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 25TH MAY 2011 / 4TH JYAISHTA 1933 RCRev..No. 171 of 2010() ------------------------ RCA.119/2003 OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.1/2002 OF RENT CONTROL COURT,. IRINJALAKUDA .................... PETITIONER(APPELLANT- PETITIONER) ----------------------------------------------------- MALATHY PAPPU, W/O.K.G.PAPPU, INDUSTRIAL ESTATE, AMBATTUR, CHENNAI, REPRESENTED BY POWER OF ATTORNEY HOLDER, RAMANATHAN, S/O.KANCHAYI KRISHNANKUTTY, VADAKKUMBHAGOM VILLAGE MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): (RESPONDENT-RESPONDENT) -------------------------------------- DAVIS, S/O.KUTHANVEETTIL KUNJAVARA, AMBAZHAKKADU DESOM, VADAKKUMBHAGOM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25 /05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- RCR. No. 171 of 2010 ----------------------------------------------- Dated this the 25th day of May, 2011 O R D E R Balakrishnan, J. Though the respondent was served with notice he did not turn up. 2. The landlady is in revision. Eviction was sought under Section 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. RCP was dismissed by the Rent Control Court mainly on the ground that it is barred by res judicata. The learned Appellate Authority found that the claim is not barred under Section 15 of the Act, but it was found that the claim cannot fall under Section 11(8) of the Act, but only under Section 11(3) of the Act. It was found by the learned Appellate Authority that the landlady was not examined and that the need urged by the landlady could not be proved to be bona fide. Hence the claim was disallowed by the Appellate Authority. RCR. 171/10 -2- 3. Sri. P.Ramakrishnan, the learned counsel for the revision petitioner has argued inextenso referring to the grounds raised in the revision petition. He would submit that the finding entered by the learned Appellate Authority that the claim would not fall under Section 11(8) is unsustainable. There are three rooms in the ground floor. The petition schedule room is the middle room situated in the ground floor of the building. The landlady is in occupation of one of the rooms upstairs of that building. It is also the admitted case that the landlady is conducting business in pesticides and fertilizers in the two rooms situated in the rear portion of the ground floor portion of the building. That means, the petition schedule room is a portion of the larger building of which the two rear rooms are in the occupation of the landlady, where the landlady is conducting her business. As such according to the learned counsel for the revision petitioner, the claim would squarely RCR. 171/10 -3- fall under Section 11(8) of the Act. The learned Appellate Authority would find that since the landlady is doing business in the aforesaid items in the two rear rooms and since the claim is for having an office room cum retail shop for such business that claim cannot fall under Section 11(8) of the Act. We cannot subscribe to that view. The actual need projected by the landlady under section 11(8) is to have a retail shop room cum office room as part of the same business conducted in the two rear rooms. Since that room is part of the same building and since the landlady is in occupation of those two rear rooms for conducting the business we find no hesitation to hold that the claim would certainly fall under Section 11(8) of the Act. The finding to the contrary entered by the learned Appellate Authority has to be set aside. 4. It was also argued by the learned counsel for the revision petitioner that the revision petitioner is conducting RCR. 171/10 -4- another business in another building and as such it cannot be said that the hardship that would be caused to the tenant would outweigh the advantage the landlady can gain by getting order of eviction. But it is seen that no definite finding was entered by the court below regarding the comparative hardship as required under the proviso to Section 11(10) of the Act. It is also submitted by Sri. P. Ramakrishnan, learned counsel for the revision petitioner that before the Rent Control Court and also before the Appellate Authority the landlord offered to give to the tenant the room presently occupied by the landlady in the upstair portion. In the petition schedule room the tenant is stated to be conducting a studio. Therefore there can be no difficulty for the tenant to conduct his studio in the room situated upstairs. The learned counsel submits that the offer so made earlier is still there. Since no definite finding was given pertaining to proviso to Section 11(10) the matter RCR. 171/10 -5- has to be remanded to the Rent Control Court to decide the question of comparative hardship. It is seen that the rent paid by the tenant is only Rs.100/-. According to the counsel, the petition schedule building would fetch more than Rs.1000/- if let out today. Since the amount of Rs.100/- which is presently paid by the tenant is ridiculously low, we find it is just and proper to re-fix the monthly rent at Rs.500/- with effect from 1-6-2011. If the parties are aggrieved by this re-fixation of the rent, they can get the fair rent fixed under section 5 of the Act. In the result this revision is allowed in part. The order passed by the Rent Control Court and the judgment of the Appellate Authority are set aside. The matter is remanded to the Rent Control Court for fresh decision. We hold that the claim for additional accommodation put forward by the landlady under Section 11(8) is bona fide. The Rent Control Court will consider the question of comparative RCR. 171/10 -6- hardship in terms of the proviso to Section 11(10) of the Act. The monthly rent payable by the respondent is re-fixed at the rate of Rs.500/- with effect from 1-6-2011. Before proceeding with the enquiry the Rent Control Court would explore the possibility of a settlement in view of the offer made by the landlady to give to the tenant possession of the room upstairs of the building. The Rent Control Court would pass order afresh as expeditiously as possible, at any rate, within four months of receipt of copy of this order. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-