IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 RCRev..No. 48 of 2007() ----------------------- RCA.137/2001 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.104/1997 of MUNSIFF COURT, THALASSERY .................... PETITIONER-RESPONDENT-RESPONDENT: ----------------------------------------------------- OTHAYOTH GOPALAN, SON OF PAITHAL, MERCHANT, EDAKKAD, KANNUR. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): APPELLANT-PETITIONER: ------------------------------------ MANNAMBETH KEETTA KANDY REEJA, D/O. SREEDHARAN, EDAKKAD AMSOM, KANNUR. ADV. SRI.V.RAJAGOPAL THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.48 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009 ORDER Pius.C.Kuriakose, J. A tenant who is ordered to be evicted on the ground of additional accommodation has come up in revision . The need projected by the respondent/landlady was that the schedule building is one room in a building having three rooms in the ground floor and that the other two rooms are presently occupied by her husband for doing various types of businesses. The landlady needs additional accommodation for her personal use i.e. conduct of business by her husband. 2. The bonafides of the need and the claim were resisted by the revision petitioner/tenant. It was contended by him that the need and the claim was bereft of any bonafides. It was alleged that though the landlady is having two rooms in her possession, the husband of the landlady carries on business actually only in one room . The other room is used only as a storage place for unnecessary articles. It was alleged that the R.C.P. has been instituted without bonafides because RCR.No.48/07 2 the tenant was not prepared to oblige to the landlady's request for enhancement of rent from Rs.60 to Rs.500. Alternatively, the tenant contended that the hardship which will be sustained by the tenant will outweigh the advantages which the landlady may gain by getting eviction. 3. Evidence at trial before the Rent Control Court consisted of Exts.A1 to A8 and the oral testimonies of PWs 1 to 3 on the side of the landlady and Exts.B1 to B6 and the oral testimony of RW1 on the side of the tenant. Apart from that Ext.C1 was the Commissioner's report and Ext.C2 was the plan submitted by the Commissioner. The Rent Control Court on evaluating the evidence concluded that the landlady's claim for additional accommodation was not bonafide. It was also held that the hardship which will be sustained by the tenant in the event of eviction will outweigh the advantages, if any which may be gained by the landlady. In appeal, however, the learned Appellate Authority made a reappraisal of the evidence and interfering with all the findings of the Rent Control Court concluded that the need for additional accommodation projected in the R.C.P. was bonafide. It was RCR.No.48/07 3 also concluded that the tenant was unsuccessful in establishing that he will sustain any hardship due to eviction and also that at any rate the tenant has not established that the hardship to be sustained by him will outweigh the advantages which may be gained by the landlady. 4. In this revision under Section 20, the tenant has raised various grounds and we have heard the submissions of Sri.T.R.Harikumar, learned counsel for the petitioner/tenant and those of Sri.G.Mohan, learned counsel for the respondent/landlady. Sri.Harikumar would assail the judgment of the Rent Control Appellate Authority. According to him, there was absolutely no warrant for interfering with the findings of the Rent Control Court. He submitted that the Rent Control Court had the advantage of seeing the witnesses and recording their evidence. That court was not inspired by the testimonies of the witnesses. The Advocate Commissioner's report - Ext.C1 was a big piece of artificial evidence and was rightly held to be so by the Rent Control Court. The Appellate Authority without expressing any opinion regarding the finding of the Rent Control Court as regards the probative value of Ext.C1 has chosen to ignore Exts.C1 RCR.No.48/07 4 and C2. The interference by the Appellate Authority was contrary to law. The licence for doing business in crackers has been issued by the licencing Authority only in respect of the petition schedule building. It will be almost impossible for the tenant to obtain a fresh licence in respect of any other building . In this way, the hardship to be sustained by the tenant due to eviction will be irreparable, so submitted Sri.T.R.Harikumar. 5. Sri.G.Mohan, learned counsel for the landlady submitted that this court is not expected to re-appreciate the evidence and substitute this court's conclusion of facts for the conclusion of facts arrived at by the Appellate Authority. He submitted that under the statutory scheme, Appellate Authority is the final court on facts. He submitted that all the findings of the Appellate Authority are based not only on evidence, but also on binding judicial precedents. Every contention raised by the tenant has been answered on the authority of binding judicial precedents by the Appellate Authority. There is no illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction on the judgment of the Appellate Authority. RCR.No.48/07 5 6. We have anxiously considered the rival submissions. Since the findings of the authorities below are divergent, we have made a reappraisal of the evidence. It is trite that the rigour of establishing bonafides in the context of an application under Sub Section 8 of Section 11 is relatively less compared to the rigour of establishing bonafides under sub Section 3 of Section 11. This court has held that additional accommodation can be granted even as a luxury. The only enquiry of the court should be whether in seeking additional accommodation, the landlord is actuated by any oblique motives or is advancing an honest case. The Rent Control Court came to the conclusion that the landlady is having sufficient space for expanding her husband's business on the basis of a finding that the landlady is not utilising the second room in her possession fully for the purposes of business. According to that court, a Pathayam and several other articles have been kept in the second room and if the Pathayam and other articles are shifted to the upstair portion, sufficient vacant space will be available in the second room itself and it will be possible for the landlady to get additional accommodation even without disturbing the RCR.No.48/07 6 tenant. 7. Sri.Mohan , learned counsel for the landlady submitted that the landlady does not own or possess the upstair portion . It was submitted that upstair portion was actually occupied by some political parties for their office purposes. Sri. T.R.Harikumar was not in a position to refute the above submission of Sri.G.Mohan. Even otherwise, we are in agreement with the learned Appellate Authority who says that it is not for the authorities under the Rent Control Act to say where the landlady should keep her Pathayam. Perhaps, Pathayam is used for storing groceries which are the main merchandise of the business of the landlady's husband. Thus the finding of the Rent Control Court that the landlady is not in need of additional accommodation suffers from a basic error. It is that error which has been rectified by the Appellate Authority giving reasonable reasons. More over, as rightly submitted by Sri.G.Mohan every finding of the Appellate Authority is supported by binding judicial precedents. We are in agreement with those precedents rendered by earlier Division Benches of this court. RCR.No.48/07 7 8. The question of comparative advantages and hardship has been specifically considered by the Appellate Authority. It is in evidence that other buildings are available in the locality. See the testimony of AW 3 as well as Ext.A3 property tax assessment register. When it is shown that other buildings are available in the locality, the burden shifts to the tenant to show that those buildings are not suitable for his purpose. We are of the view that the hardship which will be sustained by the tenant by any order of eviction passed against him can be alleviated to a considerable extent if another building is available in the locality for him to occupy. We find some merit in the submission of Sri.T.R.Harikumar that it may not be very easy for the tenant to obtain fresh licence for sale of crackers. But then we are informed by Sri.G.Mohan that the said licence presently stands cancelled and that the issue is now before this court in the writ jurisdiction. Whatever that be, we feel that if the tenant is successful in the O.P. and if the licence is revived for getting that licence shifted to another room, there may not be so much difficulty as obtaining a brand new licence. The finding of the Appellate Authority regarding the advantages which will RCR.No.48/07 8 enure to the tenant is a reasonable finding. In other words, we do not find any illegality, irregularity or impropriety in the findings of the Appellate Authority. 9. We notice that the revision petitioner/tenant is a man who has reached the evening period of his life. We feel that in the facts and circumstances of this case, there is justification for granting him an unusually long period to vacate the premises. Hence even as we confirm the order of the Appellate Authority dismissing the RCR, we direct the execution court not to order and effect delivery of the petition schedule building till 31/07/2010 subject to the following conditions : The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31/07/2010. It will also be undertaken by him that he will discharge arrears of rent, if any, and will continue to pay occupational charges at the current rent rate till he RCR.No.48/07 9 surrenders, promptly and regularly. The affidavit is to be filed within six weeks from today. It is made clear that the revision petitioner will get the benefit of time granted under this order only if he complies with the above direction regarding filing of affidavit. PIUS C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.48/07 10