Kerala High Court
Yesodha N.K vs Visalakshi on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
1944
RCREV. NO. 148 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 18.02.2020 IN RCA NO.86
OF 2018 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
CONCURRING WITH THE COMMON ORDER IN RCP NO.78 OF 2014
DATED 20.03.2018 OF MUNSIFF COURT, VADAKARA
REVISION PETITIONERS/APPELLANTS/RESPONDENTS 1 TO 3:
1 YESODHA N.K.,
AGED 65 YEARS, W/O.LATE BALAN, RESIDING AT
"SHINE VILLA", PONMERI AMSOM, PARAMBIL DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT,
KERALA STATE.
2 SHYBI
AGED 44 YEARS, D/O.BALAN, RESIDING AT "SHINE
VILLA", PONMERI AMSOM, PARAMBIL DESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, KERALA STATE.
3 SHYJU
AGED 43 YEARS, S/O.BALAN, K.S.R.T.C.DRIVER,
RESIDING AT "SHINE VILLA", PONMERI AMSOM,
PARAMBIL DESOM, VATAKARA TALUK,
KOZHIKODE DISTRICT, KERALA STATE.
BY ADV ZUBAIR PULIKKOOL
RESPONDENTS/RESPONDENTS/PETITIONERS & 4TH RESPONDENT:
1 VISALAKSHI,
D/O.CHATHU, AGED 73 YEARS, HOUSEWIFE,
RESIDING AT 'KAMALA SADAN', MAYYANNUR DESOM,
VILLIAPPALLI AMSOM, VATAKARA TALUK,
KOZHIKODE DISTRICT PIN - 673 542.
R.C.Rev.No.148 of 2020 -: 2 :-
2 SHEEBA M.K.,
D/O.CHATHU, 48 YEARS, RESIDING AT 'KAMALA
SADAN', MAYYANNUR DESOM, VILLIAPPALLI AMSOM,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 542.
3 SHABNA M.K.,
D/O.CHATHU, AGED 44 YEARS, RESIDING AT 'KAMALA
SADAN', MAYYANNUR DESOM, VILLIAPPALLI AMSOM,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 542.
*4 SHYNOOB,
D/O.LATE BALAN, AGED 42 YEARS, RESIDING AT
'KAMALA SADAN', MAYYANNUR DESOM, VILLIAPPALLI
AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673542
*(RESPONDENT NO.4 IS DELETED FROM THE PARTY
ARRAY AS PER ORDER DATED 24.01.2022 IN IA NO.2
OF 2022 IN RCR NO.148 OF 2020)
BY ADVS.
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
MANU VYASAN PETER
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.C.Rev.No.148 of 2020 -: 3 :-
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
R.C.Rev. No.148 of 2020
-----------------------------------------------
Dated this the 11th day of January, 2023.
ORDER
P.B.Suresh Kumar, J.
The tenants in a proceedings for eviction under Sections
11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965
(the Act) are the petitioners in this revision petition. The Rent
Control Court ordered eviction of the tenants, and the said decision
was affirmed in appeal by the Appellate Authority. The said decisions
have been set at naught by this Court in R.C.R. No.320 of 2017, and
the matter was sent back to the Rent Control Court for fresh decision
after examining the Advocate Commissioner who was appointed in
the proceedings. Pursuant to the said order, the Rent Control Court
ordered eviction of the tenants again, after examining the Advocate
Commissioner and the said decision of the Rent Control Court was
also affirmed in appeal by the Appellate Authority. It is aggrieved by
the said decisions of the authorities below that this revision petition
is instituted under Section 20 of the Act.
2. The subject matter of the proceedings is a shop
room taken on rent by the predecessor of the tenants, Balan from
the predecessor of the landladies, Chathu. The tenant was
conducting the business of tobacco and tea dust in the premises.
According to the landladies, the tenants have ceased to occupy the
tenanted premises after the death of Balan. It is alleged by the
landladies in the eviction petition that the premises was not
occupied by the tenants for almost 4 to 5 years. The tenants filed
objection to the eviction petition contending that after the death of
the original tenant, his wife was conducting business of earthen pots
and coir products in the premises and the premises was closed down
only for a period of 4 months from 07.06.2014 on account of her
illness.
3. The evidence in the case consists of the oral
evidence tendered by the husband of one of the landladies on behalf
of the landladies as PW1, Exts.A1 and A2 documents produced by
the landladies, the oral evidence tendered by the wife of the original
tenant as RW1, Exts.B1 to B15 documents produced by the tenants,
the evidence tendered by the Advocate Commissioner as CW1 and
Ext.C1 report of the Advocate Commissioner. As noted, on a
consideration of the facts and circumstances of the case, the Rent
Control Court ordered eviction of the tenants, and the decision of the
Rent Control Court was affirmed in appeal.
4. Heard the learned counsel for the tenants as also
the learned counsel for the landladies.
5. The learned counsel for the tenants contended
persuasively that there is absolutely no evidence to indicate that the
tenants have ceased to occupy the premises for a continuous period
of six months. He admitted that the wife of the original tenant was
not occupying the premises for almost 4 months on account of her
illness, but it was asserted by him based on the oral evidence
tendered by RW1 and Exts.B1 to B8 receipts evidencing payment of
electricity charges, that the wife of the original tenant was
conducting business in the premises all throughout except during
the period during which she was sick. Per contra, the learned
counsel for the landladies supported the impugned decisions of the
authorities below pointing out that there is no illegality, irregularity
or impropriety in the said decisions, warranting interference of this
Court, in exercise of power under Section 20 of the Act.
6. The short question that arises for consideration is
as to whether the impugned decisions suffer from any illegality,
irregularity or impropriety, warranting interference by this Court, in
exercise of the power under Section 20 of the Act.
7. Before dealing with the argument advanced by the
learned counsel for the tenants, it is necessary to understand the
scope of the jurisdiction of this Court under Section 20 of the Act. It
is well settled that the jurisdiction of this Court under Section 20 of
the Act is only to ensure that the decisions of the authorities below
do not suffer from any illegality, irregularity or impropriety. This
Court cannot, therefore, re-appreciate the evidence on record in
order to come to a different conclusion on any factual issues, unless
the finding can be said to be either erroneous or perverse. It has
been held by the Apex Court in Hindustan Petroleum Corpn. Ltd.
v. Dilbahar Singh, (2014) 9 SCC 78 that only findings of facts
which have been arrived at without consideration of the material
evidence, or findings which are based on no evidence or misreading
of the evidence, or findings which, if allowed to stand, would result
in gross miscarriage of justice, alone could be said to be erroneous
or perverse, warranting correction under Section 20 of the Act.
8. The eviction petition was one instituted on
19.09.2014. The original tenant died almost 4 to 5 years prior to the
institution of the eviction petition. As noted, the allegation in the
eviction petition is that the tenants are not occupying the premises
after the death of the original tenant. The stand of the tenants in the
counter-affidavit is that the wife of the original tenant was running
the business of earthen pots and coir products in the premises after
the death of the original tenant and that she was not occupying the
premises only for about 4 months from 07.06.2014. The question
whether a landlord in a given case has established the fact that the
tenant ceased to occupy the tenanted premises for a period of six
months is a question to be decided by the authorities based on the
facts and circumstances, and the evidence let in by the parties. In
the case on hand, the husband of one of the landladies gave
evidence as PW1. He categorically stated that he has personally
seen the shop room being closed all throughout after the death of
the original tenant. Nothing was brought out in the cross-
examination of PW1 to discredit his evidence. The said evidence is
reinforced in Ext.C1 report of the Advocate Commissioner. It is
observed by the Advocate Commissioner in Ext.C1 report that when
he inspected the premises on 19.09.2014, the shop room was found
closed, dust was seen deposited on the shutters and that the
shutters and lock were found rusted. The tenants do not dispute the
facts reported by the Advocate Commissioner. In light of the said
evidence, insofar as the tenants admitted that the premises had
remained closed from 07.06.2014, it was obligatory for the tenants
to prove that they were occupying the premises prior to 07.06.2014.
There is absolutely no material to show that the wife of the original
tenant namely RW1 was conducting business in the premises prior to
7.6.2014. The Appellate Authority has taken note of the fact that
RW1 admitted that she has not taken licence from the local authority
for conducting business in the premises and that she was also not
paying profession tax. The Appellate Authority also took note of the
fact that even though RW1 stated in her evidence that she has in her
possession, bills indicating purchase of various products for her
business, she did not produce the same. The Appellate Authority
further took note of the fact that RW1 could have examined the
neighboring shop owners to show that she was conducting business
in the premises prior to 07.06.2014 and that she has not chosen to
do so. The Appellate Authority found that Exts.B1 to B8 documents
produced by the tenants to prove that they were conducting the
business, are only receipts evidencing payment of electricity
charges, in which the name of the consumer is shown as
Kunhikannan and that RW1 has admitted that it does not pertain to
the subject premises. It was also observed by the Appellate
Authority that even if it is assumed that Exts.B1 to B8 relate to the
subject room, they do not show usage of electricity, as the
electricity invoice will be raised for minimum charges, even if the
premises is not occupied. Apart from all that, the Appellate Authority
also found that even the case set out by the tenants that the
premises was not occupied for a period of 4 months from 07.06.2014
on account of the illness of RW1, it has come out that during the
said period, she made a social visit to Singapore. In the aforesaid
facts and circumstances, we do not find any illegality, irregularity or
impropriety in the impugned decisions of the authorities below.
The revision petition, in the circumstances, is devoid of
merits and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB
