Kerala High Court · 2007

RCR 104/07-: 2 :-own occupation was not true or genuine and that, being a wealthy person thelandlord was in possession of several buildings. The tenant also pleaded for thebenefit of the 2nd proviso to Section 11 (3), contending that the cycle repair shop,he was running in the petition schedule building was his sole source of livelihoodand that suitable buildings were not available in the locality. The tenant admittedownership of the building pointed out by the landlord, but contended that thesame is in the possession of his son Arif, who was conducting a business instationery articles. 4. Evidence of PW1, PW2 and RWs1 and 2 were recorded. Exts.A1 toA6 on behalf of the landlord and Exts.B1 and B2 on behalf of the respondentswere marked. The reports submitted by the Advocate Commissioner weremarked as Exts.C1 and C2. X1 and X2 series were also marked. 5. The Rent Control Court by its order dated 04.01.2002 held the groundsunder Section 11(2)(b) and 11(3) against the landlord. However, eviction wasordered under Section 11(4)(iii) of the Act. Aggrieved by the order of eviction,the tenant filed RCA No.82 of 2002 and cross appeal was filed by the landlord,against the order in so far as it declined eviction under Sections 11(2)(b) and 11(3) of the Act. The Appellate Authority vide judgment dated 15.12.2006 rejectedthe cross appeal filed by the landlord and upholding the eviction ordered underSection 11(4)((iii), dismissed the Rent Control Appeal filed by the tenant. It isaggrieved by the concurrent orders of eviction under Section 11(4)(iii) of the Act,that the tenant has filed this revision before us. 6. We heard the counsel for the Revision Petitioner and the counsel forthe respondent landlord who entered appearance on caveat and considered theirsubmissions.7. The only issue that need our consideration is the correctness of theorder passed by the Rent Control Court under Section 11(4)(iii) of the Act, and RCR 104/07-: 3 :-affirmed by the Rent Control Appellate Authority. It is the admitted fact that thepetitioner herein own two rooms at South Bazar in Kannur Municipalitynumbered as SB/IV/86 and SB/IV/87 respectively and Ext.A3 is the certified copyof the Jenmon deed of 1971. According to the landlord these rooms are in thepossession of the tenant and kept locked and are reasonably sufficient for theirrequirements of the tenant. While the tenant contended that the rooms are inthe possession of his son Arif and that he was carrying on the business instationery articles in the building. As rightly pointed out by the Rent ControlCourt the crucial time with reference to which the possession and vacancy of thebuilding is to be assessed, is the point of time when the landlord demandedvacant possession from his tenant, viz., 10.04.1991. 8. While examining this issue as stated above, the Rent Control Court hasmade reference to Ext.C1 report of the Commissioner, who was also examinedas PW2. In his report as well as in the evidence, the Commissioner stated thatat the time of inspection the rooms were locked. He had an inside view of therooms through the gap in between the wooden planks, which also gave him theimpression that the rooms were kept idle. The tenant admitted that at the time ofinspection the room was closed, but his explanation was that Arif, his son, whowas also examined as RW2, had closed the shop at 12.00 noon in order toattend Friday prayers. This was put to the Commissioner when he was crossexamined but the answer was in the negative and stating that from theappearance of the building and the attendant circumstances the suggestion wasuntrue. The landlord had also produced Ext.A4 building tax assessment registerfor the period from 1985-86 to 1994-95. Rent Control Court has stated that asper Ext.A4 during the period upto 1991, the room was locked and for the latterperiod, the entry was that the room was vacant. Based on the evidenceavailable as above, the Rent Control Court found that at the relevant time, theroom was vacant and presumed that the owner was in possession in thebuilding. The Rent Control Court also overruled the objection of the tenant thatthe Commissioner had inspected the building of the tenant without serving notice RCR 104/07-: 4 :-on the tenant, taking into account the fact that the Commissioner has beenexamined in Court and cross examined on behalf of the tenant. 9. Turning to the evidence that was let in by the tenant, the court madedetailed reference to the licenses as produced Ext.X1 series and professionaltax receipt, X2 series. Although, the genuineness of these documents weredisputed by the landlord, that was overruled by the Rent Control Court.However, in the absence of any corroborative evidence, the court placed relianceon the report of Commissioner and Ext.A4 and declined to accept the contentionof the tenant that the building was in the actual occupation of RW2, Sri.Arif. Thecourt has also made reference to the 2nd inspection of the Commissioner on02.03.1993, almost after an year of the first inspection. Although on thisoccasion the Commissioner found that a stationery shop was being conductedby RW2, the court did not attach any credence to the 2nd report, in view of thelong interval between the inspections. 10. Thereafter, the question as to whether the building owned by thetenant was reasonably sufficient for his requirements was also examined by theRent Control Court. On evidence of the tenant itself and the measurement inExt.C1 Report, it was found that the building was more spacious than the petitionscheduled room, and that the distance between the two is below one kilometer.The building was also found to be in a commercially important place of the samelocality. Accordingly it was held by the Court that the room was reasonablysufficient for his requirement. 11. The Rent Control Appellate Authority affirmed the finding of the RentControl Court, making particular reference to Ext.C1 report of the Commissionerand his evidence as PW2. It held that on evidence the fact that the tenant wasin possession of the building was proved. On the basis of the admission ofRW1, the tenant himself, that the building owned by him is larger than thepetition scheduled building and making reference to the measurements of the RCR 104/07-: 5 :-room provided by the Commissioner in his report, the Appellate Authority agreedwith the findings of the Rent Control Court that the room was sufficient for doingbusiness of the tenant. 12. According to us the evidence and findings of the Rent Control Courtand the Appellate Authority, do not suffer from any irregularity. The findings areconsistent with the evidence available and do not call for any interference. In the result the revision petition is dismissed without any order as tocosts. P.R.Raman,Judge.Antony DominicJudge.ess 9/4