IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 161 of 2009()
1. S.R.RADHAKRISHNAN, S/O.R.RAVEENDRAN UNNI
... Petitioner
Vs
1. SURESHKUMAR, S/O.PEETHAMBARAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.V.V.RAJA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :24/02/2010
O R D E R
PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.
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RCR. No. 161 of 2009
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Dated this the 24th day of February, 2010
O R D E R
Pius C. Kuriakose, J.
The tenant challenges in this revision the judgment of
the Rent Control Appellate Authority ordering eviction
against him on the ground of additional accommodation for
personal use. Parties will be referred to as tenant and
landlord. The landlord sought to evict the tenant on various
grounds. It is conceded to both sides that the only ground
which survives for consideration is under section 11(8)
additional accommodation and hence we are proposed to
refer to the pleadings to the extent the same pertains to the
need for additional accommodation. The case of the
landlord was that the petition schedule building is portion of
a larger building belonging to the landlord and that the
landlord himself is in possession of the adjacent portion
where he is conducting a business by name Muthodam Mill
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Stores. The tenant is conducting business in the same line
under the name Vinayaka Auto Spares in the petition
schedule building. It is a partnership business that is being
conducted by the landlord in his portion of the building and
the landlord is the Managing Partner of that firm. The firm
intends to deal in water pump also for the purpose of
expanding their business. Lakshmi brand motor pumps
have granted them agency as per Ext.A5 for expanding
business by conducting agency of Lakshmi brand water
pumps and the space presently available with the landlord is
insufficient and inadequate. Hence the petition schedule
building which is adjacent is needed accepting a contention
in the context of the proviso to sub section 10 of section 11.
It was stated in th RCP that the tenant has other means of
income and that if it becomes necessary other premises will
be available in the locality for conduct of business by the
tenant.
2. The bonafides of the need for additional
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accommodation was disputed by the tenant who contended
that the hardship which would be sustained by an order of
eviction will far outweigh the advantages the landlord may
gain by getting the order of eviction. The rent control court
enquired into the matter. Evidence at trial consisted of
Exts.A1 to A14, Exts.B1 to B3. Commission report Exts.C1
and C3 and mahazar Exts.C2 and C4, Witnesses Ext.X1 to
X4 and oral testimony of Pws 1 to 3 and RW1 to 2, apart
from the evidence of the Advocate Commissioner CW1 and
third party witnesses XW1 and 2. On evaluating the
evidence the rent control court came to the conclusion that
the area already available with the landlord which was an
area of 7.2 meters x 4.5 meters (roughly 300 sq.ft) is
sufficient for the landlord to conduct the agency of Lakshmi
motor pumps. Noticing that the tenant has availed a bank
loan for the business conducted by the tenant the court
concluded that if the tenant is evicted it will become
impossible for the tenant to clear the bank’s dues. On that
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reasoning the court found that the hardship to the tenant
would outweigh the advantage if any the landlord may gain
and the rent control petition was dismissed.
3. The appellate authority under the impugned
judgment made a thorough reappraisal of the evidence and
reversed the findings of the Rent Control Court. That
authority found relying on various decisions of this court
that for establishing the bonafides of a need for additional
occupation under sub section 8 of section 11 and concluded
that the need for additional occupation was bonafide. To
find that the landlord needs additional accommodation
commission reports were relied on apart from the testimony
of Pws.1 to 3. The appellate authority would analyse the
advantage which would be gained by the landlord for getting
eviction and the hardship which the tenant may sustain by
the order of eviction and came to the conclusion that the
advantage to the landlord will outweigh the apparent
hardship to the tenant. Thus the appellate authority
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reversed the decision of the Rent Control Court and an order
of eviction was passed under sub section 8 of section 11.
4. In this revision under section 20 various grounds
have been raised assailing the judgment of the appellate
authority and Sri.V.Chitambaresh, senior counsel for the
revision petitioner addressed us on the basis of all those
grounds. Learned senior counsel read over to us the order
of the rent control court as well as the judgment of the
appellate authority. Counsel submitted that unlike the order
of the rent control court which is a reasoned order the
judgment of the appellate authority contains only excerpts
from certain judicial precedents and no finding has been
entered by the appellate authority to the effect that the
need for additional accommodation is bonafide. According
to the learned senior counsel the evidence on record will not
justify the conclusion that the need for additional
accommodation is a bonafide one and there was no warrant
for interference. All the arguments of the senior counsel
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could be met by Sri.Raja Vijayaraghavan, learned counsel
for the respondent who supported the judgment of the
appellate authority on various reasons. Apart from
supporting the impugned judgment on the reasons stated in
the judgment and the various judicial precedents referred to
therein, Mr.Raja reminded us about the attenuated nature
of our jurisdiction. According to him, the nature of
jurisdiction is revisional and it cannot be stated that there is
irregularity, illegality or impropriety as envisaged by
section 20 in the judgment of the appellate authority. We
have considered the rival submissions of the counsel. We
have scanned the judgment of the rent control appellate
authority. We have also considered those items of
evidence to which our attention was drawn.
5. As rightly argued by the learned counsel for the
respondent the jurisdiction in which we presently sitting is
revisional in nature. Under the statutory scheme the Rent
Control Appellate Authority is the final court on facts. This
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court under section 20 is not normally accepted even to
reappraise the evidence. Of course in this particular case
since the findings are divergent there may be justification
for reappraisal of the evidence and that is why we have
considered the evidence. We find that the finding of the
appellate authority is bonafide one is founded on evidence
which is available on record. PWs.1 and 2 gave convincing
evidence to the effect that they intend to expand their
business by conducting agency of Lakshmi brand water
pumps. Ext.A5 was the clear evidence in support of their
claim that they have already secured agency. Ext.A5 was
duly proved before the rent control court by examining its
author. The total area presently under the possession of the
landlord is only about 300 sq.feet. We feel that the case
that for conducting additional business of agency in motor
pumps, the landlord requires additional space of 250 sq.ft
is reasonable in all standards. The bonafide requirement
whether it is under section 11(3) OR 11(8) only means a
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reasonable requirement. We are of the view that the
learned appellate authority which is the final court on facts
under the statutory scheme was justified in concluding that
the need for additional occupation is bonafide.
6. It is trite that the standards of evidence required for
establishing bonafides of a need for additional
accommodation under subsection(8) of Section 11 are not
so rigorous as those required for establishing bonafide need
under subsection (3) of Section 11. We are convinced that
applying those standards the finding of the Appellate
Authority that the landlord needs the petition schedule
building for additional accommodation for their personal use
is a bonafide one which is liable to be rejected in terms of
subsection (10) of Section 11 for want of bonafides.
However, it is now necessary to examine whether the
landlord in this case has passed the test of the first proviso
to subsection (10) of Section 11, i.e., whether the hardship
which the tenant may sustain will outweigh the advantages
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which the landlord may get by ordering eviction. We find
that the Appellate Authority has considered the question of
comparative advantages and hardships also. The Appellate
Authority rightly noticed that there is burden on both sides
to adduce evidence regarding the respective
advantages/hardships to be gained or sustained by them by
the order of eviction. The Appellate Authority has
reappraised the evidence in the context of the proviso to
subsection (10) of Section 11 also. The Appellate Authority
found that the tenant has not produced any documents
which will show as to what is the income derived by him
from the business carried on in the premises. The Appellate
Authority rightly found that the insistence of the tenant to
continue in this building is on the reason that unless the
tenant continues business in this building itself he will not
be able to discharge the debts he has incurred with his
business. According to the Appellate Authority, the tenant
having not produced evidence showing as to what is the
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income from the business cannot claim to have proved the
justification for insistence of continuing in this building.
One reason on which the Rent Control Court found that the
tenant will have to suffer hardship is that the tenant will
have to shift his business to another building. The Appellate
Authority rightly found that the shifting of business is the
inevitable result of any eviction order and that alone cannot
be a criterion to hold that hardship will be sustained by the
tenant. The Appellate Authority rightly took the view that
any hardship which the tenant may suffer due to shifting
will be alleviated if he is able to secure another building for
conducting his business. Noticing that there was no
evidence adduced by the tenant to show that other buildings
are not available in the locality, the Appellate Authority
concluded that the hardship which the tenant may suffer
because of the eviction order will not outweigh the
advantages to be gained by the landlord. We are of the
view that the above conclusion of the Appellate Authority is
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quite reasonable and does not suffer from illegality,
irregularity or impropriety as envisaged by Section 20 of Act
2 of 1965. The result of the above discussion is that the
RCR will fail and will stand dismissed. However, we feel
that on the facts and circumstances attending on this case
there is justification for grating a fairly long period to the
tenant to vacate the premises. Hence even as we dismiss
the RCR, we direct the execution court not to order and
effect delivery of the petition schedule building till 31-03-
2011 subject to the following conditions:
(1) The revision petitioner shall file an affidavit before
the execution court within two months from today
undertaking to give peaceful surrender of the petition
schedule building to the respondent on or before 31-03-
2011. Through the affidavit it will also be undertaken that
arrears of rent due in respect of the building will be
discharged within one month from today and that
occupational charges at the current rent rate will also be
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paid without fail till such time as actual surrender of the
building is made. It is made clear that the revision
petitioner will be entitled for the benefit of time granted only
if he files the affidavit on time.
PIUS C.KURIAKOSE, JUDGE
C.K. ABDUL REHIM, JUDGE
pmn/ksv