IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 RCRev..No. 305 of 2009 (B) ------------------------------- RCP.4/2004 of RENT CONTROL COURT, PATHANAMTHITTA .................... REVISION PETITIONER/APPELLANT/RESPONDENTS -------------------------------------------------------- R.RAVI, PHARMACIST, S/O.LATE RAMACHANDRAN, PARAYADIYIL HOUSE, PANNIYALI MURI, OMALLOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN SRI.M.V.ASHIM SRI.B.HARRYLAL RESPONDENT(S): RESPONDENTS/PETITIONER --------------------------------------------------- K.S.JOSEPH, S/O.KOSHY SKARIA, KOIKKAL HOUSE, NANNUVACADU MURI, PATHANAMTHITTA MUNICIPALITY, NOW RESIDING AT 33/1838, SOBHA ROAD, VENNALA P.O., KOCHI - 28, ERNAKULAM. ADV. SRI. K.SHAJ FOR R1 SRI.SAJJU.S FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.305 of 2009 ------------------------------------------------ Dated this the 8th day of July, 2010 ORDER Pius C. Kuriakose, J The tenant who has suffered order of eviction concurrently at the hands of the Rent Control Court and the Appellate Authority on the ground of additional accommodation under sub Section 8 of Section 11 is the revision petitioner. The need that was projected by the landlord who at the time of commencement of the RCP was an Engineer in Merchant Navy working on a foreign shipping line was that he is conducting a lodge in the first and second floors of a larger building, a room in the ground floor of which is the petition R. C. R. No.305 of 2009 -2- schedule room and that the said lodge does not have a proper reception or lobby area at present. It is stated that the counter of the lodge is presently accommodated in a narrow space underneath the staircase which leads to the first and second floors and that in order that the lodge business flourishes, it is necessary that the petition schedule room (which is adjacent to the staircase) in which the revision petitioner/tenant is presently conducting a medical shop is converted as a reception room-cum-lobby. Thus, the petition schedule room was sought by way of additional accommodation for personal use. 2. The bona fides of the need projected in the RCP was very stiffly disputed. It was pointed out R. C. R. No.305 of 2009 -3- that in the year 2001, the landlord had an intention to dispose of the entire three storied building and therefore, the landlord requested his tenants occupying the other rooms in the ground floor to vacate. All tenants other than revision petitioner vacated. The revision petitioner, however, was unable to vacate as no other suitable rooms was available in the locality and as the medical shop conducted in the room was the only source of living for the revision petitioner and his family. The refusal by the revision petitioner to vacate in response to the landlord's demand was to the chagrin of the landlord who started machinating ways and means for compelling surrender of the building by the revision R. C. R. No.305 of 2009 -4- petitioner. Anticipating eviction by unlawful means, the revision petitioner moved the local Civil Court by filing O.S.364/01 seeking a decree of injunction restraining the landlords from evicting the tenants other than by lawful means. The said suit was decreed and the above decree also antagonized the landlord very much and it is contended that the RCP is the aftermath of the landlord's displeasure towards the revision petitioner. The tenant also contended that even if the need is bona fide then also he is not liable to be evicted as he has no other source of income for a living and other buildings are not available in the locality. It was pointed out that he was heavily indebted to the Federal Bank on account of an R. C. R. No.305 of 2009 -5- over draft which he had availed from that bank for conducting the medical shop. It was also pointed out that in the objection that the petition schedule room situated just opposite the District Hospital is the ideal room for conducting medical shop business. The Rent Control Court enquired into the matter and on appreciating the evidence adduced by the parties which consisted of Exts.A1 to A5, B1 to B6 and C1 series and PW1 and DW1, came to the conclusion that the need for additional accommodation projected by the landlord was a genuine one and that the advantages which the landlord gain will outweigh the hardship which the tenant may sustain. 3. The Appellate Authority considered the R. C. R. No.305 of 2009 -6- appeal filed by the revision petitioner, re- appraised the entire evidence, however, concurred with all the conclusions of the Rent Control Court and dismissed the appeal. 4. In this revision under Section 20 various grounds have been raised by the revision petitioner assailing the judgment of the Appellate Authority and Sri.P.Vijayakumar, the learned counsel for the revision petitioner addressed arguments before us on the basis of various grounds raised in the memorandum of revision. All the submissions of Sri.Vijayakumar were resisted by the counsel for the respondent who supported the impugned judgment on the various reasons stated therein. Sri.Vijayakumar submitted that R. C. R. No.305 of 2009 -7- before an order of eviction is passed on the ground under sub Section 8 of Section 11, it is mandatory that the court is convinced that the landlord is in actual physical occupation of a portion of the larger building which consists of the petition schedule premises also. In the instant case, at the time when the RCP was instituted, the petitioner was an Engineer on board a foreign going vessel. He could not have at that time occupied any portion of the three storied building in question. As for the present the Commissioner has reported that there are no occupants at all in the lodge which was previously conducted in the first and second floors of the third storied building. Thus there is total dearth of evidence regarding R. C. R. No.305 of 2009 -8- physical occupation by the landlord of any portion of the larger building which is a statutory pre- requisite for passing any order of eviction under sub Section 8 of Section 11. Sri.Vijayakumar submitted that the landlord is even now put up at Ernakulam which is more than 100 kilometres away from Pathanamthitta, the place where the building is situated. The landlord has more than Rs.19 lakhs to the credit of his account. It is quite unnatural for such a landlord to think in terms of conducting a small time lodge in his hometown. Hence, the need projected is inherently not bona fide. 5. Sri.Vijayakumar was more emphatic in his submissions regarding the revision petitioner's R. C. R. No.305 of 2009 -9- eligibility for the protection of the proviso to sub Section 10 of Section 11. According to Sri.Vijayakumar, there is no satisfactory consideration of the operation of the above proviso even by the learned Rent Control Appellate Authority. He in that context would read over to us almost the full text of the judgment of the Appellate Authority. He pointed out that the Appellate Authority has not considered the crucial question as to whether the advantages to be gained by the landlord will outweigh the hardship which the tenant may sustain, to do which it was necessary that the Appellate Authority should consider the extent of the advantages and the extent of hardship. That has not been done in this R. C. R. No.305 of 2009 -10- case. According to Sri.Vijayakumar the maximum advantage which the landlord may gain is that he may get some more income over and above the income which he is already deriving from his bank deposits and other sources. But as far as the tenant is concerned, eviction will be the end of the road for him. It will be impossible for the tenant to relocate his medical shop business in a building which is as suitable as the petition schedule building. The hardship will certainly outweigh the advantages and hence, even if this Court is confirming the findings regarding bona fides the RCP will have to be rejected. 6. As already stated all the submissions of Sri.Vijayakumar were resisted by the learned R. C. R. No.305 of 2009 -11- counsel for the respondent on the basis of the various reasons stated in the judgment of the Appellate Authority. We have very anxiously considered the rival submissions addressed before us. we have scanned the judgment of the Appellate Authority as well as the oder of the Rent Control Court. We are not much impressed by the submission of Sri.Vijayakumar that for want of occupation by the landlord of a portion of the larger building the Rent Control Petition invoking sub Section 8 of Section 11 is liable to be rejected. It has been clearly pleaded by the landlord in the RCP that he is conducting a lodge in floors 1 and 2 of the three storied building and it is for improving the said lodge business that he R. C. R. No.305 of 2009 -12- needs to convert the petition schedule room as a reception-cum-lobby. Even though detailed statement of objections was filed a reading of paragraphs 7 and 8 of the statement of objections will reveal that the revision petitioner has admitted that the landlord and his father have been conducting a lodge in floors 1 and 2 of the three storied building in question during the ten years preceding the period of filing of the objections. Even in the affidavit that was given by DW1 in lieu of chief examination, what is stated is only that all the rooms in the lodge are not occupied thereby admitting that at least in a skeleton manner lodge is being conducted. Of course, the Advocate Commissioner reported that R. C. R. No.305 of 2009 -13- at the time of his visit there was no occupant in any of the lodge rooms. May be the above report can be a report regarding what was noticed by the Commissioner during his visit. Significantly the tenant has not raised a plea that subsequent to the filing of the RCP the lodge business has been closed down and no endeavour is made by the tenant for bringing that subsequent event to the notice of the court as a relevant subsequent event affecting the landlord's right to obtain eviction. 7. It certainly has to be noticed that at the time when the RCP was filed, the landlord did not have physical occupation; but then occupation as envisaged by sub Section 8 of Section 11 does not mean physical occupation by the landlord himself. R. C. R. No.305 of 2009 -14- It can be occupation by the landlord through his agents. We are convinced that at the time when the landlord was employed with the Merchant Navy the lodge building was being personally used by the landlord through his agent who was none other than his own father. Thus, we do not find any infirmity about the courts below having proceeded on the basis that the petition under Sub Section 8 of Section 11 was maintainable in law. 8. Now as for the finding that the need for additional accommodation is bona fide, it is trite by decisions of this Court that the standards for establishing bona fides in a case for eviction under Section 11(8) are more liberal than the standards R. C. R. No.305 of 2009 -15- for establishing bona fides in a claim under sub Section 3 of Section 11. In the instant case PW1 the landlord gave oral evidence. It is seen that the two fact finding authorities who appreciated that evidence were inspired by that evidence. We do not think that we will be justified in re-appraising the evidence and coming to a different conclusion as we do not find anything unreasonable in the finding entered by the Rent Control Appellate Authority, the statutory final fact finding authority and hence we cannot in this jurisdiction upset that finding. 9. The next question to be considered is whether the RCP is liable to fail by virtue of proviso to sub Section 10 of Section 11. The R. C. R. No.305 of 2009 -16- argument addressed before us very strenuously by Sri.Vijayakumar was that there is no satisfactory consideration of this question by the learned Appellate Authority. We do not think so. The Appellate Authority had kept in mind the decisions of this Court recognizing the principle that additional accommodation can be allowed to a landlord even when it amounts to a luxury provided there was nothing in the evidence to show that eviction by way of additional accommodation was sought with oblique motives. We are sure that by getting eviction the landlord will be able to have a high tech reception-cum- lobby for the lodge business which will certainly result in the lodge business improving very much. R. C. R. No.305 of 2009 -17- Landlord will certainly gain advantages. 10. Then the question is as to whether the tenant will sustain hardship. True, like any other entrenched tenant who is being evicted from a place he has been carrying on business, there should be some hardship to the tenant. But the question is whether such hardship will outweigh the advantages to the landlord. We are of the view that the hardship which the tenant will sustain by suffering the order of eviction will stand alleviated to a very great extent if the tenant is able to identify another building in the locality for relocating the medical shop business. The evidence and the tenor of the arguments addressed before us will show that the tenant was insisting on a building which is as ideal as the R. C. R. No.305 of 2009 -18- petition schedule building situated just opposite to the General Hospital in the town. To insist on an exactly identical building in exactly the same locality is to insist for the impossible. Pathanamthitta town has been on the path of development ever since the new revenue district came into being and the evidence reveals that at least in some other parts of the town rooms are available. The nature of the business that is being conducted by the revision petitioner should also be noticed. It is a medical shop business. The petitioner's business has been flourishing all those years, according to the learned counsel. This must be due to the quality of the services that the petitioner rendered to his customers. In the nature of this business, the relationship that the R. C. R. No.305 of 2009 -19- petitioner maintained with the local medical practitioners as well as the types of medicines that he sells will count a lot. We feel that it will not be very difficult for the revision petitioner with the reputation he claims to have gained by now to prosper even if the business is relocated in a room situated in some other parts of the town. Even though Sri.Vijayakumar would very fervently submit that the medical shop business is the sole means of livelihood for his client, we are of the view that there is evidence in the case to hold that he has some agricultural income also. As to what is the actual income derived from the agricultural property and from the business of medical shop, the evidence will be at the disposal of the tenant only. We do not find any such evidence adduced R. C. R. No.305 of 2009 -20- for showing that the income derived from the medical shop business is the main income. In this jurisdiction under Section 20 we are not expected to sit in appeal over the findings of the Appellate Authority which is statutorily the final fact finding authority. Our look out is only to find whether the findings of the Appellate Authority are illegal, irregular or improper. We feel that the Appellate Authority has appreciated the evidence correctly and has arrived at a reasonable finding against the tenant in the context of the proviso to sub- section (10) of Section 11. Therefore we do not find any warrant for interfering with that finding also. Revision stands dismissed. 11. But two submissions which were made by Mr.Vijayakumar have some appeal. The first R. C. R. No.305 of 2009 -21- submission was that the revision petitioner will be willing to surrender the first floor room immediately provided an unusually long period of 18 months is granted for surrendering the ground floor room. Another submission was that as a matter of fact, at the time when the building was entrusted on lease, the tenant had paid to the landlord a substantial amount as advance/ security. We are of the view that if the tenant is prepared to surrender the first floor room on or before 31/07/2010 he can be allowed one year's time from today, i.e., till 09/07/2011 for surrendering the ground floor. We are not inclined to accept the submission of Mr.Vijayakumar that at the time of entrustment his client paid Rs.5.25 lakhs to the landlord. But R. C. R. No.305 of 2009 -22- we have reason to believe that the revision petitioner paid an amount which is much higher than the amount of Rs.25,000/- admitted by the landlord. We are of the view that the execution court before ordering delivery should explore the possibility of a settlement between the parties on the above issue as to what was the actual amount paid by the tenant at the time when he took the rooms on lease. If necessary, the learned Munsiff should summon landlord as well as the tenant to the court hall, put necessary questions to them, so that if possible, the issue can be settled before delivery warrant is issued. The result of the above discussion is therefore as follows: 12. The judgment of the Appellate Authority is confirmed. RCR is dismissed. The revision R. C. R. No.305 of 2009 -23- petitioner is directed to put the landlord in possession of the first floor room on or before 31/07/2010 and file a memo to that effect before the execution court on or before 1st of August 2010. If that is done, there will be a further direction that the execution court will not order delivery of the building in favour of the landlord till 09/07/2011 subject to the following conditions: 13. The revision petitioner shall file an affidavit before the execution court within one month from today undertaking to give peaceful surrender of the ground floor room forming part of the petition schedule premises to the landlord on or before 09/07/2011 and undertaking further that he will discharge the arrears of rent if any, within one month and that he will pay occupational R. C. R. No.305 of 2009 -24- charges at the current rent rate without fail as and when the same falls due. 14. There will be a further direction that the execution court shall summon both parties to the court hall, conduct necessary enquiry (informal enquiry by putting questions) and make an endeavour to bring forth a settlement between the parties on the issue as to what was the amount actually paid by the revision petitioner to the respondent at the time when the rooms were let out. If a settlement is arrived at, the learned Munsiff will order delivery only after ensuring that the amount is paid back to the revision petitioner either by actual payment or by way of adjustment. Needless to mention that even if the learned Munsiff is unable to bring forth a settlement R. C. R. No.305 of 2009 -25- between the parties regarding the above issue this judgment will not foreclose the remedies available to the revision petitioner before the regular civil court. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-