IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 RCRev..No. 161 of 2009() ----------------------------------- RCA.48/2007 of DISTRICT COURT,KOLLAM OP(BRC).15/2001 of PRL.MUNSIFF COURT, KOLLAM( RENT CONTROLLER, KOLLAM. .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------ S.R.RADHAKRISHNAN, S/O.R.RAVEENDRAN UNNI RESIDING AT ANANDA BHAVAN, KUREEPUZHA, KAVANAD P.O., SAKTHIKULANGARA, KOLLAM. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE BY ADV. MR.K.SIJU RESPONDENT(S): APPELLANT/PETITIONER ---------------------------- SURESHKUMAR, S/O.PEETHAMBARAN, RESIDING AT MUTHODAM, PAIKKADA, KOLLAM. BY ADVS. MR.V.V.RAJA MR.M.T.SURESHKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.2036/2009 IN RCR. NO.161/2009 DISMISSED 24/02/2010 SD/- PIUS C.KURIAKOSE, JUDGE SD/- C.K.ABDUL RAHIM, JUDGE TRUE COPY P.S. TO JUDGE tss 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 RCR.161/09 - 2 - 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 RCR.161/09 - 3 - 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 RCR.161/09 - 4 - 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 RCR.161/09 - 5 - 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 RCR.161/09 - 6 - 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 RCR.161/09 - 7 - 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 RCR.161/09 - 8 - 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 RCR.161/09 - 9 - 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 RCR.161/09 - 10 - 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 RCR.161/09 - 11 - 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 RCR.161/09 - 12 - 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