BY AD v. K.M.FIROZ

BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON

09.04.2024, ALONG WITH R.C.Rev. NO.99/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R. Nos.98 & 99 of 2019          4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S. TUESDAY, THE 9TH DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 RCREV. NO. 99 OF 2019 AGAINST THE JUDGMENT DATED IN RCA NO.256 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - V, KOZHIKODE) ARISING OUT OF THE ORDER DATED 27.08.2016 IN RCP NO.5 OF 2014 OF RENT CONTROL/PRINCIPAL MUNSIFF-I, KOZHIKODE REVISION PETITIONERS/APPELLANT/RESPONDENT : V.P.MMMED KOYA, AGED 57 YEARS S/O. KUNHAMED, V.P. HOUSE, IRINGALLUR AMSOM, OLAVANNA DESOM, KOZHIKODE TALUK. BY ADVS. K.M.FIROZ SMT.M.SHAJNA RESPONDENT/RESPONDENT/PETITIONER : 1 KOODAKKADAVATH ABDUL KAREEM,AGED 66 YEARS S/O. ABDULLAKUTTY MOULAVI, PALERI AMSOM, CHERIYA R.C.R. Nos.98 & 99 of 2019          5 KUMBALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT- 673508, REPRESENTED BY POWER OF ATTONRNEY HOLDER, MEETHALE KOROMBALLI ABOOBAKCER, AGED 86 YEARS, S/O.MOIDU, AFSAL MANZIL, PANNIYANKARA AMSOM, KOZHIKODE-673003. PADINHAREYIL HANEEFA, AGED 57 YEARS,S/O. KUNHAMMED, CHEMMARRATHUR AMSOM, THODANNUR DESOM, VATAKARA, KOZHIKODE DISTRICT-673104. ATHIKULANGARA KUNHAMMED, AGED 59 YEARS, S/O. POCKER, KOTTAPPALLI AMSOM, PUNGOTTAY DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, REPRESENTED BY POWER OF ATTORNEY - 673542, ATHIKULANGARA KUNHAMMED, AGED 93 YEARS, S/O.MOIDEEN KOTTAPPALLI AMSOM, PYNGOTTAY DESOM, VATAKARA TALUK, KOZHIKODE-673542. ATHIKULANGARA KUNHAMMED, AGED 93 YEARS, S/O.MOIDEEN KOTTAPPALLI AMSOM, PYNGOTTAY DESOM, VATAKARA TALUK, KOZHIKODE-673542. PUTHANPURAYIL SAINABA, AGED 68 YEARS, D/O. CHEKUTTY, AFSAL MANZIL, PANNIYANKARA AMSOM DESOM, KOZHIKODE-673003. KADIYARAKATH KALAMBI, AGED 63 YEARS, D/O.MAMMU, NAGARAM AMSOM DESOM, KOZHIKODE-673314. ADDITIONAL RESPONDENTS IMPLEADED SULEKHA W/O. KOODAKKADAVATH ABDUL KAREEM, PALERI AMSOM, CHERIYA KUMBALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 2 3 4 5 6 7 R.C.R. Nos.98 & 99 of 2019          6 8 9 10 11 SAMEERA D/O. KOODAKKADAVATH ABDUL KAREEM, PALERI AMSOM, CHERIYA KUMBALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673508 SAHALA D/O. KOODAKKADAVATH ABDUL KAREEM, PALERI AMSOM, CHERIYA KUMBALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673508 SANA D/O. KOODAKKADAVATH ABDUL KAREEM, PALERI AMSOM, CHERIYA KUMBALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT -673508 ABDULLA D/O. KOODAKKADAVATH ABDUL KAREEM, PALERI AMSOM, CHERIYA KUMBALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673508 ADDITIONAL RESPONDENTS ARE IMPLEADED AS PER ORDER DATED 9.4.2024 IN I.A. NO.2 OF 2022 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON

09.04.2024, ALONG WITH R.C.Rev. NO.98/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R. Nos.98 & 99 of 2019          7 AMIT RAWAL & EASWARAN S. , JJ. ------------------------- R.C.R. Nos.98 & 99 of 2019 ----------------------------------- Dated this the 9th day of April 2024 ORDER This order of us shall dispose of two R.C.R. Nos.98 and 99 of 2019 preferred by the petitioner/tenant against the concurrent findings of the fact and law rendered by the Rent Controller and the Appellate Authority ordering eviction the scheduled building. The respondents/landlords instituted Rent Control Petitions in the year January 2014 for eviction of two shops let out to the petitioner/tenant, one in 1993 and another in 2009, initially at the rate of Rs.1925/- for the 1st shop, later increased to Rs.2926/- and the other, at the rate of Rs.2925/- for seeking eviction on the ground of ‘ceased to occupy’ under Section 11(4)(iii) and 11(4)(v) of the Kerala Building (Lease and Rent Control) Act’ for the reason that the tenant had shifted his business to another building situated in the same very town, which is just opposite to the building in question. The ground of eviction R.C.R. Nos.98 & 99 of 2019          8 regarding the arrears of rent was not claimed as there were no arrears at the relevant point of time. Immediately assistance of the Commissioner was sought to prima facie establish on record the grounds of eviction. Advocate commissioner submitted his report on

29.1.2014 and as per the inspection report, it was found that the shops are situated near to a private road and they are shut down and locked. Appeared that the shutter was painted long time back. In the presence of the petitioner/tenant, the lock was opened and on opening of the shutter, it was found that it consisted of dust, and cobwebs but only some cartons of paper were found. It is pertinent to mention here that the shops in question were rented out for carrying out the business of retail stationery.

2. The tenant denied the aforementioned allegations and had taken the assistance of the Advocate Commissioner vide inspection report dated 4.7.2016. The said report reflected that there was a lot of other materials other than cartons of paper, kept in the building in order to belie the stand of the landlord. Since the parties were at variance the learned Rent Controller framed the following issues: R.C.R. Nos.98 & 99 of 2019          9

1. Whether the petitioner is entitled to an order under Section 11(4)(iii)?

2. Whether the petitioner is entitled to an order under Section 11(4)(v)?

3. Reliefs and costs?

3.    The landlord examined himself as PW1 and brought on record Exts.A1 and A2 i.e. Rent deed executed between Aboobacker and Mammedkoya and the Licence Agreement executed between Kunhammed and V.P. Muhammed Koya. On the other hand, the respondents examined RW1 and brought on record the following documents. B1

01.02.2011 Trade Licence Fee issued by Corporation of Calicut B2

01.02.2011 Trade Licence Fee issued by Corporation of Calicut B3

22.02.2012 Trade Licence Fee issued by Corporation of Calicut B4

22.02.2012 Trade Licence Fee issued by Corporation of Calicut B5

22.02.2013 Trade Licence Fee issued by Corporation of Calicut B6

22.02.2013 Trade Licence Fee issued by Corporation of Calicut R.C.R. Nos.98 & 99 of 2019          10 B7

19.02.2014 Trade Licence Fee issued by Corporation of Calicut B8

19.02.2014 Trade Licence Fee issued by Corporation of Calicut B9

21.02.2015 Trade Licence Fee issued by Corporation of Calicut B10 23.02.2015 Trade Licence Fee issued by Corporation of Calicut B11 20.02.2016 D/O Renewal receipt issued by Corporation of Calicut B12 20.02.2016 D/O Renewal receipt issued by Corporation of Calicut B13 11.06.2007 Copy of Certificate of Registration issued by Commercial Tax Officer, 2nd Circle, Calicut B14 21.02.2011 Copy of VAT return statement B15 12.05.2012 Copy of VAT return statement B16 15.05.2012 Copy of VAT return statement R.C.R. Nos.98 & 99 of 2019          11 B17 21.02.2014 Copy of VAT return statement B18 27.06.2014 Copy of VAT return statement B19 14.12.2015 Copy of VAT return statement B20 13.08.2016 Copy of VAT return statement

4. The Court Exhibits were marked as C1 to C3(a). C1

29.01.2014 Commissioner’s Report by Adv. Ranjith.    N C1(a) 29.01.2014 Commissioner’s Report by Adv. Ranjith.    N C2

29.01.2014 Commissioner’s Report by Adv. Ranjith.    N C2(a) 29.01.2014 Commissioner’s Report by Adv. Ranjith.    N C3

04.07.2016 Commissioner’s Report by Adv. Mousimi Baby C3(a) 04.07.2016 Commissioner’s Sketch by Adv. Mousimi Baby

5. On examination of evidence the Rent Controller allowed the R.C.R. Nos.98 & 99 of 2019          12 petitions. The appeals preferred against the same were also dismissed.

6. Learned counsel appearing on behalf of the petitioner/tenant submitted that the shops in question are still being used as godowns, therefore, the landlord cannot seek eviction on the ground of ‘ceased to occupy’ as there has not been loss and control/possession of the shops in question. They had been and are in conscious possession of the same and therefore the ground of eviction ibid does not sustain. There is gross illegality and perversity. The court below has failed to refer to the subsequent report of the commissioner dated 4.7.2016 which was contrary to the report dated 29.1.2014 Ext.C1.

7. On the other hand, learned counsel appearing on behalf of the respondents/landlords submitted that this Court while admitting the Rent Control Revisions granted an interim stay, but the petitioner- tenant is in arrears of rent upto April 2014 to the tune of Rs.3,57,399/-. During the period, aforesaid, there was no intention to make payment of rent by any of the modes and means available R.C.R. Nos.98 & 99 of 2019          13 under the sky. Concurrent findings of the fact cannot be interfered with when there is no gross illegality.

8. We have heard the learned counsel for the parties and appraised the paper books.

9. For sustaining an eviction on the ground of “ceased to occupy”, paramount consideration for the landlord is to establish it by seeking the assistance of the Advocate Commissioner. It is in that background the Advocate Commissioner was appointed and submitted a report dated 29.1.2014 in a petition filed on 14.1.2014. It would be worthwhile to extract the contents in Ext.C1 report dated

29.1.2014, which reads as under: REPORT OF INSPECTION filed by Adv. Renjith N., the advocate commissioner appointed in the above matter.

1. In pursuance of the warrant dated 06.01.2014, the above petition schedule was inspected after giving due notice to either sides of the petition. The petition schedule premises were inspected on 06.01.2014. The 2nd plaintiff and the defendant had accepted the notice and the inspection was carried out at the presence of both the parties. A detailed showing the lie of the building is annexed along with this R.C.R. Nos.98 & 99 of 2019          14 report and it is submitted that the same may be taken and read as part of this report.

2. The petition schedule premises is a shop room situated at the south of the Link Road. A private road lies in the north- south of the petition schedule shop room at its eastern side connecting the Link Road with the building. The petition schedule shop room is a multi-storied building with 3 floors and a ground floor, called by the name NEW WAY BUILDING and is having different individual shop rooms and other commercial establishments. The building with the petition schedule shop room is situated at about 10 meters from the Link Road. During the inspection it could be seen that the same has been let out on rent to various tenants including that of defendants. The same has been informed to me by the 2nd plaintiff as well. The said room was identified by me with help of the petition schedule as well as the parties to the petition.

3. The petition schedule shop room is the 1st shop room to situated near to the private road and is having two iron shutters openable at the eastern side and at the northern side. The shutters were seen painted long back and the name of the establishment of the defendant viz V.P. Brothers Paper Mart and the same were seen closed and locked. A notice was seen exhibited on the closed shutters, notifying that the said establishment has been shifted to Premier Buildings. The said R.C.R. Nos.98 & 99 of 2019          15 room was opened by the defendant for inspecting the same and it could be seen that some cartons of papers were stocked in the room. The room is having about 3 meters width and about 4.5 meters of length. The entrance of the building was from its northern side and hence the northern side shutter was opened. The said room was found dusty and cobwebs were seen in the room. However, the floors of the rooms were seen mopped. Papers as well as ink containers were stored/stocked in the room. There were also rusted steel racks/holders seen fixed in the room and said racks were found to be fixed very old. The said room was seen to have partitioned by aluminium fabricated partition. There were also unused tables, table fan, computer table etc found in the room. The electric lights were not functioning properly in the room. The said shop room is shaded in Red in the sketch annexed hereto. The building number of the room affixed by the Corporation of Calicut was seen to be 36/1202. The photographs taken are also annexed hereto along with the bill and CD.

4. The defendant also informed that the adjacent room was also taken him from the plaintiffs on rent for his business purpose and the same being used as their godown. He also stated that he has been remitting the monthly rents duly. The defendant further informed me that it has been two years passed, he shifted to new building. The 2nd plaintiff has informed me that the defendant is not using the said rooms and he is conducting his business at the Premier Buildings R.C.R. Nos.98 & 99 of 2019          16 situated at the north of the Link Road which was also requested to be visited by me. He also handed over me the rent receipt issued to the respondent for the month of November 2013. The defendant also agreed the same to be visited. The said premises were also visited. The said premises was seen to be comparatively big and spacious building having considerable length and width to stock volumes and conduct his business than in the petition schedule premises. The said room is about 7 meters wide and about 17 meters long. The said building has been stocked with paper cartons and there is more space to contain volumes of stock further more.

5. On my further enquiries made at the shops/establishments functioning adjacent to the petition schedule shop room, it was informed to me that Calicut Gas Agencies, functioning the same building a couple of rooms after the petition schedule shop room, has used the petition schedule shop rooms as their office as their building were under renovation. The defendant has consented the Calicut Gas Agencies to occupy petition schedule shop room. The said information was provided to me by Mr.Sunil Kumar S., the Manager of the said Calicut Gas Agency.

10. Concededly, the shops were let out for the purpose of running a business of stationary (retail) whereas the circumstances which emanate on examination of the report is that the shops were R.C.R. Nos.98 & 99 of 2019          17 being used as godown in order to overcome the rigors of eviction as provided in the grounds for eviction under Section 11. We thus do not find any illegality and perversity in the findings rendered for ordering eviction, whereby, the court below has rejected the Commissioner’s report dated 4.7.2016 by accepting the report dated 29.1.2014.

11. No grounds for interference are made out. The Rent Control Revisions are dismissed. The petitioner/tenant is given one months’ time to hand over the vacant possession of the premises and also to clear the arrears of rent which are due from April 2024. Sd/- AMIT RAWAL, JUDGE Sd/- EASWARAN S., JUDGE NS