IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RCRev..No. 266 of 2011(D) ------------------------------ RCA.75/2009 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.13/2004 of MUNSIFF COURT,CHAVAKKAD .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------ SHAMSUDHEEN, S/O.AHAMMEDKUTTY, VALIYAKATH THEKKEYIL, THAIKKAD AMSOM DESOM, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SMT.S.JAYASREE SRI.P.RAMACHANDRAN RESPONDENT(S):/RESPONDENTS/ PETITIONERS ------------------------------------------------------ 1. VELAYUDHAN, S/O.VALLASSERI SANKARANKUTTY, GURUVAYOOR AMSOM DESOM, P.O.GURUVAYOOR, CHAVAKKAD TALUK, MALAPPURAM DISTRICT-680 101. 2. RAVUNNI, S/O.VALLASSERI SANKARANKUTTY, DO. DO. ADV. SRI.RAJIT FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.266 of 2011 ------------------------------------------------ Dated this the 17th day of August, 2011 ORDER Balakrishnan, J The tenant is in revision. Order of eviction was concurrently passed against him under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act [Act 2 of 1965]. Originally the petition was filed under Section 11(2)(b) and 11(3). The petition schedule room is lying on the eastern side of the ground floor of the building. First floor, second floor and third floor are used as lodging house. There are 36 rooms in the lodge. The lodge is intended for the devotees who come to Guruvayoor temple. The petition schedule room was sought to be evicted on the ground that, for the convenient conduct of the lodge a provision for catering is to be made and for that purpose a small restaurant is proposed to be conducted in the petition schedule room which is part of the very same building. It was contended that as there R. C. R. No.266 of 2011 -2- was no restaurant attached to the lodge, the landlords' business in the lodging house has come down. The claim was resisted by the tenant contending that landlords are having other vacant buildings and that only because the tenant did not yield to the demand of the landlords to pay higher rent and to pay huge amounts as advance, the RCP is filed. 2. Subsequently a petition was filed by the landlords seeking amendment of the petition to include a claim under Section 11(8) of the Act. That petition was allowed. The order allowing the amendment incorporating Section 11(8) was challenged by the tenant in appeal. That order was confirmed and the appeal filed by the tenant was dismissed. The landlords gave up their claim under Section 11(3) and pressed into service the claim under Section 11(8) of the Act only. 3. The evidence on the side of the landlords consisted of the oral testimony of PW1 and Exts.A1 to A6. The tenant was examined as RW1 and Exts.B1 to B9(j) were marked. The R. C. R. No.266 of 2011 -3- Commissioner's report and sketch were marked as Exts.C1 and C2. 4. The learned Rent Controller found that the need set up by the landlords for additional accommodation of the petition schedule building for starting a restaurant is bona fide. It was further found by the Rent Controller that the advantage which the landlords would gain on getting eviction of the petition schedule building and by conducting restaurant therein would outweigh the hardship that may be caused to the tenant. Since there was arrears of rent, order of eviction was passed under Section 11(2) (b) also. 5. The appeal filed by the tenant was dismissed by the learned Appellate Authority after re-appreciating the entire evidence. 6. The learned counsel for the revision petitioner has addressed arguments on all the points raised in the revision petition. With regard to the order of eviction under Section 11(2) R. C. R. No.266 of 2011 -4- (b) though there is some dispute regarding the amounts which are stated to be paid in the course of the proceedings, we direct that that dispute will be resolved in the petition which may be filed by the tenant under Section 11(2)(c) of the Act. 7. With regard to the order of eviction concurrently passed under Section 11(8) of the Act, the learned counsel for the tenant would submit that there was wrong appreciation of evidence by the two courts below. The learned counsel Sri.K.Ramachandran would submit that the fact that original claim was made under Section 11(3) of the Act but was subsequently given up itself will show that the ground under Section 11(8) was subsequently introduced by the landlords to get over the difficulty of the first proviso to sub Section 3 of Section 11 of the Act. According to the learned counsel, only because the landlords realised that there were two other rooms which were got vacated by the landlords, they cleverly changed their claim to Section 11(8). This contention has been resisted by Sri.Rajith, the learned counsel R. C. R. No.266 of 2011 -5- appearing for the landlords pointing out that Section 11(8) was not introduced to get over the difficulty as contended by the landlords. The amendment was sought for long before the RCP was listed and only after the objections were filed by the tenant to that petition the application was considered and allowed and it was confirmed by the learned Appellate Authority also. As such, the learned counsel submitted that no prejudice whatsoever was caused to the tenant by introducing Section 11(8) and giving up the claim under Section 11(3) of the Act. The learned counsel further submitted that the element of need which is required to sustain claim under Section 11(10) is also satisfied. Not only that the very case of the landlords as can be seen from para 8 of the petition as originally stood will also show that the need was actually for enabling the landlords to start a restaurant for serving the devotees who take the rooms in the lodges. 8. The contention that Section 11(3) was given-up by the landlords for the reasons alleged by the tenant as mentioned R. C. R. No.266 of 2011 -6- above cannot be sustained. The decisions on the point are to the effect that the claims u/s 11(3) and 11(8) of the Act are mutually exclusive. Since the landlords were given legal advice that both claims cannot go altogether, the claim u/s 11(3) was given-up. Since the petition schedule building is part of the main big building held by the landlords and the claim put forward by the landlords is for additional accommodation for the landlord's own use, the claim would fall only under Sec. 11(8) of the Act. No evil motive can be attributed with regard to the same. 9. It is also argued by the learned counsel for the tenant that the landlords had earlier filed RCP.31/2002 for evicting the tenant Sri.K.C.Rajan and later that tenant surrendered two rooms to the landlords and another room was let out to Rajan on executing a fresh rent deed and that also would show that the landlord was filing petitions against the tenants to compel them to pay higher rent. It is also argued that the room obtained from Rajan as mentioned above are still lying vacant and as such the landlords can use those rooms also. R. C. R. No.266 of 2011 -7- 10. It is submitted by the landlord's counsel that RCP.31/2002 was settled between the parties and in terms of the settlement out of the three rooms held by Rajan, two rooms were surrendered to the landlord and one room was allowed to be occupied by Rajan. Therefore, there is nothing unusual or un- natural in it. It is pointed out that those two rooms were got evicted for the purpose of enabling PW1's son who is a Dentist, to start a dental clinic but since his son and daughter-in-law are presently abroad, the dental clinic could not be started. As they are coming soon to the native place those rooms are kept vacant to enable them to start the dental clinic. The fact that those rooms were not let out to anybody would only show the bona fides of the statement made by the landlords. 11. The main thrust of the argument advanced by the learned counsel for the landlords is that it was not stated in the petition that “Babu Lodge” is being run as partnership firm, on the other hand, the claim put forward was for the own use of the landlords and not for the partnership concern and as such the claim u/s 11(8) should have been disallowed. In evidence it was R. C. R. No.266 of 2011 -8- stated by PW1 that “Babu Lodge” is run as a partnership business of which the other two partners are PW1's brother and brother's son. It is stated that PW1 is still having 50% share in the partnership. The word 'own' used in Section 11(8) cannot be construed in a narrow sense. Though the landlords had also taken with him two partners to his business, it does not mean that the landlords' need or requirement has come to an end. The eviction sought was for starting a restaurant for the Lodge conducted in the first floor, second floor and third floor of that building of which the petition schedule building is a part. That need continues. It is for the very same purpose eviction is sought. Therefore, it can be found that the additional accommodation is for the lodge owned by the landlord, though in that business he had joined two other persons also as partners. Hence, the contention that the claim u/s 11(8) is unsustainable for the reasons mentioned above must also fall to the ground. Viewed in this background it can be found that the need for additional accommodation put forward by the landlords is bona fide. 12. The other contention that survives for consideration is R. C. R. No.266 of 2011 -9- whether the hardship that would be caused to the tenant by ordering eviction would outweigh the advantage which the landlord would get by obtaining eviction. There is evidence to show that if restaurant is started in the petition schedule building that would attract the devotees to come and occupy the rooms in “Babu Lodge” and thereby it would increase the business of the landlord and would enable them to conduct their business profitably. That is the advantage projected by the landlord. The hardship that is pointed out by the tenant is that he has been conducting the business for several years and that it will not be possible for him to get a room almost identical to the same in the nearby area for shifting the business. But it has come out in evidence that there are other vacant rooms available in that locality. There is no satisfactory evidence to show that the hardship which the tenant may suffer would outweigh the advantage that would be gained by the landlords on getting eviction. As such on that ground also the tenant cannot resist the order of eviction concurrently passed by the two courts below. There is no illegality, irregularity or impropriety in the order of R. C. R. No.266 of 2011 -10- eviction passed by the courts below u/s 11(8) of the Act. 13. In the result, this revision is dismissed. 14. The learned counsel for the tenant requested that at least one year time may be given to the tenant to surrender possession of the petition schedule building. Though this request is strongly resisted by the learned counsel for the landlords, we are inclined to grant one year time to the tenant for vacating the premises, but subject to the following conditions:- The revision petitioner shall file an affidavit within three weeks from today before the execution court or Rent Control Court, as the case may be, undertaking to surrender vacant possession of the petition schedule building peacefully to the landlords within one year from today and undertaking further that arrears of rent, if any, due as on date will be discharged within one month from today and further that with effect from 1st September, 2011 till the date of actual surrender the tenant will pay occupation charges at the rate of ` 1,000/- per month. We make it clear that the tenant will get the benefit of time granted as above only if he files the affidavit on time and honours the R. C. R. No.266 of 2011 -11- undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns & smvd/-