IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 257 of 2007()
1. A.RAVEENDRAN, S/O CHOYIKUTTY,
... Petitioner
Vs
1. SUDHAKARAN, S/O APPU,
... Respondent
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.T.R.RAVI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :02/06/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. No.257 of 2007
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Dated this the 2nd day of June, 2010
O R D E R
—————
Pius C.Kuriakose,J.
Under challenge in this revision filed by the tenant
is the order of eviction passed by the Rent Control Appellate
Authority for the first time under Section 11(8) of Act 2 of
1965. The petition schedule building is ground floor portion
of a two-storied building. In the first floor portion, a tailoring
business is being conducted and the need projected invoking
Section11(3) was that in the ground floor portion a textile
business is to be conducted. The Rent Control Court on
evaluating evidence that was adduced by the party came to
the conclusion that the need projected under Section 11(3) is
bonafide and that the tenant is not entitled for the protection
of the provisos. Accordingly the order of eviction was passed
under Section 11(3). The ground which was prominently
urged by the revision petitioner before the appellate authority
was that on the fact situation which obtains in the case the
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apposite ground for eviction if at all the need is bonafide is
the ground under Section 11(8). This argument was raised
since it had become evident that the tailoring business being
conducted in the first floor was a joint venture of the husband
and the wife and the proposed textile business was also
expected to be conducted as a joint venture. Whatever that
be, the above argument that the petition can lie under Section
11(8) and not under Section 11(3) found favour with the Rent
Control Appellate Authority. What the Rent Control Appellate
Authority did was to accept the above argument and proceed
to pass an order of eviction under Section 11(8) modifying the
order of eviction which had been passed by the Rent Control
Court under Section 11(3).
2. In this revision under Section 20 various grounds
have been raised and Sri.C.P. Mohammed Nias, learned
counsel for the revision petitioner submitted that serious
prejudice has been caused to the tenant by what was done by
the Appellate Authority. The learned counsel argued that the
revision petitioner was never called upon to defend a petition
under Section 11(8). Though the standards of bonafides
required for succeeding in a petition under Section 11(8) may
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not be so stringent as in a case under Section 11(3), grounds
under Section 11(3) and 11(8) are two independent grounds
and the considerations including the aspects to be taken into
account after findings are entered regarding bonafides of the
need are different. If the revision petitioner had been called
upon to defend a claim under Section 11(8), he would have
certainly contended that even if the need is bonafide, the
advantages which the landlord will gain will not outweigh the
hardship which the tenant will sustain. Since the Rent
Control Petition was not under Section 11(8) the revision
petitioner was not able to take up such a contention and much
less adduce evidence regarding the hardship which the tenant
will sustain. Strong reliance was placed by Mr.Nias on an
unreported judgment of this court in RCR.340/2005 and it was
submitted that in the fact situation which obtains in the
present case what the learned Appellate Authority should
have been done was to dismiss the Rent Control Petition and
not to allow the Rent Control Petition on a ground which had
not been invoked.
3. Meeting the arguments of Mr.Nias, Sri. T.R.Ravi,
learned counsel for the landlord submitted that since the
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Rent Control Court had passed an order of eviction under
Section 11(3) and since the ultimate order passed by the
Appellate Authority (the impugned judgment) is in favour of
the respondent, the respondent is entitled to canvass for
restoration of the order of eviction passed by the Rent
Control Court. According to Mr. Ravi, the apposite eviction
ground which is available in the case of the landlord is the
ground which was upheld by the Rent Control Court. In this
context he would draw our attention to the pleadings and the
evidence and also the findings entered by the Rent Control
Court.
4. We have anxiously considered the rival
submissions addressed at bar. We have gone through the
Rent Control Petition and found that eviction has been sought
for by the landlord specifically under Section 11(3). We also
find from the impugned judgment that a clear finding has
been entered by the learned Appellate Authority that the
eviction petition is maintainable under Section 11(8) only.
That finding, on re-appreciating the evidence appears to be a
reasonable one. In fact, it is evident that the tailoring
business which is being conducted in the first floor is joint
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business of the petitioner and his wife and the textile business
which is proposed to be conducted is also a joint venture of
the husband and wife. Textile business is proposed (it is
discernible from the evidence) as some sort of an allied
business to the on going business of tailoring. At any rate, we
do not find any illegality, irregularity or impropriety as
envisaged by Section 20 of Act 2 of 1965 about the finding of
the Appellate Authority that the proper eviction ground to be
invoked is sub-section (8) of Section 11.
5. The question which now arises is whether the
Appellate Authority was justified in ordering eviction under
sub-section (8) of Section 11 taking the view that since the
standards of bonafides to be established in a case under
Section 11(8) are liberal, prejudice will not be caused to the
tenant by ordering eviction under Section 11(8). True, the
standards of bonafides are liberal in a case under 11(8) in
comparison to a case under 11(3). But then 11(8) unlike 11(3)
is qualified by the proviso to sub-section (10) of Section 11. It
is trite that under the proviso to sub-section (10) of Section 11
both the landlord and the tenant have burden of proof. The
landlord will have to adduce evidence regarding the
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advantages to be gained by the landlord and the tenant will
have to adduce evidence regarding the hardships to be
sustained by the tenant. In the instant case, the tenant was
never called upon to defend a case under 11(8). The
argument of Mr.Niyas that prejudice has been occasioned to
the tenant by the order of eviction passed by the Rent Control
Appellate Authority under sub-section (8) of Section 11 in the
absence of pleadings is meritorious. We are therefore
inclined to interfere with the judgment of the Appellate
Authority.
6. We notice that the building in question is situated
in a commercially very important point of Calicut City
Corporation. The current rate of rent viz., Rs.250/- per
mensem was fixed about 10 years ago. This rate, as rightly
submitted by Mr.T.R.Ravi, is far below the market rate. We
feel that even as the Rent Control Court is reconsidering the
case pursuant to this order the rent should be tentatively re-
fixed.
7. The result of the above discussion is as follows.
The impugned judgment is set aside. RCP.62/2004 is
remanded to the Principal Rent Control Court, Kozhikode.
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That court is directed to permit the respondent to amend the
pleadings in the Rent Control Petition. If pleadings are
amended the revision petitioner should be allowed to submit
counter pleadings and parties shall be allowed to adduce
whatever further evidence they want to. Rent is tentatively
re-fixed with effect from 1.7.2010 at Rs.1000/- per mensem.
We make it clear that the above re-fixation is only tentative
and will be subject to regular fixation of fair rent by the Rent
Control Court upon motion by either of the parties if they
want to. Rent Control Court will dispose of the RCP and pass
revised order within five months of receiving copy of this
order.
PIUS C.KURIAKOSE, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb/ksv