IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 350 of 2010()
1. P.S.BABU, AGED 58, S/O. PANDARAN
... Petitioner
Vs
1. G.KRISHNAN, S/O. LATE GOPALAKRISHNAN
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.JIJO PAUL
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :24/11/2010
O R D E R
PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ.
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R.C.R. NO.350 OF 2010 &
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DATED THIS, THE 24TH DAY OF NOVEMBER, 2010.
O R D E R
Pius C. Kuriakose, J.
Under challenge in this revision filed under Section 20 of Act 2/65 is
the judgment of the Rent Control Appellate Authority, Thrissur, confirming
the order of eviction passed against the revision petitioner under subsection
8 of Section 11 of the Act. The need projected by the landlord in the Rent
Control Petition, which is subject matter of the present revision as well as
in two other Rent Control Petitions which the landlord had filed in respect
of the adjacent rooms, was that he need the three rooms for the purpose of
starting a hotel which will cater to the needs of the occupants of the lodge
which he is conducting in the remaining portions of a three storied building
as well as to general public. The above need was raised as a need for
additional accommodation for personal use of the landlord who himself is
conducting lodge in the other portions of the building. The bona fides of the
need was disputed and it was contended that at any rate, the hardship to be
caused to the revision petitioner/tenant by granting eviction will outweigh
the advantage of the respondent/ landlord .
2. The evidence in the case consisted of Exts.A1 to A4 and PW.1 on
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the side of the landlord and Exts. B1 and the oral evidence of RW.1 on the
side of the tenant. Court exhibits Ext.C1 commission report and the oral
evidence of the Commissioner as CW.1. were also recorded. The Rent
Control court after evaluating the evidence on record, came to the
conclusion that the need for additional accommodation projected by the
landlord is a bona fide one. It was also concluded that the advantages
which the landlord may acquire by getting an order of eviction will
outweigh the hardship which the tenant may sustain, as the tenant is not
conducting much business in the petition schedule premises and it had
come out in evidence that other suitable buildings are available for the
tenant in the locality.
3. The revision petitioner preferred appeal R.C.A. 67 of 2008 before
the Rent Control Appellate Authority. He also filed an application for
issuance of a commission stating that the landlord has already started the
proposed hotel and hence the need as projected has been completely
accomplished and it is not necessary to confirm the eviction order.
Considering the commission application, an advocate was appointed as
commissioner who submitted Ext.C2 report. Ext.C2 report was to the effect
that the landlord had actually started a hotel. The learned Appellate
Authority made a reappraisal of the entire evidence, which was made
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available before the trial court, as well as Ext.C2. The Appellate authority,
however, would confirm the findings of the Rent Control Court and
dismissed the appeal.
4. In this revision under Section 20 of Act 2/65, various
grounds have been raised assailing the judgment of the Appellate
Authority. Sri. Sreekumar would address strenuous arguments before us.
He submitted that the one need which was projected in all the three Rent
Control Petitions was that a hotel is to be started for the benefit of the
occupants of the lodge conducted by the landlord. Since Ext.C2 will show
that a fairly large hotel has already been started, the above need has ceased
to exist. Since the need projected has ceased to exist, it is absolutely
unnecessary to confirm the order of eviction passed against the revision
petitioner. Sri. Sreekumar further submitted that consideration of
implications of the proviso to sub-section (10) of Section 11 by the
statutory authority was erroneous. It was necessary that the statutory
authorities weighed the advantages which will enure to the landlord by
getting eviction against the hardship which will be sustained by the tenant
and as that has not been done in this case, the impugned judgment is
vitiated.
5. All the arguments raised by Sri. Sreekumar were resisted by Sri.
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Jijo Paul. He submitted that the need which was projected in the three Rent
Control Petition was the need to conduct a hotel by utilizing the area of the
three rooms which were the subject matter of the Rent Control Petitions.
The biggest among the three rooms could be got vacated during the
pendency of these proceedings. Once possession of that room was obtained,
the landlord demonstrated that the need projected by him in the R.C.P. was
bona fide by starting the hotel. But the hotel presently started does not have
direct access from Kuruppam road, which is situated adjacent to the petition
schedule room and the hotel presently has only the frontage of a lane. To
prevent the landlord from getting possession of the room which is the
subject matter of the appeals pending before the Rent Control Appellate
Authority and the schedule room, it is absolutely necessary to show that
the landlord has accomplished the need projected in the three Rent Control
Petitions fully and finally. The learned counsel submitted that the
operation of the proviso to sub-section (10) of Section 11 has been correctly
considered by the statutory authorities and accordingly, found against the
tenant and there is no warrant for interference with those findings.
6. We have very anxiously considered the various submissions
addressed with reference to the judgment of the Appellate Authority as well
as the order of the Rent control Court. We have also considered the
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pleadings to which our attention was drawn by the counsel. As the
jurisdiction in which we are presently sitting is revisional in nature, this
Court does not normally reappraise the evidence for the purpose of
deviating from the conclusions arrived at by the statutory authorities.
Having gone through the judgment of the Appellate Authority, we are of the
view that the reasons given are cogent and the findings are based on
evidence available on record. True, as submitted by Sri. Sreekumar, it is not
stated in so many words in the R.C.P. that unless there is direct access from
Kuruppam road on which the petition schedule building is situated, it will
not be possible for the landlord to conduct the proposed hotel. But then,
when the landlord instituted three rent control petitions including the one in
respect of the petition schedule building, the only one room which abuts
Kuruppam road directly, it has to be taken that the landlord’s case is that
unless he gets possession of the petition schedule building abutting the
Kuruppam road, he will not be able to conduct the proposed hotel in the
manner he needs. We notice from the judgment of the Appellate Authority
that the said authority has critically analysed Ext.C2 commission report and
found that merely because the landlord has started the proposed hotel, it
cannot be said that the need has become completely accomplished. By
getting possession of the room where the hotel is now functioning, the need
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projected in the R.C.P. has become accomplished only in part. The said
need will become completely accomplished if the landlord get possession of
the present room also.
7. As regards the grievance voiced by Sri. Sreekumar that the proviso
to sub-section (10) of Section 11 has not been considered, we are of the
view that the above grievance is not at all relevant as Rent Control Court
has considered all the aspects of the matter and the Appellate Authority has
confirmed the findings of the Rent Control Court. The above discussions
will lead necessarily to the dismissal of the Rent Control Revision Petition.
8. Since the learned counsel for the revision petitioner sought for
grant of an entirely long period for surrendering peaceful possession of the
petition schedule premises, we direct the execution court to keep in
abeyance all proceedings for delivery, for a period of one year from today
till 30.11.2011, subject to the following conditions:
The revision petitioner shall file an affidavit before the
execution court within a period of three weeks from today, undertaking to
give peaceful surrender of the petition schedule premises to the respondent
on or before 30.11.2011, undertaking further to discharge the arrears of
rent, if any, within a period of one month and that he shall continue to pay
occupation charges at the current rate without any default. We make it
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clear that the revision petitioner will get the benefits of this order only if he
files the undertaking within the stipulated time and the undertaking is
honoured. We further clarify that we have not expressed any opinion
regarding the Rent Control Appeal pending before the Appellate Authority.
PIUS C KURIAKOSE,
(JUDGE)
P.S. GOPINATHAN,
(JUDGE)
knc/-