Kerala High Court
Mathai Antony vs Abraham on 16 July, 2004
Bench: K.S.Radhakrishnan, J.M.James
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1704 of 2001(D)
1. MATHAI ANTONY
... Petitioner
Vs
1. ABRAHAM
... Respondent
For Petitioner :SRI.P.GEORGE WILLIAM
^ For Respondent :SRI.K.S.HARIHARAPUTHRAN
Coram
The Hon'ble MR. Justice K.S.RADHAKRISHNAN
The Hon'ble MR. Justice J.M.JAMES
Dated : 16/07/2004
: O R D E R
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)) .HE 1 Eviction was sought for in this case under Section 11 (4) (ii) and 11 (4) (v) of Act 2 of 1965. Inter-relationship between Section 11 (4) (ii) and 11 (4)
(v) was highlighted in this case contending that cessation of occupation continuously for six months prior to the filing of the rent control petition without reasonable cause and in a given case would reduce the value and utility of the tenanted premises materially and permanently. Can a landlord successfully seek eviction under Section 11 (4) (ii) of the Act contending that non user (ceased to occupy) within the meaning of Section 11 (4) (v) would also amount to reduction of the value and utility materially and permanently or is it necessary to maintain a petition under Section 11 (4) (ii) that there must be positive action by the tenant by using the building in such a manner so as to destroy or reduce its value and utility materially and permanently. Will a deliberate non user amount to misuse so as to fall within Section 11 (4) (ii) of the Act. Though the aforementioned points were highlighted, we need not labour much on those points to decide this case. Rent Control Court though rejected the petition on both the grounds Appellate Authority allowed eviction under Section 11 (4) (v). Rent Control Court dismissed the petition on both the grounds. Appellate Authority however allowed the appeal and ordered eviction under Section 11 (4) (v) holding that the tenant ceased to occupy the premises continuously for a period of more than six months prior to the date of filing of the petition without any reasonable cause. Tenancy commenced on 30.1.1981. Landlord provided electricity supply to the tenanted premises as per the terms of the rent deed. Tenant has to pay monthly rent on the first of every month and also electricity charges and to obtain receipts. Earlier tenant preferred petition R.C.P.No 41 of 1990 claiming eviction on various grounds including Section 11 (4) (v) as well. Rent Control petition was dismissed by the Rent Controller as per Ext. A2 dated 13.6.1991. The present rent control petition has been filed on 4.1.1996 contending that the tenant ceased to occupy the building continuously even after Ext. A2 order. In order to establish the case, landlord got himself examined as P.W.1. P.W.3 was also examined on the side of the landlord to show that tenant ceased to occupy the premises. P.Ws 2 and 4 were also examined. Exts. A1 to A4 documents were produced. Tenant got himself examined as CPW.1. Exts. C1 and C2 are the commission reports. Respondent-tenant took up the contention that the tenanted premises is used for stocking materials like cement and other concrete goods and there is no day to day business in the tenanted premises. Specific case of the tenant is that his business is of such a nature that it does not require the shop to be opened every day. He used to open the shop only when customers come. Placing reliance on Ext. C1 commission report counsel submitted that the report itself would indicate that the building remained closed intermittently. Counsel submitted that Section 11 (4) (v) would apply in a case where tenant ceased to occupy the building continuously for six months without reasonable cause. The nature of business conducted by the tenant does not require the shop to be opened every day. Consequently Section 11 (4) (v) would not apply. Counsel for the landlord on the other hand contended that the oral evidence adduced in this case would show that the shop remained closed continuously for six months prior to the filing of the petition. Reference was made to the commission report as well as the evidence of P.W.2. Counsel contended that the occupation contemplated in Section 11 (4) (v) is not just legal possession but physical possession. Reference was also made to the decision of the apex court in Abbas v. Sankaran Namboodiri (1993 (1) KLT 76). A Division Bench of this court in Rajagopalan v. Gopalan (2004 (1) KLT Sh. Notes page 54) held that occupation in the context of Section 11 (4) means only physical occupation. When it pertains to a residential building, it means occupation through residence and when it pertains to a commercial building, it means occupation by conduct of business. The Bench held that it is not obligatory that the tenant of a commercial building should should be present all the business hours of the day. The Bench held that commercial building let out for business purpose, if it is seen that no business is being carried on in the premises and that the premises are remaining closed, there will be justification to presume that there has been cessation of occupation. We may refer to the rent deed Ext. A1 dated 30.1.1981. Relevant portion of the rent deed is as follows:
In the rent deed itself the nature of the business conducted by the tenant has been stated. In the objection tenant stated that he is using the building for storing cement and other building materials. Landlord when examined as P.W.1 specifically stated that the shop room has been completely damaged and the tenanted premises has been kept unoccupied. It is stated that ceiling was damaged due to dripping of water. Tiles were found missing. Windows and doors have been considerably eaten away by white ants. It is also stated that electricity connection was dismantled and electricity charges were not remitted for years together. Landlord examined P.W.2 Electricity Engineer who produced Exts. A3 and A4 certificates issued by the Assistant Engineer of the Electrical Section. His evidence would reveal that current charges with respect to consumer No.3325 is in arrears upto September 1987 and is in disconnection from October 1987 and the electricity connection was dismantled on 6.8.1993 after notice due to non payment of arrears of current charges. P.W.3 is a local witness. He is tenant of the adjacent shop room. It has come out from his evidence that the respondent is not conducting any business in the business and that the same is kept closed and the door and window of the shop room and inside is full of white ants. According to him, for about six years the premises is kept locked. We are of the view, landlord on the basis of the oral and documentary evidence has established that tenant has ceased to occupy the building. Counsel for the tenant maintained the stand that the business conducted by the tenant in the premises is of such a nature that the premises need not be opened every day. Only when the customers approach he used to open it. There is considerable difference in Ext. C1 report and evidence. In the evidence it is stated that the premises is closed only intermittently and there is no cessation of occupation continuously for six months prior to the filing of the petition without reasonable cause. We are of the view, mere fact that shop room was opened intermittently or when customers come to the shop occasionally does not mean that he is occupying the building continuously. Intermittent opening of the tenanted premises is not an indication or test to hold that tenant is occupying the building. Tenant could still open the tenanted premises occasionally and close it so as to defeat Section 11 (4)
(v). Section 11 (4) (v) used the expression "occupy".
The word "occupy" means to take possession of, to hold or have in possession, to keep possession of etc. The word "occupy" also means engage, hold, cohabit etc. Though the word has got various meanings we have to give liberal meaning to the word occupy when we interpret Section 11 (4) (v). The word "occupy" in the context of Section 11 (4) (v) would mean enjoy to use nor to merely hold or possess. What is meant in Section 11 (4) (v) is not merely physical occupation. But physical occupation coupled with enjoyment. If the tenant is keeping the tenanted premises himself in his possession without conducting any business or without being put to use the premises for any purpose that will attract section 11 (4)
(v) of the Act. Tenanted premises is expected to put to use; nor any tenant can keep the building without using it especially when there is scarcity of commercial buildings. In a given case if the landlord could establish that the tenant is in physical possession of the building that building is not put to use or tenant is not enjoying the tenanted premises. Mere physical possession is not sufficient, but he must enjoy the premises putting it to use. If it is the case of the tenant that his business is of such a nature it does not show that the tenant established the case that he used to open the premises only intermittently and not every day. Burden is entirely on the tenant to produce materials before court to show that the business is of such a nature that it does not require the tenant to open the building every day since it is used as godown. But the tenant has to produce materials and convince the court that the nature of business is of such that it does not require to open it regularly. So far as this case is concerned, apart from the interested testimony of the tenant no independent evidence has been adduced by the tenant especially when the landlord has succeeded in showing that the building has not been used continuously for six months prior to the filing of the petition. We have indicated, as per the rent deed tenant has to pay electricity charges directly. It has come out in evidence that current charges is in arrears upto September 1987 and electricity supply was disconnected in October 1987 and dismantled later. It is for the tenant to show that the nature of business is of such that it does not require electricity. No materials have been placed before us to show that the nature of business is of such that it does not require the tenant to open the premises every day. We are of the view, tenant has not discharged the burden by showing that he has not ceased to occupy the premises and even if he has ceased to occupy the premises that was with reasonable cause. In the absence of any evidence, we are not inclined to interfere with the order passed by the Appellate Authority. The revision petition is therefore dismissed. However, considering the facts and circumstances of the case, tenant is given time for vacating the premises upto 31.08.2004 on condition that he should file an undertaking in the form of an affidavit stating that he would vacate the premises within the aforesaid period and would pay arrears of rent, if any, and future rent.
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