High Court Kerala High Court

S.R.Radhakrishnan vs Sureshkumar on 24 February, 2010

Kerala High Court
S.R.Radhakrishnan vs Sureshkumar on 24 February, 2010
       

  

  

 
 
  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.
            ------------------------------------------
                    RCR. No. 161 of 2009
           -------------------------------------------
          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