The court emphasized the landlord's burden to prove cessation of occupancy and the insufficient evidence from the tenant to contest the eviction.

ORDER

Harilal,J The revision petitioner is the tenant against whom the Rent Control Court passed an order of eviction under Section 11(3), which stands affirmed by the Rent Control Appellate Authority also. Thus the legality and propriety of the concurrent findings whereby the courts below concurrently found that the revision petitioner has ceased to occupy the tenanted premises for more than six months immediately before the institution of the Rent Control Petition, have come up in revision before us (The parties are referred to as in the Rent Control Petition).

2. According to the petitioner/landlord, the respondent/tenant has ceased to occupy the tenanted premises for more than two years without reasonable cause. The respondent denied the said contention and contended that, he went for Umra and during that period the shoproom was remained closed. He left India on 17.07.2012 and returned on 15.08.2012 only. During that period he could not open the shop.

In the meanwhile he was subjected to treatment for healing cut wound in his leg and his treatment continued up to 05.11.2012. For this reasons also, he could not open the shop and the shoproom remained closed till 05.11.2012. It was at that time the rent control petition has been filed and Advocate Commissioner visited the property.

3. On rival pleadings both parties adduced evidence and after considering the said evidence the Rent Control Court found that the petitioner has discharged his initial burden of proof, but the respondent failed to rebut the evidence adduced by the petitioner to prove cessation of occupation. In appeal, the Appellate Authority also affirmed the findings of the Rent Control Court that the petitioner has succeeded in proving the cessation of occupation of the petition schedule building for more than six months immediately before the institution of the Rent Control Petition.

4. Heard learned counsel for the revision petitioner.

5. Learned counsel for he petitioner advanced arguments contending that the courts below have failed to appreciate the evidence on record adduced by the respondent to prove the occupation of the tenanted premised within six months immediately before the institution of the Rent Control Petition.

6. The scope and extent of interference with the order of the court below is very limited and confined to legality, propriety and regularity of the findings of the courts below only. This Court cannot interfere with the factual findings of the courts below, unless the findings of the court below are perverse or vitiated by non-consideration of material evidence adduced by the party.

7. Bearing the aforesaid legal proposition in mind, we have considered the argument raised by the learned counsel for the petitioner that the concurrent findings of the courts below are perverse due to the non-appreciation of the evidence in its correct perspective. Going by paragraphs 11 to 17 of the impugned judgment we find that, the court below have meticulously considered the evidence on record, more particularly, Exts.B1 to B15 produced by respondent/tenant. 8. It is well settled by the judicial precedent that the initial burden of proof under Section 11(4)(v) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short 'the Act') is on the landlord and onus of proof would shift to the tenant only if the landlord succeed in discharging the initial burden of proof.

9. In the instant case, the petitioner has taken a Commission to conduct a surprise inspection in the tenanted premises on the date of institution of the suit itself and after conducting a surprise inspection, the Commissioner has filed Ext.C1 report. In order to prove Ext.C1 report the Commissioner was also examined in evidence as CW1. Going by the Commission report it could be seen that the Commissioner has reported the symptoms of long cessation of occupation. More clearly the Commissioner has specifically stated her opinion that, the respondent has ceased to occupy the building for a lo