IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 RCRev..No. 162 of 2010() ----------------------------- RCA.49/2008 of ADDL.DISTRICT JUDGE FAST TRACK-II,ALAPPUZHA RCP.26/2005 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER/RESPONDENT/COUNTER PETITIONER ------------------------------------------------------------ ISSAC @ PAPACHAN, AGED 68 YEARS, S/O.OUSEPH KAMBIYAKATH, CHERTHALA VADEKKE VILLAGE, VADAKKUM MURIYIL. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.DIPU JAMES RESPONDENT(S): APPELLANTS/PETITIONERS ----------------------------------------------------- 1. ABDUL BASHEER, S/O.ABDUL KHADER, STARVIEW, CMC-8, CHERTHALA KIZHAKKUM MURIYIL, KOKKOTHAMANGALAM VILLAGE. 2. SUSANNA BHASHEER @ SAJITHA, W/O.ABDUL BASHEER, STARVIEW, CMC-8, CHERTHALA KIZHAKKUM MURIYIL, KOKKOTHAMANGALAM VILLAGE. R1 & R2 BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------- R.C.R.No.162 OF 2010 ----------------------------------- Dated this the 3rd day of November, 2010 O R D E R ~~~~~~~ Pius C. Kuriakose, J. Under challenge in this revision filed under Section 20 by the tenant is the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner on the ground under sub-section 8 of Section 11 after reversing the order of the Rent Control Court dismissing the Rent Control Petition. As eviction has been ordered only on the ground under sub section 8 of Section 11 and revision is filed against the judgment of the appellate authority only by the tenant in this eviction, we will be concerned only with the correctness of the order passed by the Appellate Authority under sub-section 8 of Section 11. The need projected by the landlord in the RCP was that he is conducting business in his portion of the larger building another portion of which is the petition schedule building, in hardware and electronic goods and that he needs the petition schedule building also by way of additional accommodation for expansion of his business. The bonafides of R.C.R.No.162/2010 2 the need was disputed. It was contended that RCP has been filed as a fall out of earlier unsuccessful proceedings initiated by the landlord for enhancement of the rent. It was also contended that the advantages which the landlord will gain will not outweigh the hardship which the tenant will sustain if an order of eviction is passed. The Rent Control Court conducted an enquiry and in the enquiry the evidence consisted of A1 to A5, B1 and B2, PWs 1 to 3, RWs 1 to 4 and C1. RW4 was a neighbouring shop keeper, who deposed that the landlord's need for additional accommodation is only a ruse. He, however, had to concede in the witness box that the need of the landlord for additional accommodation is a genuine one and that the landlord is in need of additional space for conducting his business more successfully. The evidence adduced by PWs 1 to 3, however, did not inspire the Rent Control Court much. Eventhough Ext.C1 Commissioner's report was in support of the landlord's stand that there was need for additional space, the Rent Control Court dismissed the petition without entering specific finding on the question of the proviso to sub-section 10 of Section 11. R.C.R.No.162/2010 3 2. The Appellate Authority considered the appeal preferred by the landlord made a thorough reappraisal of the pleadings and the evidence and found that the need for additional accommodation raised by the landlord is bonafide. Ext.C1 was relied on very much by the appellate authority. The appellate authority did not find anything to disbelieve the version of PW1 the landlord. The appellate authority accordingly found that the need for additional accommodation is as bonafide and natural one. The point that was highlighted before the appellate authority to argue that it is not bonafide was the circumstance that the landlord had obtained vacant possession of an extensive building which was not far away from the petition scheduled building. The appellate authority rightly found that inorder that the need for expansion is accomplished the petition schedule building itself is to be got vacated. The appellate authority considered the question of proviso to sub section 10 of Section 11. The appellate authority relied on the evidence of the tenant himself that other buildings are available in the locality. The appellate authority also noticed that no cogent evidence has been adduced by the tenant as to what if any is the income that is derived from the business carried out. R.C.R.No.162/2010 4 The appellate authority held that the landlord will gain considerable advantages by getting eviction and that not much hardship is not going to be sustained by the order of eviction. In that view of the matter the appellate authority reversed the order of the Rent Control Court and ordered eviction. In this revision under Section 20, various grounds have been raised challenging the order of eviction. 3. Learned counsel for the revision petitioner would attacked the judgment of the appellate authority. The learned counsel submitted at the very outset that the appellate authority which ordered eviction under Section 11(3) has not considered the implications of the 2nd proviso to sub-section 3. The learned counsel highlighted that some six years prior to the filing of the RCP (in 1999) the landlord filed a suit for enhancement of rent. If the need was genuine the landlord would not have thought in terms of enhancing the rent. The appreciation of the evidence by the appellate authority was thoroughly erroneous so submitted the learned counsel. According to the learned counsel, the judgment of the Appellate Authority is to set aside and that of the Rent Control Court is to restored. R.C.R.No.162/2010 5 4. Mr.G.Gopakumar learned counsel for the respondents would resist the submissions of the learned counsel for the revision petitioner. We have very anxiously considered the rival submissions at the Bar and gone thorough the order of the Rent Control Court and the judgment of the Appellate Authority. We find that the appreciation of the evidence by the learned appellate authority was correct and proper. We also find that the finding that there is a genuine need for additional accommodation is founded on Ext.C1 Commissioner's report and the convincing evidence of PW1 and more significantly the evidence of RW1. It is trite that the standards for establishing bonafides in a case under 11(8) are not so vigorous as may be necessary for a claim under 11(3). We don't find any infirmity about the finding of the appellate authority that the need for additional accommodation of the 1st respondent is genuine. The only surviving question is whether the advantages of the landlord will outweigh the hardship to be sustained by the tenant. As rightly found by the appellate authority on evidence, other buildings are available in the locality. No cogent evidence is adduced by the tenant as to what is the income from the business. If that be so, the finding of the appellate authority R.C.R.No.162/2010 6 that the advantages which the landlord gains will outweigh the hardship to be sustained by the tenant is proper. Revision necessarily has to fail. We dismiss the revision. 5. After we pronounced the order, the learned counsel for the petitioner requested that atleast 9 months time will be granted to the petitioner for surrendering the premises. Though the request is opposed, we are inclined to grant time on conditions. Accordingly, we direct the Execution Court to keep in abeyance proceedings for taking away for a period 9 months from today subject to conditions: The revision petitioner shall file an affidavit before the Execution Court/Rent Control Court within three weeks from today undertaking to give peaceful surrender of the building to the respondents within 9 months from today. It will also be undertaken through the same affidavit that arrears of rent, if any, will be discharged within one month and that occupational charges at the rate of Rs.1,500 per month will also be paid from 1st December, 2010 till the date of actual surrender. We make it clear that the revision petitioner will get benefit of time as R.C.R.No.162/2010 7 granted above only, if the affidavit is filed in time and the undertakings are honoured without fail. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps