R. JAYAKUMAR Vs. P.M. MATHEW

JUDGEMENT

(1.) THE tenant who has been ordered to be evicted concurrently on the ground of cessation of occupation by the Rent Control Court and the Appellate Authority challenges in this revision under Section 20, the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court under Section 11(4)(v). In fact the landlord had invoked two grounds viz. the ground of bona fide need for own occupation under Section 11(3) apart from the ground under Section 11(4)(v). The learned Rent Control Court on evaluating the evidence held that both the eviction grounds stood established and ordered eviction on the ground under Section 11(3) as well as under Section 11(4)(v). The impugned judgment has been passed by the Appellate Authority considering an appeal preferred by the revision petitioner against the Rent Control Court's order. The eviction order which had been passed by the Rent Control Court under Section 11(3) has been set aside. In this revision the revision petitioner urges that the finding by the Rent Control Appellate Authority that the eviction ground under Section 11(4)(v) stands established is illegal, irregular and improper.

(2.) WE have heard the submissions of Sri. J. Omprakash, the learned counsel for the revision petitioner. Sri. Omprakash submitted that in the absence of positive evidence adduced on the side of the landlord to show that the tenant ceased to occupy the building continuously without reasonable cause within a period of six months immediately prior to the filing of the RCP the eviction order presently passed by the two authorities concurrent though the same be is bad in law. The learned counsel drew our attention to the evidence adduced by the landlord as PW1, particularly what he stated in cross examination. Counsel submitted that PW1 had admitted in cross examination that the landlord had collected rent from the revision petitioner by coming to the petition schedule premises when the revision petitioner was conducting business. This admission according to Sri. Omprakash will cut the very root of the landlord's case that the revision petitioner did not conduct business continuously for more than six months. Sri. Omprakash also submitted that Ext.A2 statement submitted by the revision petitioner before the Income Tax Authority which is to the effect that the revision petitioner is not conducting any business should have been understood as a statement made with reference to the period when the statement was filed that was in March, 2005. The relevant period is the period from June, 2006 to December 2006 i.e. the period of six months prior to the filing of the application. The inferences and presumptions drawn by the statutory authorities on the basis of Ext.A2 are improper. We have given our anxious consideration to all the submissions of Sri. Omprakash. We have carefully gone through the impugned judgment passed by the Appellate Authority and the order of the Rent Control Court. Even though within the contours of our jurisdiction under Section 20 there is not much scope for re -appraising the evidence in deference to the persuasive submissions of Sri. Omprakash, we have made a quick survey of the pleadings raised by the parties - the relevant items of evidence, particularly Ext.C1 Commissioner's Report, Ext.C2 sketch, Ext.A1 file containing Ext.A2 statement submitted by the revision petitioner before the Income Tax Officer, Alappuzha and also PW1's evidence. The only question which we are called upon to decide is whether the finding concurrently entered by the Rent Control Court and the Appellate Authority that the eviction ground under Section 11(4)(v) stands established in this case warrants interference in revision. According to us, the above question can be answered only in the negative. We are unable to find any admission in PW1's evidence that during the period of six months prior to the filing of the RCP, the landlord has collected rent from the revision petitioner while the revision petitioner was conducting business in the petition schedule premises. The apparent admission of the landlord of having collected rent from the petition schedule premises pertains to the period much anterior to that period. Ext.A2 submitted by the petitioner before the Alappuzha Income Tax Officer is dated 23/02/05. Ext.A2 contains an unqualified admission to the effect that as on 23/02/05 the revision petitioner is not conducting any business in the petition schedule building. Of course, there is a further statement in Ext.A2 that the revision petitioner will be starting the business shortly. Ext.A2 was rightly construed as a document containing an admission to the effect that as in February, 2005 the revision petitioner did not occupy the building. The cause for non -occupation as stated in Ext.A2 significantly is the financial collapse of the revision petitioner. The material averments in paragraph 2 of the Rent Control Petition is that from 01/02/05 onwards (the period which takes in the point of time mentioned in Ext.A2 also) the tenant has not occupied the building and that such cessation of occupation is without reasonable cause. In the statement of objections filed by the revision petitioner to the RCP the reply that we find to the above averment of the landlord is one of total denial. However, elsewhere in the statement of objections we find an admission to the effect that since end of November, 2006 till the end of December, 2006 one month period prior to the filing of the application, the revision petitioner did not occupy the building. As regards this non -occupation he has offered an explanation through the statement of objections. The explanation is that during this period he suffered from "Chikengunnya" and that there was nobody in his house to look after his business during that period. As rightly observed by the learned Statutory Authorities no convincing evidence was adduced by the revision petitioner to prove that the cause for his admitted non -occupation of the premises during the one month period prior to the filing of the application is on account of the contracting "Chikengnniya". In other words Ext.A2 contains admission that in February, 2005 the tenant has not occupied the building and the statement of objection contains an admission to the effect that during the period prior to the filing of the application he has not occupied the building. According to us, Section 114(d) of the Indian Evidence Act confers discretion on the Rent Control Court to draw a presumption on the strength of Ext.A2 that the state of affairs admitted by the revision petitioner to be existing as on date of Ext.A2 has continued. If as a matter of fact, the revision petitioner has been conducting business continuously during the period from March, 2005 till November, 2006 as he claims the same is capable of being proved by documentary evidence which should be at the disposal of the revision petitioner. There is total dearth of any documentary evidence adduced by the revision petitioner to prove his claim that he has been conducting the business during the aforementioned period. As against this we find Ext.C1 Commission Report and Ext.C1 sketch. The Commissioner visited the building on as many as four continuous days at different times of the day. On every occasion he found the premises locked up. Though the Commissioner was unable to enter the building he could notice signs of non -occupation i.e. deposit of dust, cob webs etc. on the wooden planks of the petition schedule room. According to us, the finding concurrently entered by the two statutory authorities that the eviction ground under Section 11(4)(v) has been established in this case is a finding entered on a correct appreciation of the evidence - oral, documentary and circumstantial available in this case. We do not find any illegality, irregularity or impropriety about those findings. The revision necessarily has to fail and the same will stand dismissed. After our decision was made known to Sri. Omprakash, the learned counsel for the revision petitioner, he requested that the revision petitioner be granted at least one year time to surrender the premises. Normally this Court would not have been inclined to grant time to a tenant against whom order of eviction has been passed concurrently by both the courts below on the ground of cessation of occupation. But there is some evidence to show that after the filing of the Rent Control Petition probably after getting notice of institution of the RCP from the Rent Control Court the revision petitioner has resumed his business activities. Hence issue urgent notice to the respondent to determine the duration of time to be given to the revision petitioner to surrender the premises.