Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P No. 3143 of 2000

Attorney(S)

For the Appellant: John K. George, Advocate.
For the Respondent: S. Sreekumar, Advocate.

Judges

K.S Radhakrishnan
J.M James, JJ.

Acts

Section 50 of the Karnataka Rent Control Act, 1961. Section 50
Section 11(4)(v) of Act 2 of 1965,
Section 11(4)(v)

See more information ...

Smart Summary

Legal Opinion Summary — Radhakrishnan, J.

Factual and Procedural Background

The central question considered was whether a tenant must "abandon" a building to attract Section 11(4)(v) of Act 2 of 1965. The petition schedule building had been let in 1972 at a monthly rent of Rs. 80 for lodging. The respondent-tenant worked as a stenographer in the judicial department and retired in 1986. According to the landlord, the tenant occupied the room for about two years after retirement, later married (dates described in the record vary) and shifted residence to his native place, Annamanada, and therefore ceased to occupy the premises continuously for six months prior to filing the rent control petition.

The Rent Control Court concluded that mere cessation of occupation was not sufficient to attract Section 11(4)(v); there must be an abandonment of the building, and because the tenant had not abandoned and continued paying rent the section did not apply. The Appellate Authority confirmed that order. The landlord filed the present revision petition challenging the concurrent decisions below.

Evidence at trial included the landlord as P.W.1, the commissioner (who prepared a report and testified) as P.W.2, a former tenant as P.W.3, and for the tenant R.W.1 to R.W.3 together with documentary exhibits (Exts. B1–B4). The commissioner produced Ext. C1 report.

Legal Issues Presented

Whether it is necessary that the tenant should "abandon" the building so as to attract Section 11(4)(v) of Act 2 of 1965.
Whether cessation of occupation (without formal abandonment) for six continuous months prior to filing the rent control petition suffices to invoke Section 11(4)(v).
Whether landlord had established that the tenant ceased to occupy the premises continuously for six months prior to filing the petition in this case.
Whether the High Court, in revisional jurisdiction, may reappreciate evidence and examine the legality or correctness of concurrent findings of lower courts.

Arguments of the Parties

Landlord's Arguments (Appellant)

The tenant ceased to occupy the lodging premises continuously for the requisite six months prior to filing of the rent control petition because after marriage he shifted residence to his native place (Annamanada) and stopped residing in the lodging house.
Evidence included the landlord's own testimony (P.W.1), the commissioner’s report (Ext. C1) and testimony (P.W.2), and testimony of a former tenant (P.W.3) who stated the tenant was not seen up to December 1993 and that the room appeared to have been locked for years; the commissioner reported dilapidation and non-use.

Tenant's Arguments (Respondent)

The tenant denied cessation of occupation: he asserted continued residence in the rented premises even after marriage, stating he went home only occasionally and continued to work (as Confidential Assistant in various Commissions and later conducting job typing work in the scheduled premises).
Documentary evidence (Exts. B1–B4) and oral evidence (R.W.1–R.W.3) were put forward to show ongoing occupation and activity connected to the premises.
Counsel for the respondent argued the High Court should not interfere with concurrent findings of the courts below in revision, submitting that the case did not warrant interference with those conclusions.

Counsel Submissions on Legal Burdens

Counsel for the respondent contended the findings below should stand and that the landlord had earlier filed a petition under Section 11(3) which was dismissed (argued as context), but accepted that when a plea under Section 11(4)(v) is adjudicated the landlord must establish six months’ cessation and the tenant may rebut that or show reasonable cause.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pareed Kaka v. Shafee Ahmed Saheb (2004 (2) KLT 130)	Establishes that the High Court, under the statutory provision analogous to Section 50 of the Karnataka Rent Control Act, has jurisdiction in revision to examine legality or correctness of decisions, including power to reappreciate evidence despite concurrent findings below.	The court relied on this authority to justify reappreciation of evidence and to exercise revisional jurisdiction to set aside the concurrent orders of the Rent Control Court and Appellate Authority because those courts proceeded on an incorrect legal premise (requiring "abandonment").

Court's Reasoning and Analysis

The court proceeded in two principal stages: first factual evaluation of whether the landlord proved cessation of occupation for six continuous months before filing the petition, and second legal interpretation of Section 11(4)(v) and the correctness of the lower courts' approach.

Factual analysis:

The court examined the landlord's evidence: P.W.1 (landlord) and P.W.3 (former tenant/teacher) who deposed the tenant was not seen up to December 1993 and the room appeared locked and not used. A commission was taken out; the commissioner’s report (Ext. C1) and the commissioner’s oral evidence (P.W.2) described the room as locked, dilapidated, dusty with webs and indicated non-use for approximately three to four years. The commissioner inspected on 4-1-1996 and observed items and the state through a window.
On this evidence the court concluded the landlord had proved cessation of occupation continuously for the requisite six months prior to filing the petition.

Onus and tenant's evidence:

The court held the onus shifted to the tenant to disprove cessation. The tenant's documentary exhibits (Exts. B1–B4) showed employment as Confidential Assistant at various times (dates given in the documents), but the court observed these documents only established employment, not residency or continuous occupation of the lodging premises.
The tenant’s oral witnesses (R.W.1–R.W.3) were assessed as interested witnesses: R.W.2 was a colleague, R.W.3 a flower merchant conducting business in the ground floor; the court treated their testimony as not sufficiently independent to establish continuous occupation. The tenant had not produced rent receipts, which the court noted would have been expected evidence if rent had been paid regularly (Section 9 of the Act entitles a tenant who pays rent to obtain a receipt in prescribed form).
The commissioner’s report was given significant weight; the court rejected the Appellate Authority’s attempt to discount parts of it (the calendar dating argument) and saw no reason to discard the report.

Legal analysis:

The court found both the Rent Control Court and the Appellate Authority erred in treating "abandonment" as a statutory requirement for Section 11(4)(v). The court observed that the statute uses the phrase "ceased to occupy" and does not use the word "abandon".
The court explained the ordinary meaning of "abandon" (to give up, to desert) is not the statutory term; therefore requiring "abandonment" imports words not found in the statute and is legally incorrect.
The court interpreted "occupy" (as used in the statute) to mean to cohabit, to hold or have in possession, and to be enjoyed or put to use. Thus physical possession without actual occupation or enjoyment is not sufficient to defeat a claim based on cessation of occupation.
Applying these principles to the facts, the court concluded the landlord had discharged the initial burden of proving cessation; the tenant had not rebutted the presumption of cessation nor shown reasonable cause for any cessation.
Finally, citing Pareed Kaka, the court held that in revisional jurisdiction the High Court can reappraise evidence and go into legality or correctness of concurrent findings. Because the lower courts proceeded on a wrong legal premise, their concurrent findings were vitiated and subject to interference.

Holding and Implications

Holding: The High Court allowed the revision, set aside the orders of the Rent Control Court and Appellate Authority, and held that the landlord is entitled to eviction under Section 11(4)(v) of Act 2 of 1965.

Implications:

Direct effect: The orders below were quashed and the landlord succeeded in obtaining eviction under Section 11(4)(v) on the facts of this case.
Legal clarification: The court explicitly held that "abandonment" is not a statutory requirement under Section 11(4)(v); cessation of occupation continuously for six months prior to filing the petition is the statutory test. The decision emphasizes that proof of employment or physical possession alone does not substitute for evidence of actual occupation or regular payment of rent (receipts), and that interested witnesses may be insufficient to rebut proven cessation.
Revisional jurisdiction: The court confirmed that the High Court may reappreciate evidence and examine the legality or correctness of concurrent findings when those findings rest on incorrect legal principles; such fundamental errors justify interference in revision.

Note: This summary is confined strictly to the facts, arguments, legal reasoning and outcome as presented in the provided opinion text.

Show full summary ...

Kurian Thomas v. N. Sreedharan Menon

Radhakrishnan, J.:— Is it necessary that the tenant should abandon the building so as to attract Section 11(4)(v) of Act 2 of 1965, is the question that has come up for consideration in this case.

2. Rent Control Court concluded that mere cessation of occupation is not sufficient to attract Section 11(4)(v), but there must be an abandonment of the building. Rent Control Court held that since tenant has not abandoned the building and continued to pay rent, there is no cessation of occupation by abandonment and hence Section 11(4)(v) would not be attracted.

3. The order of the Rent Control Court was confirmed by the Appellate Authority. Hence this revision petition by the landlord.

4. Petition schedule building was rented out to the respondent-tenant on a monthly rent of Rs. 80/- in the year 1972 for lodging purposes. Respondent was a stenographer in the judicial department and he retired from the service in the year 1986. According to the landlord, after retirement tenant continued to occupy the room for a period of two years. Later in the year 1990 he got married and shifted his residence to Annamanada, his native place. Tenant therefore ceased to occupy the premises continuously for six months prior to the date of filling of the petition. In order to establish the case, landlord was examined as P.W 1. Commission was taken out and the commissioner was examined as P.W 2. P.W 3 was a former tenant.

5. Tenant resisted the petition contending that there is no cessation of occupation. He was working as Confidential Assistant in the judicial department and after retirement he was working in various inquiry commissions and advocate's office. Though he got married on 17-1-1988 he continued to stay in the tenanted premises and was going home only occasionally. From 19-11-1987 respondent had worked as Confidential Assistant in various Commissions of Inquiry. Since March 1994 he is conducting job typing work in the scheduled premises and therefore there is no cessation of occupation of the tenanted premises. In order to establish the case tenant got himself examined as R.W 1. R.Ws 2 and 3 were also examined on his side and Exts. B1 to B4 documents were produced.

6. Counsel appearing for the respondent Sri. S. Sreekumar tried to support the judgment of the Appellate Authority and submitted that this is not a fit case warranting interference by this court in its revisional jurisdiction. Respondent-tenant is occupying the tenanted premises from 1977 onwards. He retired from service on 31-5-1987. Landlord had earlier filed R.G.P No. 178 of 1983 under Section 11(3) of the Act and that was dismissed. Though the matter was taken up in appeal and revision, landlord could not succeed. Earlier rent control petition was filed under section 11(3) which, in our view, has no relevance when a plea under Section 11(4)(v) is adjudicated. Landlord has to establish that tenant has ceased to occupy the building continuously for a period of six months prior to the filing of the rent control petition and it is for the tenant to show that there is no cessation of occupation continuously for a period of six months prior to the filing of the rent control petition and even if there is cessation of occupation, tenant could establish that there is reasonable cause for the same.

7. We may first examine as to whether landlord has succeeded in establishing that tenant has ceased to occupy the premises continuously for a period of six months prior to the date of filling of the rent control petition. Landlord was examined as P.W 1. Landlord's case is that after the marriage in the year 1990 tenant never used to reside in the lodging house and that he has settled down at his native place at Annamanada. Landlord apart from his oral evidence has examined P.W 3. P.W 3 is a teacher and was formerly a tenant in one of the rooms in the scheduled building. P.W 3 deposed the tenant was not seen upto December 1993. He further deposed that four or five years prior to December 1993 tenant was not seen in the petition scheduled building and it was seen locked. Landlord also took out a commission and the commissioner submitted Ext. C1 report. Commissioner reported that the room is in a dilapidated condition due to non user. The room was locked and the commission could watch the condition of the room through the window on the western side. With regard to the period of non user commissioner reported that the room has not been used for a long time approximately three or four years. The room was found to be dusty and webs were seen everywhere. Few of the items found in the room were also noticed by the commissioner. The commissioner gave oral evidence in support of his report when he was examined as P.W 2. The landlord, in our view, has proved cessation of occupation of the premises continuously for a period of six months prior to the filling of the petition.

8. The onus has now shifted to the tenant to disprove that. The tenant has produced Ext. B4 certificate which would show that he had worked from 20-8-1992 to 24-4-1994 on a consolidated salary of Rs. 1,948/-. Certificate, in our view, would only show that he was working as Confidential Assistant from 20-8-1992 to 24-4-1994. Ext. B2 is the certificate issued by N. Sukumaran who was heading another commission of inquiry. It would show that he was working as Confidential Assistant from 05-04-1989 to 30-06-1990. Those certificates would only show that he was working as Confidential Assistant and not whether the tenant was using the lodging house. But the question to be decided is not whether he had worked in these Commissions of Inquiry. The question to be decided is whether he has ceased to occupy the tenanted premises continuously for six months prior to the filling of the rent control petition.

9. Counsel for the tenant submitted that the oral evidence adduced by P.W 3 cannot be believed since he is an interested witness. Counsel also submitted that the courts below rightly accepted the evidence of R. Ws 1 to 3.

10. We have already indicated that the documents produced by the tenant would not show that he was in occupation of the premises. Ext. B1 is certificate dated 30.6.1988, Ext. B2 30.6.1988, Ext. B3 24-4-1994 and Ext. B4 10.4.1992 We are of the view, these documents would only indicate that he was working as Confidential Assistant in various Inquiry Commissions. Apart from the interested testimony of R.W 1, tenant has also examined R.W 2 to show that he was occupying the premises. R.W 2 is none other than a colleague who was working with him in the Commission and he is an interested witness. He stated that he visited the premises. R.W 3 is a flower merchant. He is conducting business in the ground floor of the scheduled building. His evidence is also highly interested. The mere fact that R.Ws 2 and 3 have deposed that the tenanted premises was not seen closed does not mean that the tenant has occupied the premises continuously prior to the filling of the petition. The tenant has not produced any evidence to show that he has been paying rent regularly. He could have obtained the rent receipts. As per Section 9 of the Act tenant who makes payment on account of rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid. There is no case for the tenant that he was paying rent regularly. If that is the case of the tenant, he could have obtained receipts which would show that he was staying in the tenanted premises. Further commission report is also very crucial. Commissioner inspected the premises on 4-1-1996 and the room was found locked. Commissioner reported that he tried to ascertain the condition of the room through the window on the western side. Commissioner has opined that the room was in a dilapidated condition because of non user. He has stated that the room was found with webs everywhere. Appellate Authority tried to make out a case that the calender noticed by the commissioner is of the year 1986. We are of the view there is no reason to discard the commission report. Commission report, the evidence given by the commissioner as P.W 3 and the oral evidence of P. Ws 1 and 2 would positively show that the tenant has ceased to occupy the building continuously for six months prior to the filling of the rent control petition.

11. We are of the view Rent Control Court and Appellate Authority have committed a grave error in taking the view that only if there is abandonment it could be said that there would be cessation of occupation. Rent Control Court and Appellate Authority used words which are not in statue. Statue has not used the word “abandonment”. The word “abandon” means to give up, to desert etc. Tenant need not abandon the building so as to attract Section 11(4)(v) of the Act. Landlord is also not expected to establish that tenant has abandoned the building so as to attract Section 11(4)(v). Once landlord could establish that tenant has ceased to occupy the premises continuously for six months prior to the filling of the petition he is entitled to get order of eviction under that section. The word “occupy” means to cohabit with, to hold or have in possession. Tenanted premises must be in the state of being enjoyed and occupied. The word “occupy” used by the statue would show that tenanted premises be put to use. Tenant cannot be heard to contend that he is having physical possession of the premises though not in occupation. So far as this case is concerned, we are of the view landlord has discharged the burden and then the onus has shifted to the tenant and the tenant could not establish that he has not ceased to occupy the premises and even if there is cessation that was with reasonable cause.

12. Counsel appearing for the tenant submitted that this court is not justified in interfering with the concurrent findings rendered by the courts below in our revisional jurisdiction. The question whether High Court has jurisdiction to go into the legality or correctness of the decision wias considered by the apex court in Pareed Kaka v. Shafee Ahmed Saheb (2004 (2) KLT 130). Apex court was dealing with Section 50 of the Karnataka Rent Control Act, 1961. Section 50 gives power to the High Court to call for and examine any order passed or proceeding taken by the Court of Small Causes or the Court of Civil Judge under the Act for the purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such orders as it thinks fit. The apex court held that the High Court has jurisdiction to go into the legality or correctness of the decision which includes the power to reappreciate evidence though the orders passed by the Rent Control Court and Appellate Authority are concurrent. So far as this case is concerned, we have already indicated that both the courts below have proceeded on the basis since there was no abandonment of the tenanted premises Section 11(4)(v) would not apply and dismissed the petition., which, in our view, is a fundamental error which vitiates the entire proceedings. Both the courts below appreciated the oral and documentary evidence on a wrong premise applying wrong legal principle. In such circumstances, we are inclined to allow this revision and set aside the orders passed by the courts below. We hold that landlord is entitled to get eviction under Section 11(4)(v) of the Act.

Kurian Thomas v. N. Sreedharan Menon

Legal Opinion Summary — Radhakrishnan, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Landlord's Arguments (Appellant)

Tenant's Arguments (Respondent)

Counsel Submissions on Legal Burdens

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kurian Thomas v. N. Sreedharan Menon

Comments