IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 RCRev..No. 255 of 2008(A) ------------------------- RCA.97/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM RCP.4/2005 of ADDL.MUNSIFF COURT,KOCHI .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- ISMAIL, AGED ABOUT 56 YEARS, S/O.ABDUL KHADAR, C.C.II/W1076, KAPIRITHURUTH DESAM, FORTCOCHIN, KOCHI-682001. BY ADV. SRI.K.N.CHANDRABABU SRI.T.G.KALADHARAN RESPONDENT: APPELLANT/PETITIONER ----------------------------------- MRS.P.M.NABEESA, W/O.ABDUL REHIMANKUTTY, MATHULAKATH HOUSE, KAPIRITHURUTH DESAM, FORT KOCHI KOCHI-682001. ADV. SRI.M.A.ASIF SRI.SABU GEORGE FOR R SRI.PAUL PARAKAL FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. 1567 & 2890/2009 IN R.C.R. 255 OF 2008 DISMISSED: 5/11/2009 SD/- PIUS C.KURIAKOSE, JUDGE SD/- K. SURENDRA MOHAN,JUDGE jj /TRUE COPY/ P.S. TO JUDGE PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NO: 255 OF 2008 -A ----------------------------------------------------------------------------------- Dated this the 5th November, 2009. O R D E R PIUS C.KURIAKOSE, J. The tenant is the revision petitioner. He challenges in this revision the order of eviction passed by the Rent Control Appellate Authority against him on the ground of additional accommodation in reversal of the order of the Rent Control Court dismissing the Rent Control Petition. It was the ground under Sub Section (8) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965, that was invoked by the respondent/landlady. It was specifically pleaded by the respondent/landlady that the petition schedule building is a portion of a larger building and that the landlady and family are in occupation of the other portions of the larger building. It was also averred that the respondent is a lessee in occupation of the petition schedule building. The averment of the landlady that the petition schedule building as well as the building portions occupied by the landlady together constitute one larger building, is not specifically denied in the statement of objections. So also, the averment of the landlady in the RCP as well RCR 255/2008 2 as in the separate statement of particulars under Rule 12 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, that the revision petitioner is a tenant was also not specifically denied. However, the bonafides of the need for additional accommodation was disputed before the Rent Control Court. The evidence consisted of Exts.A1 to A4. The oral testimonies consisted of P.W.1 the landlady and P.W.2 the Advocate Commissioner who conducted local inspection. On the side of the tenant the same consisted of tenant's oral testimony as R.W.1. The Commissioner's report and plans were marked as Exts.C1 and C1(a). The Rent Control Court on evaluating the evidence concluded that the need projected by the landlady that she needs additional accommodation for her personal use is a bonafide one. However, relying on Ext.C1 and the oral evidence adduced by the tenant the said Court would accept the tenant's case in evidence that the building occupied by the landlady is door No: 10/276 and the door number of the portion occupied by the tenant is 2/153. Relying on the judgment of the Supreme Court in Ganga Ram v. Shanker Reddy (AIR 1989 SC 302) and also the judgment of this Court in Mandal Gopalan v. Rohini {1997 KLT 386} that when the test whether the building occupied by the tenant can be independently occupied or sold his plot is RCR 255/2008 3 applied it will have to be found that the building occupied by the tenant can be separately laid down or sold and hence the building occupied by the tenant and the building occupied by the landlady do not form part of the building under Sub Section (8) of Section 11 of the Act. Taking that view of the matter Rent Control Court found that the application for eviction under Sub Section (8) of Section 11 is not maintainable. The Rent Control Court enquired into the question on the application of the proviso to Sub Section (10) of Section 11 - comparative advantages and hardships. The Court found that the hardship which will be sustained by the landlord by declining eviction will not outweigh the hardship which will be sustained by the tenant if order of eviction is passed. Accordingly the RCP was dismissed. The Appellate Authority re-appraised the evidence. The Appellate Authority found that the physical existence of the building portion of the petition schedule building and the building occupied by the landlady as portions of a larger edifice despite pleading in the RCP was not specifically disputed. Analysing the Commission report that authority found that the same was also to the effect that the two buildings constituted portions of one and the larger building. Distinguishing the decisions relied on by the Rent Control Court on facts in the RCR 255/2008 4 context of the relevant statutory provisions viz., Sub Section (8) of Section 11 the Appellate Authority following the judgment of the Division Bench of this Court in John v. Manuel {2004(3) KLT 318} the Appellate Authority found that the two buildings together constituted one building and hence Sub Section (8) of Section 11 was applicable to the present case. Re-appraising the evidence the authority concurred with the conclusion of the Rent Control Court that the need for additional accommodation was bonafide. The Appellate Authority, however did not specifically consider the question of comparative advantages and hardships as envisaged by the proviso's to Sub Section (10) of Section 11. That Authority however noticed that the contention raised by the tenant was that he was carrying on business of Maniputtu in the petition schedule building and the income derived from that business is the only source of livelihood for the tenant. According to the Appellate Authority the above contention could not be accepted in the present case since the building was let out to the tenant for residential purposes. According to that Authority since the tenant at any rate will have to find out a building for residential purposes it will be possible for the tenant to carry on business in that building. Accordingly the Appellate Authority reversed the decision RCR 255/2008 5 of the Rent Control Court under Sub Section (8) of Section 11. In this revision under Section 20 the tenant impugns the judgment of the Appellate Authority on various grounds. 2. We have heard the submissions of Mr. K.N.Chandrababu and those of Mr. Sabu George, learned counsel for the respondent. 3. The point which was highlighted before us initially by Mr. Chandrababu was that the petitioner in the RCP does not have title over the sublet building. He referred to Ext.A1 and submitted that the only building which is conveyed to the landlady is building having door No:10/276. Learned counsel submitted that the door number of the building occupied by the tenant/revision petitioner is 2/155(3). 2/155(3) is not the building covered by Ext.A1. The immediate response of Mr. Sabu George for the above submission was that there is no separate building having door No: 2/155(3). According to him the building having door No: 2/155(3) belongs to somebody other than the petitioner in the RCP. 4. We directed Mr. Chandrababu to produce certified copy of the assessment register pertaining to that building before us. In response to that order the memo dated 19.10.2009 issued by Kochi Corporation is produced before us. The memo is to the effect that as per the assessment records of the Corporation no building RCR 255/2008 6 having No: 2/155(3) adjacent to building having door No: 2/1076, has been assessed to property tax and hence the Corporation is unable to produce the certified copy of the assessment register. Even though on the basis of this memo Mr. Chandrababu submitted that the Corporation themselves admitted that the building is not assessed. 5. We are not impressed by the above submission. According to us the memo means that no building having separate door No: 2/155(3) exists. We have scanned the judgment of the Appellate Authority which under the statutory scheme is the final court on facts. We notice that the finding that the petition schedule building and the building presently occupied by the landlady together constitute one large building, is founded on the admissions raised by the pleadings of the tenant and also the Commission report. Having regard to the well defined contours of our revisional jurisdiction we do not find any warrant for varying the above finding. Once it is found that the petition schedule building as well as the building portion occupied by the landlady are portions of a larger building, the only question to be considered is whether the need for additional accommodation for personal use is bonafide. As already indicated the Rent Control Court itself has rendered a RCR 255/2008 7 finding that the need is bonafide. The oral evidence adduced by the landlady in the above regard, according to us is also convincing and we do not find any reason for upsetting the above finding. It is by now trite that the standards for establishing the bonafides under Sub Section (8) of Section 11are not so stringent. In a given case eviction on the ground of additional accommodation can be granted even when the additional accommodation amounts to a luxury provided it does not come out in evidence that the need is projected for some oblique purposes. 6. We are therefore in agreement with the authorities below that the need for additional accommodation is bonafide. The result is that RCR is dismissed. The Appellate Authority has not specifically considered the question of comparative advantages and hardship. However, we will notice that no proper pleading in that context is raised by the tenant. We appreciate the evidence and find that the landlady will outweigh the hardship to be sustained by the tenant. Since we are deciding the issue raised instead of remitting the matter back to the appellate authority we are inclined to consider the last request of Mr. Chandrababu that at least one year's time be granted. We are inclined to grant long period of time to the revision petitioner for surrendering the premises, however RCR 255/2008 8 subject to conditions:- a) The entire rent as alleged in the Rent Control Petition at the rate mentioned in the Rent Control Petition till date should be paid within two months. b) Occupational charges at the same rate should be paid till date of surrender. Affidavit incorporating an undertaking to the above effects to be filed by the revision petitioner within three weeks from today. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: