Skip to content


Kanarakutty Kurup Vs. Vivekanandan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1720 of 1978-J
Judge
Reported inAIR1980Ker167
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(4)
AppellantKanarakutty Kurup
RespondentVivekanandan
Appellant Advocate P.C.B. Menon and; V.P. Mohan Kumar, Advs.
Respondent Advocate K.P. Dandapani and; Sumathi Dandapani, Advs.
DispositionRevision dismissed
Cases ReferredGajanan v. S. H. Patel
Excerpt:
.....long building remained closed - non-availability of electricity due to conduct of petitioner - non-occupation by tenant due to sufficient cause - in absence of reliable materials finding of appellate authority not liable to be set aside - revision dismissed. - - 2. the rent control court held, that there was non-user of the building and the respondent had failed to adduce evidence that he was doing business in the building. his business failed, and he surrendered possession of the rooms, except the one owned by the respondent in the case. under section 13 (1) (k) of the bombay rents, hotel and lodging house rates control act (57 of 1947), the landlord was entitled to recover possession of the building leased on the following conditions being satisfied: in the absence of reliable..........controller for restoring the amenity and after the current supply was restored he restarted the work. the tenant would also say that during the interval when there was no electric supply, he was carrying on items of repairing works, which did not require consumption of energy. the petitioner, however, contended that the respondent stopped his repairing work since he got an employment in the beypore port. the stand taken by the respondent on this aspect was that the job was a temporary one, it did not prevent him from carrying on the radio repairing work after office hours and that he had employed a paid assistant to do work during the period he was away. the evidence of the respondent on the above point has been accepted by the appellate authority and the district court. that there.....
Judgment:
ORDER

Kumari P. Janaki Amma, J.

1. The revision petitioner is the owner of a building within the Calicut Corporation, which has been taken on lease by the respondent on a monthly rent of Rs. 37.50. The petitioner filed O. P. (R. C.) No. 179 of 1974 before the Munsiff's Court, Kozhikode-II for eviction of the respondent on the ground of arrears of rent and also on the ground that the respondent had kept the building locked for about one and half years, causing thereby damage to the building. The respondent in his counter denied that he had kept the rent in arrears. According to him, there was an arrangement between him and the revision petitioner under which the respondent was to do some additional work in the building, and adjust the rent towards the cost of the same. It was on account of the above arrangement that rent was not being paid. He also denied that any damage has been caused to the building. He would state, that the petitioner caused the electric current to be cut, with the result that the respondent had to approach the Tahsildar for restoration of the amenity. After the electric current was restored work was being carried on in the building. There were, therefore, no grounds for eviction of the respondent.

2. The Rent Control Court held, that there was non-user of the building and the respondent had failed to adduce evidence that he was doing business in the building. The claim for eviction on the ground of arrears of rent was, however, declined. The respondent, thereupon, filed C. M. A. No. 213 of 1975 before the Appellate Authority, challenging the order of eviction. The Appellate Authority observed that the petition was filed under Sections 11 (2) (a) and 11 (4) (iii) of Act 2 of 1965, and that there was no claim for eviction under Section 11 (4) (v), which deals with cessation of occupation for six months without reasonable cause. The appellate authority, however, considered the question whether there was ground for eviction under Section 11 (4) (v), and held, that on the facts and the evidence adduced, no case for eviction under Section 11 (4) (v) was made out. The appellate authority, therefore, reversed the decision of the Rent Control Court and dismissed the application for eviction. The above finding was confirmed in revision by the District Judge, Kozhikode. The present petition is filed by the revision petitioner landlord, challenging the order refusing eviction.

3. It is noted that the revision petitioner sent a notice, Ext. A2, as early as 6-3-1973 claiming eviction on the ground of arrears of rent. No mention is seen made therein of the non-occupation of the building by the tenant. In the petition before the Rent Control Court, the reference is confined to Sections 11 (2) (c) and 11 (4) (iii). There is no mention of facts entitling eviction under Section 11 (4) (v) or that the tenant had ceased to occupy the building continuously for six months without reasonable cause; the petition mentions only that the building was remaining closed for one and a half years and the closure was causing damage to the building, a ground which might fall under Section 11 (4) (ii).

4. Whether a tenant has ceased to occupy the building continuously for six months without reasonable cause is a question of fact depending on appreciation of evidence. Assuming that a meticulous observance of pleadings is not ex-pected in proceedings under the Buildings (Lease and Rent Control) Act, the point to be considered is whether the facts and circumstances established warrant an order of eviction under Section 11 (4) (v) of the Act or an interference in revision under Section 115 of the Code of Civil Procedure.

5. It is the common case, that the building was taken on lease by the tenant for carrying on radio repairing work. According to the tenant, the landlord cut electric connection to the shop, with the result that he could not carry on the repairing work. He had to approach the Accommodation Controller for restoring the amenity and after the current supply was restored he restarted the work. The tenant would also say that during the interval when there was no electric supply, he was carrying on items of repairing works, which did not require consumption of energy. The petitioner, however, contended that the respondent stopped his repairing work since he got an employment in the Beypore Port. The stand taken by the respondent on this aspect was that the job was a temporary one, it did not prevent him from carrying on the radio repairing work after office hours and that he had employed a paid assistant to do work during the period he was away. The evidence of the respondent on the above point has been accepted by the appellate authority and the District Court. That there was a cutting of the electric current followed by a petition filed by the tenant before the Accommodation Controller and restoration of the current is admitted by the revision petitioner also in his evidence.

6. As already stated, whether the tenant is liable to be evicted on the ground mentioned in Section 11 (4) (v) of the Act is a matter to be decided on the facts and circumstances of each case. In Bhargavi Amma v. Stephen, 1979 Ker LT (SN) 2, the question was whether keeping some of the belongings of the tenant in the building amounted to occupation of the building. This Court held, that if the building had been let out only to store articles the fact that the building remained closed did not amount to non-user or non-occupation. In a case where the lease is not for storing things the tenant may have to prove that there was reasonable cause for his not opening the building, in the absence of which tt would be inferred, that he had ceased to occupy the building.

7. Ananthasubramania Iyer v. Sarada Amma, 1978 Ker LT 338, is another case under Section 11 (4) (v). Therein, the tenant had five or six vegetable shops in different parts of Trivandrum. His business failed, and he surrendered possession of the rooms, except the one owned by the respondent in the case. Since he was not carrying on any business in the room continuously for more than six months a claim for eviction was made under Section 11 (4) (v). The case of illness, put forward by the tenant, was found against. The order of eviction was confirmed by the appellate authority and the revisional authority. The matter came before this Court. This Court held, that the physical absence of the tenant from the building for more than six months would raise a presumption that he had ceased to occupy the building and that he had abandoned it, and that it was for the tenant to dislodge the onus and establish that he had the intention to possess the building for the purpose for which it was let.

8. Reference may also be made, in this connection to the decision of the Madras High Court in Abdul Rahim & Bros. v. Selvan Bros., (1956) 1 Mad LJ 237. Under Section 7 (2) (v) of the Madras Act a tenant was liable to be evicted where the building was situated in a place other than a hill station if he had ceased to occupy the building for a continuous period of four months without reasonable cause. The tenant took the building for the purpose of carrying on business in wine. On the introduction of prohibition into the Madras State the carrying on of his business became illegal with the result the tenant ceased to do that business. It was thereafter that the petition for eviction was filed. The finding was that though no business was carried on in the building, the tenant had left his furniture in the premises. The High Court held, that the Act did not require that the tenant should carry on business. It was sufficient that he occupied it. Keeping his furniture in the premises was held to be sufficient occupation for the purpose of Section 7 (2) (v). 9. The principles relating to reasonable cause for non-user are seen discussed also in a Bombay decision, Achut v. Sadashiv, AIR 1973 Bom 210. Therein the tenant was a Government servant, who, on being transferred to different stations, left the building, which he had taken on lease and kept the premises unused for more than six months. Under Section 13 (1) (k) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), the landlord was entitled to recover possession of the building leased on the following conditions being satisfied: (1) that the premises had not been used for the purpose for which they were let; (2) that the said non-user was without reasonable cause; and, (3) that such non-user was for a continuous period of six months immediately preceding the date of the suit. It was held, that on the facts of the case, the tenant had reasonable cause for not using the premises for the purpose for which they were let. The learned Judge observed:

'The question will depend on the facts and circumstances of each case. The tenant must couple and clothe his inward intention to return, with some formal, outward and visible sign of it, as for instance by installing some caretaker or representative, be it a relative or not with the status of a licencee and with the function of preserving the premises for his own ultimate homecoming. It may also be that the same result can be secured by leaving on the premises, as a deliberate symbol of continued occupation, furniture. As stated by Asquith, L. J., in Brown v. Brash and Ambrose, (1948) 2 KB 247, the tenant must prove not only animus possidendi but a corpus possessionis.'

10. In the instant case, the evidence is that there was only one meter for the building of which the portion occupied by the respondent was a part. It could be gathered from this sole circumstance that the non-availability of electricity was due to the conduct of the petitioner. Therefore, even assuming that the tenant's case, that he had engaged an assistant in the shop and was himself doing the work there after his office hours, is to be discarded, there is material in the case to show that non-occupation by the tenant was due to sufficient cause.

11. On behalf of the revision petitioner it was argued on the basis of Gajanan v. S. H. Patel, AIR 1975 SC 2156 that the landlord need prove only that there was non-occupation for a period of six months and that the subsequent occupation by him is not a ground for refusing eviction. In the instant case, there is no independent evidence to show when the electric supply was restored, and how long the building remained closed. In the counter filed, the tenant stated that he had never ceased to occupy the building. In the absence of reliable materials for coming to a different conclusion the finding of the appellate authority is not liable to be set aside on the basis of the sole testimony of the petitioner. There are, therefore, no reasons for interference in revision.

The revision petition is, accordingly, dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //