IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 RCRev..No. 31 of 2010() ----------------------- RCA.5/2005 of ADDL. DISTRICT COURT, PARAVUR RCP.25/2003 of MUNSIFF COURT,ALUVA .................... REVISION PETITIONER/APPELLANT/RESPONDENT --------------------------------------- K.S.ABDU, S/O.SAIDUKUTTY, AGED 59 YEARS, KUNNUMPURATH HOUSE, THOTTUMUGHAM KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV. SMT.AYSHA YOUSEFF SRI.V.K.SIDHIQUE SMT.SAJITHA SIDHIK RESPONDENT(S): RESPONDENT/PETITIONER --------------- ALIYAR, S/O. MUHAMMED, AGED 53 YEARS, KAMBAYIKKUDIYIL HOUSE, ERMATHALA KARA, ALUVA EAST VILLGE, ALUVA TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.31 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010 ORDER Basheer, J. Tenant of a commercial building is the revision petitioner. He has suffered an order of eviction under Section 11(8) of the Kerala Buildings ( Lease and Rent Control )Act 1965 ( herein after referred to as the Act). He impugns the said order contending inter alia that the Rent Control Appellate Authority has not properly adverted to or considered the comparative hardship of the petitioner as envisaged under Section 11(10) of the Act. 2. Is the above contention tenable ? 3. Shorn off unnecessary details, relevant facts which may be necessary for disposal of this case may be briefly noticed : The petitioner was inducted into possession of the tenanted premises in the year 1987 on a monthly rent of Rs. 725/-. Admittedly the building in question is the second room from the northern side facing the road. In other words, the adjacent room on RCR.No.31/2010 Page numbers the northern side is in the possession of the landlord/respondent. The landlord sought eviction of the tenanted building under Section 11(8) of the Act contending that he required the said building also for expansion of his business as agent of Gandhi Smaraka Grama Seva Mandiram. 4. The Rent Control Court allowed eviction under Section 11 (8) after a careful evaluation of the oral and documentary evidence adduced by the parties which comprised of the oral testimony of PW1, the landlord himself and his two witnesses and Exts.A 1 to A4 produced on his side and the evidence of RW1, the tenant and Ext.C1 and C1(a) report of the Advocate Commissioner and rough sketch respectively prepared by him. However, the Appellate Authority set aside the order of eviction and dismissed the eviction petition. 5. The above order of the Appellate Authority was reversed by this court in R.C.R.No.3/2006. While doing so, the Appellate Authority was directed to consider the case of the tenant in the light of the provisions contained in Section 11(10) of the Act. Accordingly the case was remitted to the Appellate Court for disposal in the above RCR.No.31/2010 Page numbers terms. The Appellate Authority after hearing the parties held that the revision petitioner is not entitled to get the benefit of the proviso to Section 11(10) of the Act and accordingly confirmed the order of eviction passed by the Rent Control Court. 6. It may at once be noticed that there is no serious dispute that the respondent/landlord is holding an agency for display and sale of various products of the Gandhi Smaraka Grama Seva Mandiram in the adjoining room situated on the northern side of the tenanted premises. Ext.C1 report of the Commissioner will support the above case of the landlord. Though it was contended by the petitioner/ tenant that the agency in the name of the landlord was for one year only, it had come out in evidence that the landlord was continuing with the said business as an agent even during the pendency of the eviction petition. The report of the Advocate Commissioner further revealed that the space now available with the landlord may not be sufficient enough for him to carry on his business and if the walls separating the two rooms is demolished, the landlord may get a spacious room for the purpose of his business. The Rent Control Court and the Appellate Authority have RCR.No.31/2010 Page numbers adverted to this aspect while appreciating the evidence adduced by the parties and particularly the report filed by the Commissioner. We have carefully perused the materials available on record in this regard. We are totally satisfied that the above concurrent finding entered by the two authorities below is eminently justified in the facts and circumstances of this case. 7. As mentioned earlier, this court had remitted the case back to the Appellate Authority on the previous occasion with a direction to consider the question whether the revision petitioner would get the benefit of the proviso to Section 11(10) of the Act. 8. Sub Section (10) of Section 11 postulates that the Rent Control Court shall make an order directing the tenant to put the landlord in possession of the building, if it is satisfied that the claim of the landlord under Sub Sections (3), (4) (7) or Sub Section (8), is bonafide . The first proviso under the above Section mandates that the Rent Control Court shall reject the application, if it is satisfied that the hardship which may be caused to the tenant by granting it will out weigh the advantage to the landlord, if claim for eviction is made RCR.No.31/2010 Page numbers under Sub Section (8) of Section 11. 9. The Appellate Authority as directed by this court has specifically considered the above aspect in the light of the evidence available on record. In this context, the Appellate Authority noticed that in Ext.A2 communication sent by the Gandhi Smaraka Grama Seva Mandiram, the landlord was specifically informed that, unless the agent ( the landlord) procures sufficient space for display and sale of the products, the agency will be terminated. While considering the hardship as projected by the tenant in the event of his eviction, the Appellate Authority noticed that the tenant had not even bothered to find out the availability of other buildings in the locality. To a specific question about the availability of a particular building in a named area, the answer of the tenant in the witness box was that he did not deem it necessary to make an enquiry. He stated that he did not know whether such a building was available. The Appellate Authority found that the tenant had not established his so called hardship in this regard. 10. In this context, it may also be noticed that the RCR.No.31/2010 Page numbers petitioner/tenant had not adduced any evidence to show what was the income that he was deriving from the business that he was conducting in the tenanted premises. In other words, there was no material to show that he depended entirely on the income that was being received by him from the business in the tenanted premises. Further, there was nothing on record to show that any other larger or more spacious room was available with the landlord to shift his agency. Thus on an assessment of the comparative hardship the appellate authority found that the tenant is not entitled to get the protection of the proviso. 11. We have carefully perused the entire materials available on record. We are totally satisfied that the concurrent findings entered by the two authorities below is legally valid and proper, and we do not find any justifiable reason to interfere with the said findings. 12. At this stage, learned counsel for the petitioner submits that the petitioner is prepared to vacate the premises, if he is given some reasonable time. He submits that the petitioner has already placed orders for school bags, umbrellas etc. anticipating good business during the beginning of the next academic year and prays that he may RCR.No.31/2010 Page numbers be granted time to vacate till June 30, 2010. 13. Learned counsel for the respondent/landlord very fairly submits that he has no objection, if some reasonable time is granted to vacate. 14. Having regard to the peculiar facts and circumstances of the case, we are satisfied that the prayer made on behalf of the tenant can be granted on the following conditions: 1) The petitioner shall file an undertaking before the court below in the form of an affidavit that he will vacate the petition schedule premises on or before June 30, 2010 . The affidavit shall be filed before the Execution Court on or before February 8, 2010. 2) The petitioner shall deposit the entire arrears of rent, if any and continues to pay the monthly rent till he vacates the premises. If the petitioner fails to file the affidavit before the Execution Court as directed above, this Revision Petition shall stand dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. RCR.No.31/2010 Page numbers