IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 RCRev..No. 393 of 2010(A) ------------------------------ RCA.47/2008 of ADDL.D.C., ALAPPUZHA. RCP.6/2006 of RENT CONTROL COURT, ALAPPUZHA .................... REVISION PETITIONER/APPELLANT/RESPONDENTS --------------------------------------------------------- SIVAPRASAD, S/O.VISWAPPAN, AGED 37 YEARS, STAIR CASE PORTION OF THE PRESS CLUB BUILDINGS, OPP.DISTRICT COURT, ALAPPUZHA. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA RESPONDENT(S)/RESPONDENTS/PETITIONERS: ----------------------------------------------------- 1. DISTRICT UNIT OF K.U.W.J. (PRESS CLUB), PRESS CLUB BUILDINGS, ALAPPUZHA, REPRESENTED BY ITS SECRETARY. 2. THE PRESIDENT, DISTRICT UNIT OF K.U.W.J (PRESS CLUB), PRESS CLUB BUILDINGS, ALAPPUZHA. ADV. SRI.R.AZAD BABU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.393 of 2010 ------------------------------------------------ Dated this the 12th day of April, 2011 ORDER Pius C. Kuriakose, J The tenant challenges in this revision under Section 20 the judgment of the Rent Control Appellate Authority, Alappuzha confirming the order of eviction passed by the Rent Control Court under sub Section 8 of Section 11. The landlord is the District Unit of Kerala Union of Working Journalists (Press Club), Press Club Buildings, Alappuzha. The landlords sought to evict the tenant on the grounds of arrears of rent under Section 11(2)(b) and of additional accommodation under Section 11(8). The ground under Section 11(2)(b) does not survive any longer. This Court had occasion to re-fix the rent payable by the petitioner/tenant at Rs.1,000/- per mensem. We are told R. C. R. No.393 of 2010 -2- that the tenant is presently paying rent at the above rate. In this revision we need be concerned only with the correctness of the order of eviction passed against the tenant under Section 11(8). 2. The building in question is a staircase room in the ground floor of a large three storied building belonging to the landlord. The petitioner/tenant is conducting photostat copy business in the building. The need projected by the landlord was for occupation of the building after conversion as a reception counter/security counter/area for receiving senior politicians who cannot climb up the stairs to the Press Club hall which is in the second floor of the building. The bona fides of the need was disputed by the revision petitioner who also claimed that the hardship which will be sustained by him by the order of eviction will outweigh the advantages, if any, which the landlord may gain by getting eviction. The Rent Control Court enquired into the R. C. R. No.393 of 2010 -3- contentions and in the enquiry the evidence consisted of Exts.A1 to A7(a), B1 to B13, C1 to C2(a) and the oral evidence of PW1 and CPW1. The Rent Control Court on evaluating the evidence came to the conclusion that the need for additional accommodation projected was bona fide. Without entering specific findings in the context of the first proviso to sub Section 10 of Section 11, the court concluded that the tenant/landlord is entitled for an order of eviction under sub section 8 of Section 11. Accordingly, order of eviction was passed under sub Section 8 of Section 11. The Appellate Authority considered an appeal preferred by the tenant and by the impugned judgment has confirmed the above order of eviction. 3. Smt.C.G.Bindu, the learned counsel for the revision petitioner addressed us extensively on the basis of the various grounds raised in the memorandum of revision whereby the correctness of the eviction order is seriously R. C. R. No.393 of 2010 -4- assailed. She argued that the claim is inherently bereft of bona fides. The idea of accommodating reception counter/security counter and area for receiving senior politicians in the staircase room having an extent of just 40 sq. ft. cannot be a bona fide one. She would argue that, at any rate, as the landlord/Press Club is having extensive other areas in the three storied building which could be utilised for accomplishing the need, the advantage which the landlord may gain by getting possession of 40 sq. ft. will not outweigh the hardships to be sustained by the tenant who is eking out his livelihood by doing business in the petition schedule building. In this context, she highlighted that the Rent Control Court has entered a specific finding that the tenant is eking out his livelihood by conducting photostat business in the petition schedule building. Sri.R.Azad Babu, the learned counsel for the respondent/landlord would defend the impugned judgment as ably as he could. R. C. R. No.393 of 2010 -5- According to him, the bona fides of the need for additional accommodation was conceded by the tenant in his evidence as CPW1. When the learned counsel's attention was drawn to the absence of specific findings in the context of the first proviso to sub Section 10 of Section 11 particularly absence of any finding regarding the advantages which the landlord will gain, Sri.Babu would answer that advantages was a matter for easy assumption in this case. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the judgment of the Rent Control Appellate Authority and the order of the Rent Control Court. We have made a quick survey of the oral evidence adduced by PW1. 5. Having due regard to the contours of our present jurisdiction under Section 20 we do not have any hesitation to say that the findings concurrently entered by the Rent Control Court and the Appellate Authority that the need for R. C. R. No.393 of 2010 -6- additional accommodation projected by the landlord is bona fide does not warrant any interference. We confirm the above finding as the same is a reasonable one founded on evidence available in the case including the admissions that came from the mouth of CPW1. But we find some merit in the submissions addressed before us by Smt.C.G.Bindu regarding the applicability of the first proviso to sub Section 10 of Section 11. It is trite by various decisions that even in cases where the need projected by the landlord under sub Section 8 of Section 11 is found to be bona fide, the Rent Control Court is bound to examine whether hardship which may be caused to the tenant by ordering eviction will outweigh the advantages which the landlord will gain by obtaining the order of eviction. In this case, the Rent Control Court which under the statutory scheme is the first fact finding authority has endeavoured to consider the applicability of the first proviso in paragraphs 16 and 17 of R. C. R. No.393 of 2010 -7- its order. It is clear to us on a reading of those two paragraphs that the Rent Control Court was concerned only with the question of the hardships which the tenant will have to suffer by the order of eviction. There is no evaluation at all of the advantages which the landlord will gain. The Rent Control Court was bound to evaluate the advantages to the landlord and the hardships to the tenant in two scales of the balance and enter a specific finding as to whether the hardship will outweigh the advantages, if any, gained by the tenant. A copy of the affidavit which was filed before the court below by PW1 in lieu of his chief examination was placed before us by Sri.Azad Babu. It is in paragraph 6 of that affidavit that PW1 dwells on the first proviso to sub Section 10 of Section 11. This is what he has stated in that paragraph “no hardship will be caused to him if he is evicted but if the petition is not allowed the press club and general public will be put to much hardship and R. C. R. No.393 of 2010 -8- loss”. May be what he wanted to say was that the Press Club and the General Public who are the beneficiaries of the Press Club will gain considerable advantages. But the statutory mandate was that he should say so in so many words. Unfortunately, this aspect of the matter did not receive the requisite attention at the hands of the learned Appellate Authority also. It has to be observed that the learned Appellate Authority was concerned only with the bona fides of the need for additional accommodation and does not even casually refer to the applicability of the first proviso to sub Section 10 of Section 11. 6. As we are in complete agreement with the finding concurrently entered by the two authorities that the need for additional accommodation projected by the Press Club is a bona fide one we are not inclined to dismiss the Rent Control Petition. We set aside the judgment of the Rent Control Appellate Authority and remand the Rent Control R. C. R. No.393 of 2010 -9- Appeal to the Rent Control Appellate Authority, Alappuzha. We notice in this connection that under the statutory scheme, the Rent Control Court as well as the Rent Control Appellate Authority have co-equal powers in the matter of pleadings and evidence. We direct the Rent Control Appellate Authority to enter specific findings on the question whether the hardship which the tenant may sustain will outweigh the advantages which the landlord may gain by getting the order of eviction. The Appellate Authority will allow one opportunity each to the parties for adducing evidence on this particular issue. The Appellate Authority will pass revised judgment in the appeal on the basis of the evidence already on record and the further evidence, if any, which comes to be adduced by the parties. The parties will enter appearance before the Rent Control Appellate Authority on 25/05/11. The learned Appellate Authority will give top priority to the appeal, complete the enquiry and R. C. R. No.393 of 2010 -10- pass revised judgment within three months thereafter. We make it clear once again that the need for additional accommodation projected by the landlord is bona fide is confirmed. The order of this Court re-fixing the rent at Rs.1,000/- per mensem is sustained subject to right of either party to move the Rent Control Court under Section 5 for regular fixation of fair rent. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-