RAJAGOPALAN Vs. GOPALAN
LAWS(KER)-2003-10-87
HIGH COURT OF KERALA
Decided on October 14,2003

RAJAGOPALAN Appellant
VERSUS
GOPALAN Respondents

JUDGEMENT

- (1.) The Order of the Court was pronounced by Pius C. Kuriakose, J. - The landlord is the revision petitioner. Parties will be referred to as the landlord and the tenant respectively. Eviction was sought for on the grounds of arrears of rent [S.11(2) (&)], bona fide own occupation [S.11(3)] and cessation of occupation [S.11(4)(v)] of the Rent Control Act. The Rent Control Court did not grant eviction on the ground of arrears of rent since before the commencement of trial, the tenant discharged the entire arrears as claimed by the landlord. That court did not grant eviction under S.11(3) either. The only ground which survives is S.11(4)(v) on which the Rent Control Court ordered eviction. That order was set aside by the appellate authority necessitating the present revision.
(2.) We need refer to the pleadings so far as they pertain to the ground under S.11(4)(v) only. The allegation was that 1 1/2 years prior to the institution of the R.C.P. which was filed on 24th September 1991, the tenant ceased to occupy the building without reasonable cause. The tenant answered those allegations by contending that he never ceased to occupy the building; that he who used to conduct grocery business originally is presently conducting business in coconuts and cigars and is eking out his livelihood on the income derived from that business. Noticing that an Advocate Commissioner had already reported the building to be kept closed, he contended that he has several cardiac ailments and that on the day of the Commissioner's visit, he had been to Kozhikode to meet his Cardiologist.
(3.) The evidence so far as the same pertains to ground under S.11(4)(v) were the oral testimonies of P.W. 1 the petitioner/the landlord, P.W. 2 and P.W. 3 - Two witnesses including the Advocate Commissioner, R.W. 1, the tenant, Ext. A-2 - Lawyer notice, Ext. A-4 - Assessment Register relating to the building, Exts. B-1 and B-2 licences issued by the Malabar Marketing Company, Exts. B-3 and B-4 series documents pertaining to medical treatment undertaken by the tenant. The Rent Control Court relied very much on the Advocate Commissioner's report Ext. C-1 under which it was reported that the premises were remaining closed and that cobwebs were seen inside the room in its upper portion; the testimony of witness, P.W. 3 by name Choyi; Ext. A-4 assessment register relating to the period 1991-92; the circumstance that Exts. B-1 and B-2 did not relate to the petition schedule building; non production of other document which would have revealed the actual conduct of business by the tenant passed the eviction order under S.11(4)(v). The appellate authority interfered with the order taking the view that it was the landlord's burden to establish that the tenant has ceased to occupy the building continuously for six months immediately prior to the filing of the application without reasonable cause and that the landlord has not discharged that burden. According to the appellate authority, the landlord was not definite as to the day from which the cessation started. The testimony of P. W. 3, Choyi did not inspire confidence in the mind of the appellate authority. According to that authority, the Commissioner's report will not prove cessation of occupation during the statutory period and Ext. A-4 register also pertains to the period from 1st April 1990 till 31st March 1991 which takes in only a portion of the crucial period of six months immediately prior to the filing of the rent control petition. Though the appellate authority practically concurred with the Rent Control Court regarding Exts.B-1. B-2, B-3 and B-4 documents produced by the tenant, that authority observed that the blemishes in the tenant's evidence will not do away with the landlord's burden of establishing his case. Accordingly, allowing the appeal, the appellate authority dismissed the rent control petition.;


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