IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 313 of 2008()
1. K. SUGAVATHY,
... Petitioner
Vs
1. THADIPPARAMBATH KUNHIRAMAN,
... Respondent
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :03/06/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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R.C.R.No. 313 OF 2008
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Dated this the 3rd day of June, 2009
ORDER
Pius.C.Kuriakose, J.
A tenant who has suffered an order of eviction on the grounds of
additional accommodation ( Section 11(8) ) and cessation of
occupation ( Section 11(4)(v) has filed this petition under Section 20 of
Act 2 of 1965. In fact order of eviction was passed under Section 11(2)
(b) also, but it is conceded before us that the said ground no longer
survives since by payment of arrears of rent the order of eviction
passed under Section 11(2)(b) is being vacated.
2. The case of the landlord in the context of the ground of
cessation of occupation was that the building was being used by the
tenant for residential purposes and that the tenant having already
acquired another residential premises, has ceased to occupy the
building continuously for more than six months without any reasonable
cause. The above case was stoutly denied by the tenant who contended
that apart from residing in the building, her husband who is a head load
worker in the town is occasionally roasting ground nuts so that the
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tenant can sell the same in the bus stand and other locations in the
town.
3. The case projected by the landlord in the context of ground
under Section 11(8) was that the landlord is in occupation of another
portion of the larger building of which the petition schedule building is
also a part and in that portion he is conducting a hotel by name ‘Hotel
Highland’ and further that the landlord needs possession of the petition
schedule building also so that he can expand his hotel business. This
case was also stiffly denied by the tenant who contended alternatively
that at any rate by getting possession of the petition schedule building,
which is very small, the avowed purpose of additional accommodation
for expansion of hotel business is not going to be accomplished. The
tenant contended that the hardships which will be occasioned to her by
the eviction will out weigh the advantages which may enure to the
landlord by securing eviction.
4. At trial, the evidence before the Rent Control Court
consisted of Exts.A1 to A5, Ext.C1 Commissioner’s report , testimonies
of PWs 1 and 2, Exts.B1 to B12 and the testimony of RW1. Ext.A1
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3
was a registration copy of the rent chit executed between the
predecessors in interest of the parties. On an evaluation of the
evidence, the Rent Control Court found that the landlord’s need for
additional accommodation is bonafide and also that the advantages
which will enure to the landlord by getting eviction will out weigh the
hardship which may be occasioned to be tenant. Accordingly, eviction
order was passed under Sub Section 8 of Section 11. But relying on
Ext.C1 Commissioner’s report, which was filed by the Commissioner
on the basis of a surprise inspection reporting that during inspection the
husband of the tenant was seen roasting ground nuts, the learned Rent
Control Court found that the tenant had not ceased to occupy the
premises and that the tenant continues to occupy the premises for non
residential purposes. On that basis, order of eviction was declined
under Clause 5 of Sub Section 4 of Section 11.
5. The tenant preferred appeal to the Rent Control Appellate
Authority as R.C.A.No.79/2007 and the landlord filed cross objections
to the same. The appeal and the cross objections were considered
together by the learned Appellate Authority which under the impugned
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judgment has allowed the cross objections and dismissing the appeal
preferred by the tenant has now ordered eviction both under ground 11
(8) and 11(4)(v).
6. We have heard the submissions of Sri.P.B.Krishnan,
learned counsel for the petitioner and those of Sri.P.A.Harish, learned
counsel for the respondent. Our attention was drawn by Sri.Krishnan
to the various grounds raised in the memorandum of revision. He
would highlight before us Ext.A1 rent chit and submit that the very
purpose of the lease as per that admitted rent chit was to enable the
tenant to carry on business. According to him, even when the
Advocate Commissioner conducted a surprise inspection of the
premises without notice, it was found that the tenant’s husband was
roasting ground nuts. Sri.Krishnan submitted that the Rent Control
Appellate Authority has not even found that the statutory eviction
ground under Clause 5 of Sub Section 4 of Section 11 i.e. cessation of
occupation continuously for more than six months without reasonable
cause – exists in this case. The appellate authority according to the
learned counsel has only found that the tenant has ceased to reside in
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5
the petition schedule building. According to the learned counsel, even
if it is assumed that the tenant is not residing in the petition schedule
building, a ground under Section 11(4)(v) will not be established since
in this particular case the purpose of the lease was business. The order
of the Appellate Authority under Sub Section 8 of Section 11 was
assailed even more forcefully by Sri.P.B.Krishnan. He submitted that
the preliminary question to be considered is whether the need for
additional accommodation is bonafide. Before answering that
question, it is necessary that the court examines as to what is the extent
of accommodation already available with the landlord and as to
whether the said accommodation is insufficient to meet the
requirements of the landlord. This aspect of the matter according to the
learned counsel is capable of being proved by report of an Advocate
Commissioner on the basis of inspection. Ext.C1, learned counsel
would argue, will not of any assistance of the court in this context.
Learned counsel submitted that it was significant that despite having
taken a Commissioner to the building, the landlord did not want the
commissioner even to enter into the building under the possession of
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the landlord wherein the landlord is presently conducting Hotel
Hyland. Learned counsel also highlighted the report of the
Commissioner that two rooms are actually vacant. If this is true, the
need for additional accommodation will have to be found to be without
bonafides. As for the question of the benefit of the proviso to Sub
Section 10 of Section 11, Sri.Krishnan submitted that the above
question can arise only if it is found that the need for additional
accommodation is bonafide.
7. Sri.P.A.Harish would oppose all the submissions of
Sri.P.B.Krishnan. He took us through the oral evidence adduced by
AW1 and RW1 as well as AW2, the Advocate Commissioner. He also
took us to the counter statement filed by the tenant and highlighted that
the tenant has not specifically contended that the landlord has already
in landlord’s possession enough space for accomplishing the avowed
need of additional accommodation projected.
8. We have anxiously considered the rival submissions
addressed at the Bar. We find much force in all the submissions of
Sri.P.B.Krishnan made in the context of the ground for eviction under
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clause 5 of Sub Section 4 of Section 11. Ext.A1 rent chit will show
that the purpose of the lease was commercial. This means that the
tenant is entitled to use the schedule building for commercial and trade
purposes. May be it is true that the tenant was as contended by herself
using the building mainly for residential purposes and the tenant is not
presently using the building for that purposes at all. But in order that a
ground for eviction under Section 11(4)(v) is made out, it has to be
shown that the tenant has ceased to occupy the premises continuously
for more than six months without reasonable cause for the purpose for
which the building was let out. Ext.C1 Commissioner’s report will
show that the tenant’s husband was roasting ground nuts in the
premises. Description of the petition schedule building will also show
that the building is essentially a commercial building and not a
residential building. Since it is evident that the tenant has not ceased
to occupy the building for the purposes for which the building was let
out under Ext.A1, it cannot be said that eviction ground under Section
11(4)(v) is established. The eviction order passed under Section 11(4)
(v) is liable to be vacated. We vacate the same.
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9. Coming to the ground of eviction under Sub Section 8 of
Section 11, it will be noticed immediately that both sides adduced
evidence in the context of proviso to Sub Section 10 of Section 11
which qualifies Sub Section 8 of Section 11. The landlord adduced
evidence to show that he will gain advantages by securing eviction and
the tenant adduced evidence to show that he will sustain hardship by
suffering eviction. Going by the contention raised by the tenant, the
building was being used despite its commercial nature for residential
purposes. It has become evident in the case that the building is no
longer being used for residential purposes. As for the purposes of
trade, it should be seen that sale of roasted ground nuts if at all is being
conducted in the town not by the tenant but by the husband of the
tenant perhaps on behalf of the tenant. The activities which is being
carried on in the building is only roasting of ground nuts. Of course,
Sri.Harish submitted that Ext.A1 prohibits having any fire hearth or
fire grate in the premises. We are not prepared to agree with
Sri.Harish. Roasting ground nuts by using Kerosene stove will not
amount to violation of the above condition in Ext.A1. But it is seen
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from the evidence that sale of ground nuts is not the main activity of
the husband of the tenant. He is a head load worker in the town and the
evidence is to the effect that only when he is without such work that he
engages himself in the activity of sale of ground nuts on behalf of his
wife. Thus by the order of eviction to be passed under Section 11(8),
the tenant is not going to be deprived of the main means of livelihood.
It will still be possible for the tenant to pursue the sale of ground nuts-
her additional means by making alternate arrangements. But the
advantages which will enure to the landlord by securing eviction is that
he who is presently conducting Hotel in a building of moderate size
will be able to conduct hotel in a bigger way in a larger building. Thus
the landlord will certainly gain clear advantages by securing eviction.
We therefore have no difficultly at all to confirm the finding of the
Rent Control Appellate Authority and the Rent Control Court that the
petition under Sub Section (8) of Section 11 is not liable to be rejected
on the basis of proviso to Sub Section (10) of Section 11.
10. But as rightly submitted by Sri.P.B.Krishnan, before the
authorities examine the question of comparative advantages and
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hardships, the more important aspect to be considered is whether the
landlord has proved that he needs additional accommodation for
personal use. The word ‘bonafide’ is not used in Sub Section 8 of
Section 11, but since Sub Section 8 of Section 11 is qualified by Sub
Section 10 of Section 11, it is necessary that the landlord establishes
before the Rent Control Court that the need is bonafide. We find force
in the submissions of Sri.P.B.Krishnan that in order that it can be found
that the need for additional accommodation is bonafide, an enquiry
necessarily has to be conducted as to what is the extent of
accommodation presently available with the landlord and as to what is
the landlord’s requirement for additional accommodation. The
evidence in this case is totally insufficient to prove the aspect of the
extent of accommodation presently available with the landlord. The
evidence of the landlord as AW1 is only to the effect that there are 11
tables in Hotel Hyland building. That may not be enough as already
stated to prove that the landlord is in need of additional
accommodation. This is an aspect which can be of better quality
evidence. Significantly even the Advocate Commissioner who
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submitted Ext.C1 was not asked to inspect the building in the
possession of the landlord so that the court will get a report as to the
area of that building. Thus in our opinion, the evidence available in
this case so far, falls short of holding correctly that the landlord needs
additional accommodation for his personal use. We are therefore
inclined to interfere with the finding of the authorities below that the
landlord needs additional accommodation for personal use. We set
aside the order of the Rent Control Appellate Authority that the
landlord needs additional accommodation for personal use and remand
the RCA to the Rent Control Appellate Authority. In terms of Section
23, Section 18(3) of Act 2 of 1965 and Rule 16(2) of the Building
(Lease and Rent Control) Rules, the Appellate Authority’s power to
hold enquiry is co-terminus with that of the Rent Control Court itself.
Accordingly we direct the Appellate Authority to permit the landlord to
apply for issuance of a Commission for local inspection of the building
in the possession of the landlord and the petition schedule building so
that the said authority will have a satisfactory report as to the extent of
the accommodation presently available with the landlord for the
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purpose of deciding objectively whether the landlord’s case that he
needs additional accommodation for the expansion of his Hotel Hyland
business is bonafide. The Advocate Commissioner to be appointed by
the Appellate Authority should also be directed to permit both sides to
submit work memos before him during inspection so that on all
relevant matters, evidence will be made available to the Rent Control
Appellant Authority. The appellate authority shall permit both sides to
file objections if any to the Commissioner’s report and if it become
absolutely necessary, the Appellate Authority can permit examination
of the Commissioner also for the purpose of substantiating the
objections filed. The appellate authority will also for the purpose of
deciding the issue whether the landlord’s claim for additional
accommodation is bonafide permit both parties to adduce documentary
evidence. The Rent Control Appellate Authority will expedite matters
and ensure that enquiry is completed and a revised judgment is passed
in the appeal at the earliest and at any rate within four months of
receiving a copy of this judgment.
11. It is clarified that the finding entered herein above that the
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tenant is not entitled to the protection of the proviso to Sub Section
(10) of Section 11 shall not be understood as expression of any opinion
by this court regarding the bonafides of the landlord’s claim for
additional accommodation.
Transmit the records forthwith to the Appellate Authority. The
parties will enter appearance before the Appellate Authority on
22/06/2009.
PIUS.C.KURIAKOSE
JUDGE
P.Q.BARKATH ALI
JUDGE
sv.
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