IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 RCRev..No. 257 of 2007() ------------------------ RCA.160/2006 ON THE FILE OF THE COURT OF THE RENT CONTROL APPELLATE AUTHORITY, DISTRICT JUDGE,KOZHIKODE RCP.62/2004 ON THE FILE OF THE COURT OF THE RENT CONTROLLER/ PRINCIPAL MUNSIFF-I, KOZHIKODE. .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ A.RAVEENDRAN, S/O CHOYIKUTTY, RESIDING AT AREEKKANADATH, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. (DIED) THE SOLE PETITIONER DIED AND ADDITIONAL PETITIONERS ARE IMPLEADED AS PETITIONERS 2 TO 4 VIDE ORDER DATED 26-6-2008 IN I.A. NO. 1390/2008. ADDL. 2. A. SOBHANA, D/O.GOPALAN, AGED 56 RESIDING AT “AREEKANADATH” KACHERI AMSOM DESOM, KOZHIKODE TALUK. 3. A. SHEENA, D/O.LATE REAVEENDRAN, AGED 35, RESIDING AT “AREEKANADATH”. KACHERI AMSOM DESOM, KOZHIKODE TALUK. 4. A.SHIBINRAJ, S/O. LATE RAVEENDRAN, AGED 53, RESIDINGA T “AREEKANADATH”, KACHERI AMSOM, DESOM, KOZHIKKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ SUDHAKARAN, S/O APPU, RESIDING AT MALLISSERY HOUSE, EAST NADAKKAVU, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.T.R.RAVI SRI.P.S.MURALI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R No representation for the petitioner today also. The R.C.R. is dismissed for default. Sd/- Pius C. Kuriakose, Judge. 17-8-2009. Sd/- K.Surendra Mohan, Judge. /true copy/ P.A. to Judge. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.257 of 2007 ---------------------------------- Dated this the 2nd day of June, 2010 O R D E R --------------- Pius C.Kuriakose,J. Under challenge in this revision filed by the tenant is the order of eviction passed by the Rent Control Appellate Authority for the first time under Section 11(8) of Act 2 of 1965. The petition schedule building is ground floor portion of a two-storied building. In the first floor portion, a tailoring business is being conducted and the need projected invoking Section11(3) was that in the ground floor portion a textile business is to be conducted. The Rent Control Court on evaluating evidence that was adduced by the party came to the conclusion that the need projected under Section 11(3) is bonafide and that the tenant is not entitled for the protection of the provisos. Accordingly the order of eviction was passed under Section 11(3). The ground which was prominently urged by the revision petitioner before the appellate authority was that on the fact situation which obtains in the case the RCR.257/07 2 apposite ground for eviction if at all the need is bonafide is the ground under Section 11(8). This argument was raised since it had become evident that the tailoring business being conducted in the first floor was a joint venture of the husband and the wife and the proposed textile business was also expected to be conducted as a joint venture. Whatever that be, the above argument that the petition can lie under Section 11(8) and not under Section 11(3) found favour with the Rent Control Appellate Authority. What the Rent Control Appellate Authority did was to accept the above argument and proceed to pass an order of eviction under Section 11(8) modifying the order of eviction which had been passed by the Rent Control Court under Section 11(3). 2. In this revision under Section 20 various grounds have been raised and Sri.C.P. Mohammed Nias, learned counsel for the revision petitioner submitted that serious prejudice has been caused to the tenant by what was done by the Appellate Authority. The learned counsel argued that the revision petitioner was never called upon to defend a petition under Section 11(8). Though the standards of bonafides required for succeeding in a petition under Section 11(8) may RCR.257/07 3 not be so stringent as in a case under Section 11(3), grounds under Section 11(3) and 11(8) are two independent grounds and the considerations including the aspects to be taken into account after findings are entered regarding bonafides of the need are different. If the revision petitioner had been called upon to defend a claim under Section 11(8), he would have certainly contended that even if the need is bonafide, the advantages which the landlord will gain will not outweigh the hardship which the tenant will sustain. Since the Rent Control Petition was not under Section 11(8) the revision petitioner was not able to take up such a contention and much less adduce evidence regarding the hardship which the tenant will sustain. Strong reliance was placed by Mr.Nias on an unreported judgment of this court in RCR.340/2005 and it was submitted that in the fact situation which obtains in the present case what the learned Appellate Authority should have been done was to dismiss the Rent Control Petition and not to allow the Rent Control Petition on a ground which had not been invoked. 3. Meeting the arguments of Mr.Nias, Sri. T.R.Ravi, learned counsel for the landlord submitted that since the RCR.257/07 4 Rent Control Court had passed an order of eviction under Section 11(3) and since the ultimate order passed by the Appellate Authority (the impugned judgment) is in favour of the respondent, the respondent is entitled to canvass for restoration of the order of eviction passed by the Rent Control Court. According to Mr. Ravi, the apposite eviction ground which is available in the case of the landlord is the ground which was upheld by the Rent Control Court. In this context he would draw our attention to the pleadings and the evidence and also the findings entered by the Rent Control Court. 4. We have anxiously considered the rival submissions addressed at bar. We have gone through the Rent Control Petition and found that eviction has been sought for by the landlord specifically under Section 11(3). We also find from the impugned judgment that a clear finding has been entered by the learned Appellate Authority that the eviction petition is maintainable under Section 11(8) only. That finding, on re-appreciating the evidence appears to be a reasonable one. In fact, it is evident that the tailoring business which is being conducted in the first floor is joint RCR.257/07 5 business of the petitioner and his wife and the textile business which is proposed to be conducted is also a joint venture of the husband and wife. Textile business is proposed (it is discernible from the evidence) as some sort of an allied business to the on going business of tailoring. At any rate, we do not find any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965 about the finding of the Appellate Authority that the proper eviction ground to be invoked is sub-section (8) of Section 11. 5. The question which now arises is whether the Appellate Authority was justified in ordering eviction under sub-section (8) of Section 11 taking the view that since the standards of bonafides to be established in a case under Section 11(8) are liberal, prejudice will not be caused to the tenant by ordering eviction under Section 11(8). True, the standards of bonafides are liberal in a case under 11(8) in comparison to a case under 11(3). But then 11(8) unlike 11(3) is qualified by the proviso to sub-section (10) of Section 11. It is trite that under the proviso to sub-section (10) of Section 11 both the landlord and the tenant have burden of proof. The landlord will have to adduce evidence regarding the RCR.257/07 6 advantages to be gained by the landlord and the tenant will have to adduce evidence regarding the hardships to be sustained by the tenant. In the instant case, the tenant was never called upon to defend a case under 11(8). The argument of Mr.Niyas that prejudice has been occasioned to the tenant by the order of eviction passed by the Rent Control Appellate Authority under sub-section (8) of Section 11 in the absence of pleadings is meritorious. We are therefore inclined to interfere with the judgment of the Appellate Authority. 6. We notice that the building in question is situated in a commercially very important point of Calicut City Corporation. The current rate of rent viz., Rs.250/- per mensem was fixed about 10 years ago. This rate, as rightly submitted by Mr.T.R.Ravi, is far below the market rate. We feel that even as the Rent Control Court is reconsidering the case pursuant to this order the rent should be tentatively re- fixed. 7. The result of the above discussion is as follows. The impugned judgment is set aside. RCP.62/2004 is remanded to the Principal Rent Control Court, Kozhikode. RCR.257/07 7 That court is directed to permit the respondent to amend the pleadings in the Rent Control Petition. If pleadings are amended the revision petitioner should be allowed to submit counter pleadings and parties shall be allowed to adduce whatever further evidence they want to. Rent is tentatively re-fixed with effect from 1.7.2010 at Rs.1000/- per mensem. We make it clear that the above re-fixation is only tentative and will be subject to regular fixation of fair rent by the Rent Control Court upon motion by either of the parties if they want to. Rent Control Court will dispose of the RCP and pass revised order within five months of receiving copy of this order. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb/ksv