Shaju vs Karunya Kuries & Pvt. Ltd

Sophy Thomas, J.

The tenants who suffered concurrent orders of eviction under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred as the ‘Act’), are the revision petitioners herein. The landlord filed eviction petition against the tenants, who are the legal heirs of the original tenant, for eviction under Sections 11(3) and 11(4)(v) of the Act. The landlord, a kuri company, wanted to do business in the petition schedule room and moreover, the tenants were not occupying the premises for more than eight months. So, on the ground of bonafide need and cessation of occupation, the eviction petition was filed.

The tenants opposed that petition contending that, the landlord was having other building for carrying out their business, and the tenants never ceased to occupy the tenanted premises. The original tenant Sri.Mathew fell ill due to an eye surgery and so, the shop room could not be opened for few days. The landlord utilised that opportunity to create false evidence, to see them evicted from the schedule premises.

The oral testimony of PW1, PW2, RW1, RW2, Exts.A1 to A10, B1 to B3, X1 and C1 constitute the evidence before the Rent Control Court.

The prayer for eviction under Section 11(3) of the Act was not pressed by the landlord. So, the Rent Control Court was called upon to answer only the prayer under Section 11(4)(v) of the Act. On analysing the facts and evidence, the Rent Control Court found that, the tenants ceased to occupy the tenanted premises, and so they were liable to be evicted. The tenants took the matter in appeal before the Rent Control Appellate Authority as RCA No.72 of 2016. The appellate authority also affirmed the findings of the Rent Control Court, and upheld the eviction ordered under Section 11(4)(v) of the Act. The tenants have preferred this revision under Section 20 of the Act, alleging that the order of eviction is illegal and improper, and hence liable to be set aside.

Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment, warranting interference by this Court.

Heard  learned  counsel  appearing  for  the  revision petitioners and learned counsel appearing for the 1st respondent/landlord.

The tenancy is not in dispute. Though there was a prayer for eviction under Section 11(3) of the Act, it was subsequently not pressed by the landlord. Now, the only question to be answered is whether the order of eviction under Section 11(4)(v) passed by the Rent Control Court, which was upheld by the appellate authority, is liable to be set aside on the ground of any illegality, irregularity or impropriety.

The landlord contended that the tenanted premises were not occupied by the tenants for about eight months without doing any business. In order to substantiate that fact, they relied upon Ext.A10 commission report. Admittedly, that commission was taken out in O.S No.2087 of 2010 filed by the landlord prior to the filing of the RCP. In order to prove that document, the Advocate Commissioner was examined as PW2. In Ext.A10 report dated 14.07.2010, the Commissioner has specifically stated that, he could see grasses sprouted at the premises of the building, termites at the bottom side of the petition schedule room, and cinema posters pasted at the shutter of that room. Moreover, the shutter was found rusted and the upper portion of the wall of the shutter was cracked.

The tenants contended that, since the original tenant Mr.Mathew was laid up due to eye surgery, the shop room could not be opened for few days and that opportunity was misused by the landlord to manipulate evidence. If the shop room was closed only for few days, the symptoms reported by the Commissioner in Ext.A10 report might not have been there. If at all we can say that the cinema poster was pasted on the shutter deliberately, there is no explanation for the grass seen in the premises and termites found at the bottom side of the room. The tenants are also admitting the fact that for few days, they could not open the shop due to illness of their father. But, they did not adduce any evidence to show the actual period during which the shop was kept closed and the reason for such closure with medical evidence. The RCP was filed on 27.11.2010 whereas Ext.A10 report was prepared by the Commissioner on 14.07.2010, after inspecting the premises on 09.07.2010. So, there is ample evidence to show that, as on the date of filing the Rent Control Petition, the tenanted premises was not occupied by the tenants, and no reasonable cause is shown by them, with any reliable evidence. Though the tenants took out a commission in the year 2013 and obtained Ext.C1 report to show that, the tenants are still doing business in the tenanted premises, it was of no avail, as it was after about three years of filing the RCP. Moreover, the Rent Control Court as well as the appellate court found that, in Ext.C1 report, there was no indication of any business being carried out in that room.

The landlord succeeded in proving that the tenants ceased to occupy the schedule room continuously for a period of six months and they failed to show any reasonable cause for such non-occupation. So, we find no illegality or impropriety in the judgment impugned and so, the revision is liable to be dismissed.

Having regard to the facts and circumstances of the case, we deem it appropriate to grant six months time to the tenants to surrender vacant possession of the premises, on condition that they shall file an affidavit before the Rent Control Court on or before 22.05.2023, unconditionally undertaking to vacate the tenanted premises within six months from the date of this order, and agreeing to pay the arrears of rent, if any, within one month from today and continue to pay the monthly rent before the due dates, till they vacate the premises. In case of default of any of these conditions, the landlord is at liberty to initiate execution proceedings.

With these directions, the revision stands dismissed.