IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 RCRev..No. 122 of 2007() ------------------------ RCA.63/2003 of ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM RCP.17/2001 of III ADDL.M.C.EKM (RENT CONTROL) ............................ PETITIONER/APPELLANT/PETITIONER (S): -------------------- GRAND ENTERPRISES, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER, K.J.FRANCIES. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENT/RESPONDENT --------------- M/S.SHARMA TRANSPORTS, SANGEETHA BHAVAN, 328, TIPPU SULTHAN PALACE ROAD, FORT BANGALORE- 560 002. ADV. SRI.MILLU DANDAPANI FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 122 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2009 ORDER P.Q.Barkath Ali, J. Revision petitioner is the landlord and he challenges the order of the Rent Control Court, Ernakulam in R.C.P.No.17/2001 dated January 10, 2003 dismissing the Rent Control Petition which was confirmed in appeal by the Rent Control Appellate Authority, Ernakulam 2. The revision petitioner/landlord filed R.C.P.No.17/2001 before the Additional Munsiff Court, Ernakulam seeking eviction under Section 11(8) of the Rent Control Act . The petitioner is Grand Enterprises, M.G.Road, Ernakulam represented by its Managing partner. The firm is running a three star grand hotel situated on the western side of M.G.road. On the eastern end of the garage, the space was used for car parking which was now converted into office room and rented out to the respondent for office in 1994. The respondent is M/s.Sharma Transports. Subsequently , one more floor was constructed on the hotel building and vast renovations were made. RCR.No.122/2007 2 Now the garage area for parking the vehicles of customers visiting the hotel has become quite insufficient. Therefore the landlord sought for eviction of the petition schedule room under Section 11(8) of the Act as an additional accommodation for car parking space for his hotel. 3. The respondent resisted the petition on the ground that there is sufficient parking space behind the hotel and that the claim of the landlord is only a pretext for evicting the respondent and that respondent is depending mainly for his livelihood on the income derived from the business conducted in the petition schedule shop room. 4. PWs 1 and 2 were examined and Exts.A1 to A6 were marked on the side of the landlord. On the side of the respondent/tenant, RW1 was examined and Exts.B1 to B10 were marked and Exts.C1 and C2 series reports and rough sketch of the Commissioner was also marked. The Rent Control Munsiff found that the landlord is not entitled to an order of eviction under Section 11(8) of the Act and dismissed the petition which is confirmed in appeal. 5. The only point which arises for consideration is whether the RCR.No.122/2007 3 revision petitioner is entitled for an order of eviction under Section 11(8) of the Act. 6. Counsel for the revision petitioner citing the decision in Lexmana Naikan v. Gpalakrishna Pillai ( 1981 KLT 161) contended that test of bonafides under Section 11(8) read with Section 11(10) is not whether the landlord could very well afford to live without the additional accommodation, but in seeking the additional accommodation, the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction. 7. Counsel for the respondent on the other hand argued that there is sufficient space available for car parking for the landlord and that even if the respondent is evicted, in that space only one or two car can be parked and that therefore the claim of eviction put forward by the landlord is not bonafide. 8. Sri.Sumathy Dandapani, the learned senior counsel for the tenant argued that the petition schedule building is not a part of Hotel building and that therefore Section 11(8) of the Act is not attracted. Sri.Mathew John would submit that petition schedule building is the RCR.No.122/2007 4 garage of the Hotel and that therefore it is part of the Hotel building. What is part of a building is explained by the Apex Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee (2001(1) SCC 564) following the decision in Kalpakam Amma v. Muthurama Iyer Muthurkrishna Iyer and another (AIR 1995 Kerala 99) that part of a building does not refer to the land on which the building is constructed, but refer to any other superstructures which is part of the main building. In the light of the principles laid down in the above decision, the above argument advanced by the counsel for tenant cannot be accepted and we hold that in the present case Section 11(8) of the Act is attracted and not Section 11(3) of the Act. 9. The Commissioner has filed his report and plan Ext.C1 and C1(a) and he was also examined as PW2 before the trial court . It is seen from Ext.C2 sketch that on the northern side of the hotel, there is 650 sq. metre open space and in front of the petition schedule building, there is 60 sq.metre space all these within the hotel compound, is available and at a time 60 cars can be parked in that area. PW2 the Commissioner has also reported and it is also seen from Ext.C1(a) that RCR.No.122/2007 5 on the eastern side of the Bar, four cars can be parked. The Commissioner has also found that if the petition schedule building is demolished, only two cars can be parked in that space. 10. The counsel for revision petitioner Sri.Mathew John argued that the 650 sq. meter open space on the northern side of the hotel building is used as an area appended to the lawn shown nearby and cannot be used for parking vehicles and that an opportunity may be given to him to adduce evidence in this aspect. We find his request reasonable as if that space is excluded, it appears that the remaining space available is not sufficient to park the vehicles. We therefore set aside the impugned order of Rent Control Court and the judgment of Rent Control Appellate Authority and remand the matter to that Rent control Court to consider afresh the claim of landlord for eviction under Section 11(8) of the Act. Both the parties are entitled to amend their pleadings if they choose and adduce further evidence to support their case. In the result, the Rent Control Revision is allowed by way of remand. The impugned order of Rent Control Court and that of the RCR.No.122/2007 6 Rent Control Appellate Authority are set aside. The RCP is remanded to the Rent Control Court for fresh disposal in accordance with the findings mentioned above. Parties shall bear their own costs. As the RCP is of the year 2001, the Rent Controller shall dispose of the same within six months from the date of receipt of the copy of this order. PIUS C. KURIAKOSE JUDGE P.Q.BARKATH ALI sv. JUDGE The final order dated 01/12/2009 in R.C.R.No.122/2007 is modified by incorporating the following sentence in paragraph 10 (page 5) between the sentence ending with the word “vehicles” and the sentence starting with the words “We,therefore, set aside the impugned order”:- “The counsel for the revision petitioner Sri.Mathew John further argued that the space inside the petitioner's premises is not sufficient to RCR.No.122/2007 7 provide parking space for the customers coming to the hotel premises and therefore the petitioner was constrained to take the property having an extent of 21 cents on lease covered by Annexure-A lease deed”. Vide order dated 08/04/2010 in I.A.No.206/2010 in R.C.R.No.122/2007. Sd/- Registrar ( Judicial) RCR.No.122/2007 8