TaxTMI 
TaxTMI 
2003 (10) TMI 688
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.... need refer to the pleadings so far as they pertain to the ground under Section 11(4)(v) only. The allegation was that 1½ years prior to the institution of the R.C.P. which was filed on 24th September 1991, the tenant ceased to occupy the building without reasonable cause. The tenant answered those allegations by contending that he never ceased to occupy the building; that he who used to conduct grocery business originally is presently conducting business in coconuts and cigars and is eking out his livelihood on the income derived from that business. Noticing that an Advocate Commissioner had already reported the building to be kept closed, he contended that he has several cardiac ailments and that on the day of the Commissioner's visit, he had been to Kozhikode to meet his Cardiologist. 3. The evidence so far as the same pertains to ground under Section 11(4)(v) were the oral testimonies of P.W. 1 the Petitioner/the landlord, P.W. 2 and P.W. 3--Two witnesses including the Advocate Commissioner, R.W. 1, the tenant, Ext. A-2--Lawyer notice, Ext. A-4--Assessment Register relating to the building, Exts. B-1 and B-2 licences issued by the Malabar Marketing Company,....
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....red with the findings of the Rent Control Court. Learned Counsel submitted that Ext. A-4 was a document with considerable probative value in proceedings under the Rent Control Act and the landlord did not apply for the assessment register pertaining to the remaining quinquennial period of 1990-1995 was only that those periods are obviously periods subsequent to the filing of the R.C.P. Counsel further submitted that the question whether the tenant was actually conducting business in the room taken by him on lease was a question which could be proved by the tenant himself by adducing documentary evidence of better quality than Exts. B-1 and B-2. Exts. B-1 and B-2, Counsel pointed out are not trade licences issued by the local authority; instead they are licences issued by some private organisation where the tenant's wife was an employee. The non-production of the best evidence, according to Counsel should have persuaded the Rent Control Court to draw requisite adverse inferences against the tenant. 6. Sri R.K. Muraleedharan, per contra, invited our attention to the decision of a learned Single Judge of this Court reported in Cherian v. Jose 1980 K.L.T. 661 and to the decision....
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....r Section 13(2)(v) of East Punjab Urban Rent Restriction Act, 1949. The expression used in that statute are the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause'. Thus even in respect of a statute which employs the present perfect tense, the Supreme Court has taken the view that cessation should continue upto the date of filing of the application. We therefore approve the view of the learned Judge in Cherian v. Jose 1980 K.L.T. 661 that cessation for the purposes of Section 11(4)(v) must continue upto the date of filing of the rent control petition. However, the court shall not take a pedantic approach regarding this aspect. We notice that a good number of cases where there has been actual cessation for more than the statutory period, eviction has been refused either on the short reason that the landlord did not take out a commission to reveal the state of affairs obtaining as on the date of the application or on the reason that the Commissioner appointed by the court at the time of commencement of the rent control proceedings did not report positively regarding the actual cessation. It should be remembered that the enquir....
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....4-95 were all years to come when the R.C.P. was filed and were obviously not relevant Obtainment of certified extracts from local authority for 5 years period will be costlier also. Sri Pulickool Abubacker has during the course of hearing shown us certified copy of the assessment register pertaining to the entire quinquennial period from 1990-1995 which also reveals that the vacancy continues. It appears that the learned District Judge was unduly obsessed with the question of burden of proof in cases for eviction under Section 11(4)(v). Appreciation of Ext. C-1 report by the learned District Judge has not been in a realistic manner. The Commissioner did report that the room remained locked up and there were cobwebs in the upper portions of the walls of the rooms. Instead of taking the presence of cobwebs in the room as a circumstance probabilising the landlord's case of non-occupation or non-user, what the learned District Judge has done is to highlight the Commissioner's report that cobwebs were not seen on the keyholes, which according to the learned District Judge "indicates that the shop room was being opened". So also, the learned District Judge has interpreted the Com....