High Court Kerala High Court

K. Sugavathy vs Thadipparambath Kunhiraman on 3 June, 2009

Kerala High Court
K. Sugavathy vs Thadipparambath Kunhiraman on 3 June, 2009
       

  

  

 
 
  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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2

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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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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