Jose and Others vs The Damion Subsidies Kuri Ltd.

N.K. Balakrishnan, J.—The tenants are in revision. An order of eviction was passed against them u/s 11(4)(v), on the ground of cessation of occupation. The landlord contended that the tenants ceased to occupy the petition schedule building continuously for more than six months prior to the date of filing of the petition without any reasonable cause. The tenants contended that though formerly a business was conducted by ''Swarna Finance'', subsequently a decision was taken to conduct business by ''Swarna Enterprises'' and that the Managing Partner of the firm was entrusted to collect the amounts due to Swarna Finance and that the tenants did not cease to occupy the petition schedule building.

The Rent Control Petition was filed on 20/10/1998. PW3, the advocate commissioner, inspected the petition schedule building on the same day at 6 PM and filed Ext.C1 report. The advocate commissioner noted certain features suggesting non-user of the building for a quite long time. The commissioner again inspected the building on 23/12/1998 as per the request of the tenants. On that day, the commissioner noted certain bill books, registers, etc. in the petition schedule room. The Rent Control Court after analysing the evidence found that there is sufficient evidence to hold that there was cessation of occupation of the tenanted building for more than six months prior to the date of filing of the petition. Hence ordered eviction.

The learned Appellate Authority after reappreciating the evidence concurred with the view taken by the learned Rent Controller and confirmed the order of eviction passed by the Rent Control Court.

Sri. T.M. Chandran, learned Counsel for the revision Petitioners has argued at length and pointed out that Exts. B1 to B78 produced on behalf of the tenants were not at all considered by the two Courts and so the finding entered by the Courts below is illegal, irregular and improper warranting interference by this Court. It is vehemently argued by Mr. Chandran that the bill books, vouchers, entries in the ledger book, etc. would prove that during the period of six months prior to the date of filing of the rent control petition and also subsequent to the date of filing of the petition there were entries suggesting that the business was conducted in the petition schedule building. It is also argued by the learned Counsel that the advocate commissioner (PW3) was taken to the petition schedule building at 6 PM., i.e. after 5 PM. beyond the normal working hours. It was also contended that though one of the tenants was conducting textile business in a building very near to the petition schedule building, no attempt was made to serve notice on any of the persons conducting the business therein and so Ext. C1 report was obtained by the landlord behind the back of the tenants.

The arguments of the learned Counsel for the revision Petitioners were stoutly resisted by Sri. Jijo Paul, learned Counsel for the Respondent/landlord. The learned Counsel submitted that Ext. X1 letter sent by the tenants to the Assistant Commissioner of Commercial Taxes Department itself would show that Swarna Finance business was discontinued with effect from 31/3/1997. PW5, the Deputy Chairman of the tenants company also has stated that no business was conducted in the petition schedule building from 1-4-1998. It was also contended that the aforesaid room was not having any name board after 1-4-1998. This aspect would strengthen the observation made by the advocate commissioner that no name board showing the name of the business Swarna Enterprises or Swarna Finance was seen on the front wall of the petition schedule building. That also leads to the conclusion that no business was conducted in the petition schedule building during the period relevant for Section 11(4)(v). The commissioner has stated that the front lock of the petition schedule building was seen rusted and dust and co-web were seen on the front door. The commissioner also observed that a portion of the front wooden door was missing. After inspecting the building from outside, the commissioner has opined that the petition schedule room has not been used for a quite long time. It may not be possible for the Advocate Commissioner to state the exact duration when the building was ceased to be occupied. It was stated that one of the tenants was conducting textile business in a nearby building. Therefore, in all probability that tenant would have out of curiosity rushed to petition schedule building to know for what purpose inspection was being conducted. At any rate, the tenants would have come to know of the inspection by the advocate commissioner at least on the next day and so tenants could have filed an application to the Court for issuance of a commission on the next day itself. But, the second inspection was made only on 23/12/1998. The learned Counsel for the revision Petitioners would submit that the first posting of the rent control petition was on 22/12/1998. But the possibility of the tenants coming to know of the inspection of the commissioner earlier was very much there.

Sri. Chandran has also submitted that the learned Appellate Authority has not taken into account the relevancy of Exts. B1 to B78. Sri. Jijo Paul, learned Counsel for the landlord would submit that the bill books and other papers produced as Exts. B1 to B78 were maintained in the textile shop, a portion of which was used for the conduct of silver business by the tenants themselves and so there was no difficulty for them to make available those bill books, etc. in the petition schedule building to stage manage things. That apart, person who was really in charge of the conduct of the business was not examined to prove those documents. Some of the documents were post litum and on that ground also no relevance can be given to those documents. The learned Counsel for the landlord would also submit that if really the manager/managing partner of the business/firm was conducting the business, collecting the amounts from the defaulters/subscribers that fact could have been proved by producing the bank account. That was not done.

The learned Rent Controller has analysed the entire evidence in the correct perspective. On a reappraisal of the evidence, the learned Appellate Authority has rightly accepted the findings rendered by the Rent Control Court. We are reminded ourselves of the contours of our jurisdiction u/s 20 of the Act. There is no illegality, irregularity or improperly about the order of eviction concurrently passed by the Courts below.

The result is that the revision fails and the same will stand dismissed.

Sri. T.M. Chandran, learned Counsel for the revision Petitioners has now made a fervent request to grant one year time to the tenants to surrender the petition schedule building. Though Sri. Jijo Paul has opposed the granting of that much of time to the tenants, we are inclined to grant time to the tenants till 31/12/2011 to surrender the premises subject to the following conditions;

The tenants shall file affidavit before the Rent Control Court or the Execution Court, as the case may be, within three weeks from today undertaking to give peaceful surrender of the petition schedule building on or before 31/12/2011 and to discharge arrears of rent if any within one month from today and undertaking further that occupation charges at the rate of Rs. 1000/- per month will be paid with effect from 1/5/2011. We make it clear that the revision Petitioners/tenants will get benefit of time granted above only if affidavits as directed above are filed and the undertakings therein are honoured.