Dass (supra) itself that the legislative intendment behind provisions like Section 13(2)(v) of the East Punjab Urban Rent Restriction Act providing for eviction on the ground of cessation of occupation is to ensure that the tenant who ceases to occupy the building without reasonable cause should give way for other needy tenants in these days of accommodation shortage. Even as we approve 1980 KLT 661 to the extent it lays down that what is required is continuous cessation upto the date of filing of the R.C.P., we do not agree with the learned Judge’s view that it is the landlord’s burden to establish that cessation has been without reasonable cause. 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. 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. We will mention that reasonable cause can never be a cause within the control of the tenant himself. 8. We are unable to support the reasons stated by the Rent Control Appellate Authority for interfering with the eviction order passed by the Rent Control Court. Ext.A4, property tax assessment register is a document having considerable evidentiary value in view of Section 26 of the Rent Control Act. No dependable counter evidence was adduced by the tenant in the context of Section 11(4)(v) which says that the building remained vacant. Ext.A4 is ignored by the Appellate Authority for two reasons: One is that it pertains to 1990-91 period taking in only 4 months out of the statutory six months period prior to the filing of the rent control petition. The second reason is that though assessment is for a quinquennial period, Ext.A4 pertains to only one year. The reasons as to why the landlord did not apply for the assessment extract pertaining to the entire 5 year period from 1990-95 are not far to seek. 1991-92, 1992-93, 1993-94 and 1994-95 were all years to come when the R.C.P. was filed and were obviously not relevant. Obtainment of certified extracts from local authority for 5 years period will be costlier also. Sri.Pulikool Abubacker has during the course of hearing shown us certified copy of the assessment register pertaining to the entire quinquennial period from 1990-95 which also reveals that the vacancy continues. It appears that the learned District Judge was unduly obsessed with the question of burden of proof in cases for eviction under Section 11(4)(v). Appreciation of Ext.C1 report by the learned District Judge has not been in a realistic manner. The Commissioner did report that the room remained locked up and there were cobwebs in the upper portions of the walls of the rooms. Appreciation of Ext.C1 report by the learned District Judge has not been in a realistic manner. The Commissioner did report that the room remained locked up and there were cobwebs in the upper portions of the walls of the rooms. Instead of taking the presence of cobwebs in the room as a circumstance probabilising the landlord’s case of non-occupation or non-user, what the learned District Judge has done is to highlight the Commissioner’s report that cobwebs were not seen on the keyholes, which according to the learned District Judge “indicates that the shop room was being opened”. So also, the learned District Judge has interpreted the Commissioner’s positive report that cobwebs are seen in the upper part of the shop room meaning that “in the other part of the shoproom, the Commissioner was not able to find out any such cobwebs”. We notice that not even a single question was asked to the Commissioner in the context of these cobwebs and also regarding the Commissioner’s report that the chayippu thatched with cudgen leaves constituting the veranda portion of the building has been completely ruined. The inability of the tenant to produce trade licences issued by the local authority in the context of trade in the premises should have been taken note of by the appellate authority as a circumstance of immense consequence. Interestingly, the tenant produced licences issued by a local private marketing agency, employer’s of his own wife – very poor substitutes for the statutory licences. Actual conduct or otherwise of business in the premise is an aspect which was capable of being proved by the tenant through documentary evidence either in the nature of accounts pertaining to the business or correspondence received in the business premises, receipts pertaining to payment of profession tax and other documents originating from statutory or like authorities or institutions. The nonproduction of any such evidence ought to have persuaded the appellate authority to draw adverse inferences against the tenant. 9. Another circumstances probabilising the landlord’s version of tenant’s cessation of occupation of the tenanted building, it appears has not been taken into account either by the Rent Control Court or by the Appellate Authority. The contract rent payable by the tenant is partly. Even that partly rent was kept in arrears and was discharged only at the stage of trial for the purpose of avoiding an eviction under Section 11(2)(b). The contract rent payable by the tenant is partly. Even that partly rent was kept in arrears and was discharged only at the stage of trial for the purpose of avoiding an eviction under Section 11(2)(b). The circumstances that the tenant had kept even the paltry rent payable by him for the tenanted premises along with the other circumstances brought out in this case will indicate that the tenant either was not occupying the premise or was not very keep on occupying the same. Though in revision we are not expected to make denovo reappraisal of the evidence, in the instant case, we have reappreciated the entire evidence since the findings of the authorities below have been divergent. The result of such reappreciation is that we feel that the case of the landlord in the context of Section 11(4)(v) is much more probable than that of the tenant and the evidence brought on record by the landlord was sufficient enough to shift the burden over to the tenant and also that the tenant has not discharged that burden by adducing satisfactory rebuttable evidence including evidence which was available at his disposal. The result is that we set aside the judgment passed by the Rent Control Appellate Authority and restore that of the Rent Control Court. The R.C.P. stands allowed under Section 11(4)(v). The parties will suffer their costs. The tenant will vacate the building by 31.12.2003.