A.Muhamed Mustaque, J. This revision is filed by the tenant challenging the concurrent findings of the Rent Control Court and Rent Control Appellate Authority under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the 'Act').
2. The landlord approached the Rent Control Court seeking eviction under Sections 11(4)(ii), 11(4)(iii) and 11(4)(v) of the Act. The Rent Control Court disallowed the claim under Sections 11(4)(ii) and 11(4)(iii) and allowed the claim under Section 11(4)(v) of the Act. Challenging the order of eviction under Section 11(4)(v) of the Act, the tenant preferred RCA No.89/2012 before the Rent Control Appellate Authority-II, Kozhikode. The landlord also preferred an appeal against dismissal of his claim under Sections 11(4)(ii) and 11(4)(iii) before the Rent Control Appellate Authority as RCA No.135/2012.
3. The Appellate Authority dismissed the challenge against eviction under Section 11(4)(v) of the Act filed by the tenant in RCA No.89/2012. It is challenging the order of eviction concurrently found against the tenant under Section 11(4)(v) of the Act , this revision is filed.
4. The tenanted premises is a residential building.
The case of the landlord is that it was entrusted to the tenant on 01/08/1975 on monthly rent of Rs.50/-. It is alleged that the tenant has acquired a new residential building near Civil Station, Calicut and ceased to occupy the tenanted premises for more than six years without sufficient reasonable cause.
5. The tenant denied the allegation that he ceased to occupy the tenanted premises. A Commissioner was deputed by the Rent Control Court. The Commissioner's report was marked as Ext.C1 which was an ex parte report. The Commissioner was examined as CW1. At the time of inspection by the Commissioner, the building was found locked. However, the Commissioner noticed that rafters and reapers of some portion of the roof were found damaged and inside of the building was not in a hygienic condition. It is also noted by the Commissioner that almost all rooms were covered with cobwebs. It was also noticed that old and unused household articles and rusted iron wires were lying inside the building. It is also noted by the Commissioner that almost all the windows and doors were broken and damaged. The landlord produced Ext.A7 which would also show that average consumption of electricity was zero unit. Based on this evidence, Courts below came to the conclusion that the tenant has ceased to occupy the building at least 6 months prior to the filing of Rent Control Petition.
6. To establish that the tenant has ceased to occupy the tenanted premises for a period more than 6 months prior to the filing of the Rent Control Petition, the burden is on the landlord to prove that tenant has ceased to occupy the building on the date of filing petition. The nature of the use of the building is one of the factor that would determine the nature of occupation by the tenant. The report of the Commissioner would show that the building remained unused for at least several months to indicate that the tenant has ceased to occupy the building. When certain state of affairs are seen to exist on the date of the petition, that state of affairs have to be presumed to exist on an anterior date to the petition. It is up to the tenant to dislodge such presumption based on the state of affairs by disproving the same by adducing cogent evidence. Instead, tenant denied that he has ceased to occupy the petition schedule building. He has no explanation as to the matters reported by the Commissioner. The court below concurrently found that based on the available evidence before the court, that tenant ceased to occupy the petition schedule building for the statutory period mentioned under Section 11(4)(v)of the Act. We find that there is no illegality or impropriety in appreciating the evidence adduced by the landlord to sustain his claim under Section 11(4)(v) of the Act. Therefore, we do not see any reason to interfere with the finding of fact for ordering eviction under Section 11(4) (v) by the courts below. Accordingly we dismiss this revision in limine.
7. The learned counsel for the revision petitioner prays for one year's time to vacate the petition schedule building. we do not find any reason to grant time especially when courts below have ordered eviction of the tenant under Section 11(4)(v) of the Act. However, in order to remove any articles belonging to the petitioner from the tenanted premises, we grant him time upto 31/08/2014 on the following terms and conditions:
The tenant shall file an affidavit before the Rent Control Court within four weeks from today undertaking to surrender tenanted premises unconditionally to the landlord by 31/08/2014 and also on further condition that he shall discharge the entire arrears of rent, if any, within one month from today.
If the tenant violates any of the above conditions, the landlord is free to execute the order of eviction.
Sd/-K.T.SANKARAN JUDGE MJL Sd/- A.MUHAMED MUSTAQUE JUDGE