SASIDHARAN Vs. KADEESUMMA

JUDGEMENT

(1.) THE tenant in RCP.32/07 on the files of the Rent Control Court, Vatakara is in revision against the concurrent findings ordering eviction under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control Act), 1965 (for short 'the Act'). The landlords alleged that, the petition schedule shop room is not being put to any use by the tenant for about two years. Contention was that the respondent, even though he is opening the shop room during the morning, is thereafter working as Collection Agent of a chit fund namely, "Prarthana Chit Funds". There will not be anybody in the shop room till it is being closed by the tenant, and some very old useless Ayurvedic Medicines alone are kept in bottles in the shop room, which are not fit for sale. There is no sale transactions and the shop room is being opened only as a shield against legal proceedings for eviction.

(2.) THE Rent Control Petition was resisted contending that the respondent is doing trade in Ayurvedic medicines in the schedule room after obtaining licence and that the tenant had never kept the room permanently closed. Even though it is admitted that the tenant is working as Collection Agent of a chit fund, it is only for one hour on daily basis and that he is doing business in the scheduled room during the remaining time.

(3.) THE Rent Control Court on evaluating the entire evidence, both oral and documentary, found that there is cessation of occupation by the tenant. It is noticed that, while the Advocate Commissioner visited the schedule room, neither the tenant nor any other person was present in the shop room. The Commissioner noted that only very few bottles of Ayurvedic medicines were seen kept in the 'Almirahs' and all such bottles were very old. Even it is noticed that the date of manufacturing in one of the bottles is 24/07/94, approximately about seven years prior to the date of inspection. Labels affixed on the bottles appeared as too old and he could not notice that no customer is coming to the shop, inspite he spent there about one hour. Even though tenant produced Exts.B1 to B29 documents like licenses of the Municipality, receipts for payment of electricity charges, Building Tax Receipts, Licence for Ayurvedic preparations, registration certificate etc. to show possession of the shop room, the Rent Control Court noticed that no evidence regarding actual conduct of business could be produced from the side of the tenant. Further, it was noticed that Ext.B29 licence for manufacture of Ayurvedic preparations was not seen renewed after 31/03/05. On evaluating the evidences Rent Control Court found that the landlords have sufficiently discharged their burden of proving cessation of occupation and that the tenant had failed in rebutting the same by proving that he is still occupying the building. It is observed that mere physical possession could not be considered as 'occupation', as contemplated under Section 11 (4)(v). In this regard, reliance was placed on the decisions of this Court in Kurian Thomas v. Sreedharan Menon (2004 (3) KLT 326) and Mathai Antony v. Abraham (2004 (3) KLT 169). Accordingly, eviction was ordered under Section 11(4)(v).