IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 RCRev..No.263 of 2004 -------------------------- RCA.92/2001 of RENT CONTROL APPELLATE AUTHORITY & ADDL.D.C., VADAKARA RCP.21/2000 of RENT CONTROL COURT & MUNSIFF COURT, PAYYOLI .................... REVN. PETITIONER/APPELLANT IN RCA/PETITIONER, LANDLORD ----------------------------------------------------------------------- KOMMODI ABDUL ALI, S/O.AMMAD HAJI, CHERAPURAM AMSOM, DESOM, VATAKARA TALUK, NOW WORKING ABROAD, BY POWER OF ATTORNEY KOKKODY AMMAD HAJI, S/O.MOIDEEN, 73 YEARS, DO. AMSOM AND DESOM. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S)/RESPONDENT IN RCA & TENANT IN RCP: ---------------------------------------------------------------- ANGADI PARAMBATH KUNHABDULLA HAJI, S/O.POCKER, AGED 61 YEARS, CHERAPURAM AMSOM, DESOM, POST: PALLIYATH, VATAKARA TALUK. ADV. SRI.K.RAKESH ROSHAN FOR R1 SMT.THUSHARA.V FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.263 of 2004 ------------------------------------------------ Dated this the 5th day of January, 2010 ORDER Pius C. Kuriakose, J The landlord being aggrieved by the order of the Rent Control Court and the judgment of the Appellate Authority declining eviction which was sought on the ground of arrears of rent, bona fide need for own occupation and need for additional accommodation for personal use, is in revision. The Rent Control Court dismissed the RCP completely accepting the defence contention raised by the tenant. The Appellate Authority also concurred with all the conclusions of the Rent Control Court and confirmed the decision of the Rent Control Court. Even though various grounds have R. C. R. No.263 of 2004 -2- been raised in this revision assailing the judgment of the Appellate Authority, it was fairly submitted before us by the learned counsel for the revision petitioner that the substantial and serious ground on which the landlord seeks to evict the tenant is the ground of additional accommodation. In view of the above submission, we propose to examine the case for eviction only on the ground under sub section 8 of section 11. 2. The landlord is employed abroad. His case as averred in the RCP was that his father who was examined as PW1 is conducting business in FACT manures and fertilizers in a room in the larger building, a part of which is the petition schedule building; that the above business of sale of FACT manures and fertilizers belongs not only to his father R. C. R. No.263 of 2004 -3- but to him also. It was urged that the petitioner and his father are experiencing dearth of space in that room where the fertilizer business is presently conducted and hence, the petition schedule building (stated to be the adjacent room) is required so that the fertilizer business can be expanded. 3. The bona fides of the need was disputed by the tenant. He also contended that the hardship which will be sustained by him if order of eviction is passed, will outweigh the advantages, if any, which may be gained by the landlord. The maintainability of the RCP under sub Section 8 of Section 11 was also questioned on the contention that the landlord/revision petitioner is not in occupation of any part of the larger building. Occupation for the purpose of conducting fertilizer business is by PW1, landlord's father. It was R. C. R. No.263 of 2004 -4- contended that the business belongs to PW1 only. The Rent Control Court on appreciating the evidence that came on record came to the conclusion that the landlord was not in occupation of any part of the larger building, a part of which is the petition schedule building. It was also noticed that the pleaded case that the petition schedule room is the room adjacent to the room where fertilizer business is being carried on, is not incorrect. It was further noticed that there was no evidence on the basis of which the landlord's case that he is also having interest in the fertilizer business carried on actually by his father can be accepted. However, the Rent Control Court examined the implications of the proviso to sub section 10 of Section 11 and found that the hardship which will be sustained by the tenant in the event of eviction will outweigh the R. C. R. No.263 of 2004 -5- advantages which the landlord may gain. Accordingly, the RCP was dismissed. The Appellate Authority re- appraised the evidence and concurred with the findings of the Rent Control Court and dismissed the appeal. 4. In this revision, Sri.C.Jayachandran, the learned counsel for the revision petitioner addressed us extensively on the various grounds raised in the revision, particularly those ground which pertain to the eviction ground under sub section 8 of section 11. Sri.Jayachandran submitted that the view concurrently taken by the Rent Control Court and the Appellate Authority that the landlord must be physically in occupation of a part of a building so as to sustain a case for eviction under sub section 8 of section 11, is erroneous. According to him, it will suffice if a member R. C. R. No.263 of 2004 -6- of the landlord's family is in physical occupation and the need for expansion of the business carried on by that family member can be a valid ground under sub section 8 of section 11. Sri.Jayachandran further submitted that the authorities below were not justified in insisting on documentary evidence for proving that the fertilizer business actually carried on by the father of the landlord (PW1) belongs to the landlord also. According to the learned counsel, having regard to the social relationship between the parties (i.e. father and son), the court below should have understood that even in the absence of a document a father and son will carry on joint business. Highlighting before us the reply notice which was sent by the tenant, Sri.Jayachandran submitted that it is indirectly admitted by the tenant in the reply notice that it is the R. C. R. No.263 of 2004 -7- joint business which was being carried on by the father and the son. The standards for proving the bona fides in a case for eviction on the ground of additional accommodation according to the learned counsel are not so rigorous as in a case for bona fide need for own occupation under sub section 3 of section 11. Adopting the liberal standards applicable under section 11(8) it could have been easily found that the need is bona fide. 5. The learned counsel would assail the conclusions of the authorities below in the context of the proviso to sub section 10 of section 11. According to him, the hardship which a tenant may sustain by order of eviction can be alleviated if the tenant is able to take another building on lease for shifting his business. No cogent evidence was adduced by the R. C. R. No.263 of 2004 -8- tenant to show that the other buildings are also available in the locality, so submitted the learned counsel. 6. All the submissions of Sri.Jayachandran were resisted by Sri.K.Rakesh Roshan. The learned counsel submitted that even a cursory reading of the statutory provision will show that physical occupation by the landlord of a part of the larger building of which the petition schedule building is also a part, is necessary for maintaining any application under sub section 8 of section 11. The Power of Attorney relied on in the RCP enables the father of the landlord only to institute the RCP. It has nothing to do with the business of fertilizers. All the documents produced in the case including the trade licence will show that the fertilizer business belongs to PW1 only and not to the landlord. R. C. R. No.263 of 2004 -9- Availability of alternate building is not a relevant consideration in the context of proviso to sub section 10 of section 11. According to the learned counsel, what is relevant is the comparative evaluation of the hardships which will be sustained by the tenant and the advantages which the landlord may gain. The tenant has given cogent evidence that once he is evicted he will be deprived of his sole livelihood. As against this the maximum advantage which the landlord may gain is that he will be able to carry on his business in a more comfortable manner. There will not be much increase in the sale proceeds since it is only the agency business of FACT that was being conducted by him. 7. Counsel also submitted that PW1 the real owner of the business in fertilizers is having another R. C. R. No.263 of 2004 -10- building of his own and he has already initiated proceedings for evicting the tenant in that building. If there was a genuine need for expanding the fertilizer business, PW1 could have invoked the ground under sub section 11 of section 8 against that tenant and got him evicted on that ground also. 8. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the order of the Rent Control Court as well as the judgment of the Appellate Authority. Sub section 8 of Section 11 is extracted as follows:- “A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.” R. C. R. No.263 of 2004 -11- 9. We are in agreement with the learned counsel for the respondent that in order that sub section 8 of section 11 applies, it is necessary that the landlord must be in occupation of a part of the building and the building which is subject matter of the RCP should be required for additional accommodation for the personal use of the landlord. There are decisions which take the view that sub section 11 of section 8 can apply even in cases where additional accommodation of a dependent family member is projected. But, that is not the case here. The case projected here is that the landlord and his father are conducting joint business in a portion of the larger building. The question to be answered is whether the landlord was successful in proving that case. All the documentary evidence available in the case will indicate that the R. C. R. No.263 of 2004 -12- fertilizer business belongs to PW1, the father only. Admittedly the FACT has given agency to the father of the petitioner for selling fertilizers and manures manufactured by them in a portion of the larger building. It is not easy to accept the case of the landlord that he is also having interest in that agency business especially in the present case where there is total dearth of documentary evidence. In this jurisdiction under section 20, this Court does not ordinarily re-appraise the evidence. Re-appraisal of the evidence if at all will be only to the extent of examining whether the judgment of the Appellate Authority which under the statutory scheme is the final court on facts is tainted by any illegality, irregularity or impropriety envisaged under Section 20. 10. Having scanned the order of the Rent Control R. C. R. No.263 of 2004 -13- Court and the judgment of the Appellate Authority, we are of the view that the findings entered therein are founded on evidence. There is another point to be examined. The need projected in the RCR is the need of the landlord/revision petitioner for additional accommodation. Even though the word bona fide does not find a place in sub Section 8 of Section 11 since sub Section 8 of Section 11 is qualified by sub Section 10, it is necessary that the above need is found to be bona fide. Bona fides is a state of mind which can be manifested only by a person who harbours the need in his mind. According to us, the non-examination of the landlord for the purpose of proving the need allegedly harboured in his mind to have additional accommodation, is fatal. Since we are in agreement with the Rent Control Court and the Appellate R. C. R. No.263 of 2004 -14- Authority in their views regarding the bona fide of the need projected and also regarding the maintainability of the RCP, we do not propose to go into the correctness of the finding entered by those authorities regarding the implication of proviso to sub section 10 of Section 11. The RCR, necessarily, has to fail. 11. However, we notice that the monthly rent of Rs.450/- being paid by the respondent to the revision petitioner was fixed some 12 years before. We feel that the above rent is very low. Having regard to the importance of the locality where the building is situated we are inclined to tentatively re-fix the rent at Rs.1,000/- per mensem subject to the right of either parties to move the Rent Control Court for regular fixation of fair rent. The RCR is dismissed. The rent payable by the respondent is tentatively re-fixed with R. C. R. No.263 of 2004 -15- effect from 01/02/2010 at Rs.1,000/- per mensem. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-