IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 CRP.No. 857 of 2003() --------------------- RCA.42/2001 of RENT CONTROL APPELLATE AUTHORITY & DISTRICT COURT,KOZHIKODE RCP.79/1998 of ADDL.MUNSIFF'S COURT-I (RENT CONTROL COURT), KOZHIKODE .................... REVN. PETITIONER: RESPONDENT/RESPONDENT ----------------------------------------------------- PADIYATH BALAN, AGED 57 YEARS, S/O.BAPPU BUSINESS, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT: APPELLANT/PETITIONER -------------------------------------------- ALLAMBATHUR GOPALAKRISHNA MENON, S/O.KUNHIKANNAN NAIR, RESIDING AT "KRISHNA VIHAR", BUSINESS, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO.2067/03 IN C.R.P.NO.857/03 //DISMISSED// SD/- PIUS C.KURIAKOSE, JUDGE. 3.2.09 SD/-M.C.HARI RANI, JUDGE. PIUS C.KURIAKOSE & M.C.HARI RANI, JJ. -------------------------------------------------- C.R.P.No. 857 OF 2003 ----------------------------------------------------- DATED THIS THE 3rd DAY OF FEBRUARY, 2009 O R D E R PIUS C.KURIAKOSE, J. The defeated tenant, against whom order of eviction has been passed on the grounds under sections 11(3) and (8) of Act 2 of 1965 is the revision petitioner. It is conceded by both sides that the Rent Control Petition is legally maintainable only on the ground under Section 11(8) and it is sufficient that this Court confines enquiry to the order of eviction granted under Section 11(8). As for the need for additional accommodation under Section 11(8), it is concurrently found by the Rent Control Court and the Appellate Authority that the need projected in the R.C.P. for additional accommodation is a bona fide one. Having regard to the contours of our jurisdiction under Section 20, we do not find any ground for interfering with the said finding, which is founded on evidence. 2. Learned counsel for the petitioner would highlight before us that the court below erred in its conclusions on the CRP.No.857/03 -2- question of comparative advantage/hardship of the landlord and the tenant envisaged by the first proviso to Section 11(10). Drawing our attention to the judgment of this Court in Pakran v. Kunhiraman Nambiar (2004(1) KLT 824), of which one of us (PCK(J) was a party, it was submitted by the learned counsel for the revision petitioner that unlike a case under Section 11(3), in cases under Section 11(8), the comparative financial position of the landlord and the tenant will have some relevance. The counsel also submitted, referring to other authorities, that unlike the question of eligibility of the tenant for the protection of the 2nd proviso to Section 11(3), on the question of comparative advantage and hardships coming under the first proviso to Section 11(10), the burden of proof is equal. The landlord has the burden to show by adducing cogent evidence that the eviction will be of advantageous to him and the tenant's burden is only to adduce counter evidence to show that the advantage which the landlord gains, will not outweigh the hardship to be suffered by him. Learned counsel for the revision petitioner submitted that even though the landlord stated in evidence that if eviction is obtained, he will be in a position to conduct the business more profitably, absolutely no evidence was adduced by the landlord to CRP.No.857/03 -3- show as to what is the profit presently derived and what is the profit expected on getting eviction. The learned counsel drew our attention to the relevant portions of PW1's evidence. Counsel referred to the evidence adduced by the tenant and submitted that the tenant has given cogent evidence to the effect that if he is ordered to be evicted, his life will come to a stalemate, since no other suitable buildings are available in the locality and also that he is not in a position to spend huge amounts by way of 'pakidi'. Without paying pakidy, it will not be possible for him to get other buildings on lease. The question to be considered in the context of the first proviso to Section 11(10) is availability of buildings which is similar to the building from where he is sought to be evicted, so submitted the learned counsel for the petitioner. 3. Drawing our attention to the judgment in S.Sivasubramanya Iyer v. S.H.Krishnaswamy (AIR 1981 Kerala 57). Mr.Parthasarathy, learned counsel for the landlord argued that the standards of bona fides to be established in the case for additional accommodation coming under Section 11(8) are not so rigorous as in cases coming under Section 11(3) and additional accommodation can be allowed to the landlord even if the same amounts to a luxury, provided the claim is not actuated CRP.No.857/03 -4- by any oblique motive. The counsel submitted that if eviction of the schedule building is also obtained, the resultant situation will be that the landlord will be able to conduct business in a building having frontage of two roads. The building was hitherto enjoying the frontage of only one road. Doing business in a building having access to two roads, will result in boosting up the profit. Counsel referred to the commissioner's report and submitted that no serious objections were raised to the Commissioner's report that there is paucity of space in the landlord's premises. It is obvious that if additional space is obtained, the landlord will be able to conduct the business more conveniently and profitably. The landlord cannot be blamed for not having given evidence as to the estimated increase in profit. The evidence of the landlord that he will gain more profit is convincing, so submitted Mr.Parthasarathy. The hardship which may be caused to the tenant on account of the eviction can be mitigated to a great extent if the tenant is able to obtain another premises. Referring to the evidence adduced by the tenant, learned counsel argued that the tenant has not conducted even a serious enquiry regarding the availability of other buildings. Counsel also submitted that it is clear from the evidence of the tenant that the CRP.No.857/03 -5- tenant has other sources of income to depend on, for his livelihood. 4. We have very anxiously considered the rival submissions addressed at the Bar. It is true that in the judgment in Pakran's case (2004(1) KLT 824) this Court has observed that unlike the second proviso to Section 11(3), in an enquiry into the first proviso to Section 11(10), the comparative financial position of the landlord and the tenant can have some relevance. But, in the instant case, what we notice is that neither sides have chosen to adduce evidence regarding the comparative financial position. In fact, it appears to us that the parties were more concerned with the tenant's eligibility under the second proviso to Section 11(3) as a result of which evidence came to be adduced by the parties in the direction of that proviso. On scanning the evidence which has come on record, what we notice is that the landlord who is at present doing business in a congested room which has frontage of only one road will be able to continue his business, if he succeeds in the RCP and to conduct his business in more spacious premises enjoying frontage of two roads. We do not find any effective cross-examination on the landlord's version that if he obtains eviction, he will be able to conduct business CRP.No.857/03 -6- more profitably. In the absence of any such cross-examination, we cannot blame the landlord for not having adduced evidence as to the profits which he expects to derive on obtaining possession of the schedule building also for the purpose of additional accommodation. As already noticed, the hardship which the tenant may suffer on account of the eviction will be mitigated to a very great extent, if the tenant is able to get another building in the locality. But, here again, the insistence of the tenant that he must get an exactly identical building in the exactly same locality cannot be entertained. Because, to insist for an exactly identical building in the exactly same locality is to insist for the impossible. The requirement of law is only that a building which is reasonably sufficient for the purpose of the tenant, ie; to continue the business which is carrying on in the schedule building should be available in the locality. The finding of the courts below that such a building is available is based on evidence including certified copies of property tax assessment registers, which offers conclusive proof in terms of Section 26 of the Kerala Buildings (Lease and Rent Control )Act, Of course, the tenant has got a case that for the other buildings available on lease at any rate he will have to shell out huge amounts by way CRP.No.857/03 -7- of 'pakidi' and to pay exorbitant amounts by way of rent. Regarding this aspect, there is only the ipse dixit of the tenant. The tenant would say that the buildings disclosed by the property tax assessment registers produced by the landlord are not suitable or that they are not available. Importantly, the tenant has not taken steps to examine the owners of those buildings. 5. On scanning the tenant's evidence, we are not inclined to think that the income which the tenant derives from the business carried on in the schedule building account for his only source for sustenance. The tenant's response to a question as to whether it will be possible for him to support himself and the members of his family with the income derived from his business was that he is unable to affirm one way or the other regarding the same. We are of the view that the finding of the Appellate Authority that the advantages will enure the landlord by getting eviction will outweigh the hardships which may be sustained by the tenant is reasonable and at any rate not vitiated by any illegality, irregularity or impropriety warranting correction under Section 20. 6. As a last request, the learned counsel for the petitioner sought for grant of time. Having considered all the CRP.No.857/03 -8- circumstances attending in the case, we feel there is justification for granting six months' time to the tenant for surrendering the building. Accordingly, even as we confirm the impugned order and dismiss the C.R.P., there will be a direction to the execution court to adjourn the execution petition to 4.8.2009 on condition that the petitioner files an affidavit before the execution court stating that he will discharge arrears of rent, if any, and will continue to remit the rent which falls due as and when the same falls due and that he will peacefully surrender the petition schedule building to the respondent-landlord on or before 3.8.2009. Such an affidavit shall be filed by the petitioner within two weeks from today. If the execution court notices such an affidavit, the E.P. will be adjourned. PIUS C.KURIAKOSE, JUDGE. M.C.HARI RANI, JUDGE. dsn