Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 73 (KER)

Jayakumar v. Vattakkavil Sanoop

2019-01-22

ANNIE JOHN, K HARILAL

body2019
JUDGMENT : K. HARILAL, J. 1. The revision petitioner is the tenant against whom an order of eviction has been passed by the Rent Control Court, under section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act), which stands confirmed in appeal by the impugned judgment passed by the Appellate Authority. The legality and propriety of the concurrent findings, whereby the Rent Control Court passed the order of eviction and the Appellate Authority affirmed the same, are challenged in this revision. (The parties are referred to as in the rent control petition.) 2. According to the petitioner, he purchased the petition schedule building on 1.1.2014 and when he purchased the petition schedule shop room, it was kept closed without any kind of business therein. He purchased the shop room with an intention to start a training centre for computer hardware programme. According to the petitioner, the petition schedule shop room was kept closed from 1.8.2013 onwards without conducting any business by the respondent, who took the petition schedule building on lease from the previous owner of the building. Hence he filed the rent control petition on 24.3.2014, seeking an order of eviction under section 11(4)(v) of the Act. 3. The respondent resisted the claim for eviction, contending that the cessation of occupation alleged against him is not true or correct. He contended that the rent control petition itself was a premature one, as the statutory period of six months after cessation of occupation was not available to the petitioner. He has purchased the petition schedule shop room about three months back only. The respondent further contended that he was laid up due to injuries sustained in a motor accident and the shop room remained closed only for one month. While he was making preparations to reopen the shop, the petitioner instituted the rent control petition and a commission was taken to inspect the tenanted premises without notice to him. Thus, the respondent contended that the rent control petition itself is not maintainable and there is no evidence to prove that he ceased to occupy the tenanted premises for the last six months, immediately before the institution of the rent control petition, without reasonable cause. 4. Thus, the respondent contended that the rent control petition itself is not maintainable and there is no evidence to prove that he ceased to occupy the tenanted premises for the last six months, immediately before the institution of the rent control petition, without reasonable cause. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the petitioner has succeeded in proving that the respondent ceased to occupy the petition schedule shop room for six months without reasonable cause. 5. Heard the learned counsel for the petitioner/landlord and the learned counsel for the respondent/tenant. 6. Learned counsel for the respondent mainly canvassed the point that the rent control petition itself was not maintainable, as the petitioner has purchased the property about three months before the institution of the rent control petition. So, the statutory period of six months after cessation of occupation, as contemplated under section 11(4)(v) of the Act, was not available to the petitioner, even if the respondent ceased to occupy the tenanted premises before the sale to him. So also, it is contended that the respondent has proved the occupation in the building by producing Exts.B1 to B4 and the oral evidence of RW1; but the courts below failed to appreciate the aforesaid evidence in its correct perspective. 7. Per contra, the learned counsel for the petitioner/landlord advanced arguments, to justify the concurrent findings of the courts below that the rent control petition is maintainable, though he purchased the petition schedule shop room three months back only. According to the learned counsel for the petitioner, the respondent has ceased to occupy the tenanted premises from 1st August, 2013 and he has purchased the petition schedule shop room on 1.1.2014, when the statutory period has already begun to run. Further, it is contended that by the transfer, the transferee would get all the rights and liabilities of the transferor. Therefore, the transferee is entitled to sue for eviction under section 11(4)(v) of the Act, if the cessation of occupation has begun to run, before the transfer to him and finished after the transfer. In short, the transfer effected during the period of cessation will not affect the cause of action. 8. Therefore, the transferee is entitled to sue for eviction under section 11(4)(v) of the Act, if the cessation of occupation has begun to run, before the transfer to him and finished after the transfer. In short, the transfer effected during the period of cessation will not affect the cause of action. 8. In view of the arguments at the bar, the first point to be considered is, where the tenant has ceased to occupy the tenanted building and that building has been transferred before the expiry of six months, after the commencement of cessation, whether the transferee landlord will get the period of cessation, under the transfer or landlord also, for reckoning the statutory period of six months to sue against the tenant, seeking eviction under section 11(4)(v) of the Act. Put it differently, whether the period of cessation would run continuously, notwithstanding the transfer of the tenanted premises. 9. On a survey of various provisions under the Act, we find that section 11(3) of the Act is the only provision, which requires one year period after the transfer of the tenanted building to sue for eviction. None of the other provisions, which grants the right of eviction to the landlord, provides any immunity period in favour of the tenant from eviction proceedings, in case of transfer of ownership of the tenanted premises. Therefore, we find that there is no statutory bar against the institution of a rent control petition before the expiry of six months time stipulated under section 11(4)(v) of the Act, after the transfer of the tenanted premises. 10. Then, the question is, what is the legal effect and impact of the transfer on the tenanted building, during the period of cessation of occupation, before the expiry of six months, after the commencement of cessation. On an analysis of section 11(4)(v) of the Act, explicitly, we understand that the genesis, from which the cause of action, under section 11(4)(v) of the Act arises is the non-usage of the tenanted building. This provision postulates that where the building is not required for the tenant and he keeps it in idle or vacant, the landlord is entitled to get back the building. Unlike the bona fide need of the landlord, the right to evict the tenant, under section 11(4)(v) of the Act, is not a personal right conferred to the landlord, in view of his need or any circumstances. Unlike the bona fide need of the landlord, the right to evict the tenant, under section 11(4)(v) of the Act, is not a personal right conferred to the landlord, in view of his need or any circumstances. On the other hand, the cause of action arises from the non-usage of the tenanted building only. The transfer of ownership during the period of cessation does not make any change or impact to cessation of occupation. So, the cause of action, which arose from the non-usage of the building, under the ownership of the transferor loandlord, would run along with the building, notwithstanding the transfer of building. Consequently, the transferee landlord will get that part of the cause of action also, which has already begun to run, along with the building under the transferor landlord. 11. The above view is supported by the absence of any statutory bar against the institution of the rent control petition for eviction before the expiry of six months after the transfer. So, it can be legally and reasonably presumed that, unlike section 11(3) of the Act, the legislature has consciously omitted such a bar against the institution of the rent control petition, under section 11(4)(v) of the Act, before the expiry of six month, after the transfer. 12. In the above view, we hold that where the tenant has ceased to occupy the tenanted building and that building has been transferred, before the expiry of six months, after the commencement of cessation, the transferee landlord will get the period of cessation under the transferor landlord also, for reckoning the statutory period of six months, to sue against the tenant, seeking an order of eviction under section 11(4)(v) of the Act. If once cause of action has begun to run, it will continue to run, notwithstanding the transfer. In the above view, we find that the rent control petition was maintainable and the courts below have rightly applied the law on the point. 13. Coming to the merits of the case, being a revision filed under section 20 of the Act, we are not inclined to re- appreciate the entire evidence on record. The scope and extent of interference are confined to the legality, propriety and regularity of the concurrent findings of the courts below only. 14. It is trite law that the initial burden of proof under section 11(4)(v) of the Act is on the landlord. The scope and extent of interference are confined to the legality, propriety and regularity of the concurrent findings of the courts below only. 14. It is trite law that the initial burden of proof under section 11(4)(v) of the Act is on the landlord. In the instant case, the petitioner has discharged the initial burden of proof by taking out a commission, to ascertain the occupancy position of the tenanted premises on the date of institution of the suit. In Ext.C1 commission report, the commissioner has specifically stated that there was no sign of any live business and there was no electric connection in the petition schedule shop room at the time of his inspection. The commissioner was examined as PW2 and according to him, the petition schedule shop room was closed for a long time. The room was locked and the same was removed. Thereafter, a new lock was used to lock the shop room after inspection, as the lock was very old and not working. However, the petitioner has produced Ext.A2 issued by the Electricity Board stating that there was no electricity connection to the tenanted premises for several months. 15. In view of Ext.C1 commission report, we are of the opinion that the courts below are justified in finding that the landlord has discharged the initial burden of proof. Did the respondent succeed in rebutting the evidence adduced by the petitioner? 16. As rightly observed by the courts below, no evidence had been adduced to prove that he had been conducting business in the tenanted premises for the last six months. When he was examined as RW1 he admitted that he was in possession of documents to prove the purchase of commodities for his business in the tenanted building. But, no document was produced to prove the purchase the purchase of any commodity to his shop or sales of any commodity from his shop. So, an adverse inference also can be drawn against the respondent under section 11(4)(g) of the Indian Evidence Act, for the non-production of documentary evidence to prove the conduct of business in the tenanted premises. It is true that the respondent has produced Exts.B1 to B3, to substantiate his contention that he met with an accident and laid up for one month and during that period he was constrained to close the shop. It is true that the respondent has produced Exts.B1 to B3, to substantiate his contention that he met with an accident and laid up for one month and during that period he was constrained to close the shop. After analyzing Exts.B1 to B3(a) medical records, the courts below concurrently observed that no reliance can be placed on those documents, to prove that he met with an accident and was laid up for one month. 17. We have meticulously examined Exts.B1 to B3 and we find that Exts.B1 to B3 are outpatient tickets and receipts, which would show that he was an outpatient in the hospital on 10.2.2014. Thus, the respondent has miserably failed to prove the conduct of business in the tenanted premises, for the last six months, immediately before the institution of the rent control petition. We are of the opinion that the courts below have appreciated the evidence on record in its correct perspective and there is no illegality or impropriety, warranting interference of this court in exercise of revisional jurisdiction. The revision is hence dismissed. 18. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given six months' time to remove the furniture and dead stock, if any, from the petition schedule building, on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today. (2) The tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order.