Kerala High Court
Thaikkuttiyil Assainar @ Hassan vs Parambath Ismayil on 5 November, 2024
Author: Amit Rawal
Bench: Amit Rawal
RCREV. NO. 47 OF 2023 1
2024:KER:85647
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
RCREV. NO. 47 OF 2023
AGAINST THE JUDGMENT DATED 23.11.2022 IN RCA NO.12 OF 2022 OF
ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ARISING OUT OF THE ORDER
DATED 27.11.2021 IN RCP NO.65 OF 2019 OF MUNSIFF COURT, VADAKARA
REVISION PETITIONER/RESPONDENTS IN RCA/PETITIONERS IN RCP:
1 THAIKKUTTIYIL ASSAINAR @ HASSAN
AGED 63 YEARS
VILLIAPPALLY AMSOM, MAYYANNUR P.O,VATAKARA TALUK KOZHIKODE,
PIN - 673542
2 ORKKATT KUTTIYIL AYISHA
AGED 58 YEARS
THAIKKUTTIYIL HOUSE,VILLIAPPALLY AMSOM, MAYYANNUR
P.O,VATAKARA TALUK KOZHIKODE, PIN - 673542
3 THAIKKUTTY USMAN HAJI
AGED 57 YEARS
THAIKKUTTIYIL HOUSE,VILLIAPPALLY AMSOM, MAYYANNUR
P.O,VATAKARA TALUK KOZHIKODE, PIN - 673542
BY ADVS.
PREETHI. P.V.
DEEPA NARAYANAN
K.SUJAI SATHIAN
M.V.BALAGOPAL
GOURI MEEMPAT
SANGEETHA SREEKUMAR
T.SETHUMADHAVAN (SR.)
RESPONDENT/APPELLANT IN RCA/RESPONDENT IN RCP:
PARAMBATH ISMAYIL
AGED 43 YEARS
CHERAPURAM AMSOM DESOM, VATAKARA TALUK KOZHIKODE, PIN -
673507
BY ADVS.
K.MOHANAKANNAN
M.A.ZOHRA(K/441/1984)
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
05.11.2024, ALONG WITH RCRev..48/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RCREV. NO. 47 OF 2023 2
2024:KER:85647
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
RCREV. NO. 48 OF 2023
AGAINST THE JUDGMENT DATED 23.11.2022 IN RCA NO.11 OF 2022 OF
ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ARISING OUT OF THE ORDER
DATED 27.11.2021 IN RCP NO.64 OF 2019 OF MUNSIFF COURT, VADAKARA
REVISION PETITIONERS/RESPONDENTS IN RCA/PETITIONERS IN RCP:
1 THAIKKUTTIYIL ASSAINAR @ HASSAN
AGED 63 YEARS
VILLIAPPALLY AMSOM, MAYYANNUR P.O,VATAKARA TALUK KOZHIKODE,
PIN - 673542
2 ORKKATT KUTTIYIL AYISHA
AGED 58 YEARS
THAIKKUTTIYIL HOUSE,VILLIAPPALLY AMSOM, MAYYANNUR
P.O,VATAKARA TALUK KOZHIKODE, PIN - 673542
3 THAIKKUTTY USMAN HAJI
AGED 57 YEARS
THAIKKUTTIYIL HOUSE,VILLIAPPALLY AMSOM, MAYYANNUR
P.O,VATAKARA TALUK KOZHIKODE, PIN - 673542
BY ADVS.
PREETHI. P.V.
DEEPA NARAYANAN
K.SUJAI SATHIAN
M.V.BALAGOPAL
GOURI MEEMPAT
SANGEETHA SREEKUMAR
T.SETHUMADHAVAN (SR.)
RESPONDENT: (APPELLANT IN RCA/RESPONDENT IN RCP)
C.K.KUNHABDULLA HAJI
AGED 66 YEARS
CHENOLI THAZHAKUNIYIL, THUNERI DESOM,P.O.IRINGANNUR
VATAKARA TALUK KOZHIKODE, PIN - 673504
BY ADVS.
K.MOHANAKANNAN
M.A.ZOHRA(K/441/1984)
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
05.11.2024, ALONG WITH RCRev..47/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RCREV. NO. 47 OF 2023 3
2024:KER:85647
JUDGMENT
[RCRev. Nos.47/2023, 48/2023]
This order shall dispose of two revision petitions; RC Rev.
No.47 and 48 of 2023 preferred against the judgment in RCA
No.12 of 2022 and RCA No.11 of 2022 dated 23.11.2022
respectively.
2. Succinctly, the facts in brief are that the petitioner-
landlord instituted the RCP No.64 and 65 of 2019 against the
respondents-tenants for eviction on the ground of ceased to
occupy provided under Section 11(4)(v) of the Kerala Building
Lease and Rent Control Act, 1965 on the premise that preceding
to filing of the petition, prior to six (6) months, tenant had
ceased to occupy the tenanted premises for, the purpose it was
being taken no longer existed ie., the jwellery shop and had
taken the assistance of ex parte Advocate Commissioner.
3. On receipt of the notice, respondent-tenant contested
the matter and denied to have ceased to occupy the premises
but stated that owing to the financial constraint had reduced the
business but consciously occupied the possession and paying the
rent regularly.
4. Since the parties were at variance, the learned Rent
2024:KER:85647
Controller framed the following issues:
i. Whether PW1 and the petitioner No.2 have succeeded
in establishing that the respondent had ceased to occupy
the petition schedule shop room continuously for six
months without reasonable cause?
ii. If so, whether PW1 and the petitioner No.2 are entitled
to an order of eviction under section 11(4)(v) of the Act?
iii. What is the order as to costs?
5. Both the parties brought on record the following
documents and oral evidence.
2024:KER:85647
6. Noticing the cross examination and other evidence,
learned Rent Controller ordered eviction of the respondents-
tenants.
7. Respondents-tenants filed two Appeals RCA No.11 of
2022 against the judgment in RCP No.64 of 2019 and RCA No.12
of 2022 against the judgment in RCP No.65 of 2019. The
appellate authority on re appreciation of the evidence being the
last court of fact and law, reversed the findings and dismissed
the ejectment petition.
8. Learned counsel appearing for the petitioner-landlord
submitted that the appellate authority has committed material
irregularity and perversity in reversing the well reasoned
judgment of the rent controller as it was based upon the
extensive examination of both oral and documentary evidence.
The expression legal possession has already been interpreted by
the Division Bench of this Court in 2004 KHC 1107 (Mathai
Antony v. Abraham) wherein it has been held that the word
'occupy' has to be given a meaning so as to hold that the tenant
is actually using the premises but not mere physical presence or
possession and judgment in 2017(5) KHC 254 Mahesh Babu v.
Kuttiyil Meethal Moidu is also to the similar extent. The report
of the Advocate Commissioner reveals that there were cobwebs
2024:KER:85647
in front of the shutter. The sign board showing the gold rate
was also not working and the shelves kept in the shop rooms
were also lying vacant. Opening of the shop at the time of the
inspection by the Advocate Commissioner would not come in the
way of seeking ejectment on the ground of ceased to occupy.
9. On the other hand learned counsel for the respondent
submitted that it is a well reasoned judgment and findings. The
respondents-tenants are paying the rent and are in conscious
possession though the business was down. Also relied on
certain other documents ie., Exts. B1 to B6 Bills books which
have not been noticed by the Rent controller and reversed the
findings and prays for dismissal of the revision petition.
10. We have heard the learned counsel for the parties and
appraised the paper book and of the view that there is no force
and merit in the submissions. It is a conceded position on
record that when PW1 appeared in the witness box, he candidly
admitted that he had no knowledge that the shop room was
closed. In fact he stated that the entire building is managed by
Usman Haji, 3rd respondent, who has not appeared. PW1 also
admitted that he used the room occasionally but could not say
that the tenants stopped the business. It is a matter of record
that the Advocate Commissioner inspected the scheduled rooms
2024:KER:85647
was based upon an order passed ex parte but the fact remains
when he inspected the premises shop was found open and the
son of the tenant was sitting in the shop much less AC was also
working. Certain instruments meant for jwellery work area for
making gold ornaments were kept in the second room. The Bill
books Exts. B1(a) to B1(f) were also from the period February
2019 to January 2020 whereas the rent petition was filed in
2019. Electricity Bill was also produced much less the receipt
issued by the Legal Metrology Department and Trade licence.
All these documents weighed in the mind of the appellate
authority to form a different opinion than the one of Rent
Controller primarily on the ground that there were not noticed
by allowing the rent petition.
10. There is no quarrel to the ratio of decidendi culled out
in Mathai Antony and Mahesh Babu regarding the conscious
possession. In Mathai Antony on the basis of the evidence, it
was found that the shop was lying closed but the possession was
with the tenant; the possession would not mean that he had
actually ceased to occupy whereas in this case, it was not a case
where the shop was lying closed for a period of six months prior
to the institution of the rent petition but was open when the
Advocate Commissioner appointed at the back of the
2024:KER:85647
respondent-tenant (ex parte) inspected the premises. Thus the
ratio of decidendi would not be applicable. We do not find any
illegality or perversity in the judgment of the appellate authority
reversing the findings of the Rent Controller. No ground for
interference is made out. Revision petition stands dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
sab EASWARAN S.
JUDGE
