IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 RCRev..No. 86 of 2011() ----------------------- RCA.26/2006 of RENT CONTROL APPELLATE AUTHORITY , KOLLAM RCOP.14/2004 of ADDL.MUNSIFF COURT, KOLLAM .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS (S): -------------------- 1. CHINNAMMA DANIEL, W/O. V.P.DANIEL, VADAKKEN HOUSE, ASHRAMAM CHERRY, KOLLAM. 2. PHILIP DANIEL, S/O. V.P.DANIEL, OF DO. 3. JOHN DANIEL, S/O. V.P. DANIEL, OF DO. 4. ALEX DANIEL, S/O. V.P. DANIEL, OF DO. 5. ELIZABETH DANIEL D/O. V.P.DANIEL, OF DO. THE REVISION PETITIONERS 2,3 AND 5 HEREIN ARE REPRESENTED BY POWER OF ATTORNEY HOLDER ALEX DANIEL, 4TH REVISION PETITIONERS HEREIN) BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN SRI.JAMES JOSE RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- S.PREETHI, W/O. VIJAYA MENON SUDARSAN, PALLITHOOTTAM P.O. KOLLAM 691006. BY ADV.RAJA VIJAYARAGHAVAN. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.86 OF 2011 ------------------------ Dated this the 22nd day of February, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the legal heirs of the deceased tenant is the judgment of the Rent Control Appellate Authority ordering eviction on the ground under sub section (8) of Section 11. In fact, the landlady had invoked the grounds under Section 11(3) and 11(8) simultaneously. The Rent Control Court had ordered eviction on both these grounds. The Appellate Authority under the impugned judgment has confined the order of eviction to the ground under Section 11 (8). 2. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Sri.H.Ramanan, learned counsel for the revision petitioners, addressed strenuous and persuasives arguments before us based on those grounds. Mr.Ramanan would give more thrust in his submission to the RCR.No.86/2011 2 claim of the tenant for the benefit of the proviso to section 11 (10). According to the learned counsel, neither the Rent Control Court nor the Appellate Authority have considered the implications of the proviso to sub section (10) of Section 11. in this case. The Rent Control Court, according to Mr.Ramanan, was primarily concerned only with the ground under Section 11 (3) and provisos to Section 11 (3) of the Act. It is very casually that the implications of the provisos to Section 11(10) has been considered by the Rent Control Court. Reading over to us, the judgment of the Appellate Authority, Mr.Ramanan submitted that the Appellate Authority has not even seriously considered the proviso to Section 11 (10) of the Act. The Appellate Authority has in a casual manner endorsed the findings of the Rent Control Court regarding the above proviso. The learned counsel, therefore, requested that the issue be relegated back to the Appellate Authority so that the proper findings can be entered by that authority regarding the provisos to section 11 (10). 3. All the submissions of Mr.Ramanan were very stiffly resisted by Sri.Raja Vijayaraghavan, learned counsel who had lodged a caveat on behalf of the landlady. According to the RCR.No.86/2011 3 learned counsel, it is not correct to say that the Rent Court Court did not consider the applicability of the proviso to section 11 (10) . In this context he read over to us the order of the Rent Control Court. The learned counsel submitted that this is a case where on the basis of the admissions made by the tenant in evidence itself it can be held that the tenant is having other source of income for his sustenance and that so many buildings are available in the locality if it becomes necessary for the tenant to shift his business. Under the above circumstances, no hardship is going to be sustained by the tenant by the order of eviction. There is evidence in the case regarding the advantages which the landlady will gain by getting the order of eviction. The landlady has already secured the order of eviction in respect of other rooms occupied by other tenants so, the hotel business can be expanded and three Star classification can be secured for the hotel. The hotel is situated in a very prime locality of Kollam city and the advantages to be gained by the landlady by getting three star classification for her hotel would be considerable. Mr.Raja Vijayaraghavan would read over to us the evidence of RW1. RCR.No.86/2011 4 4. We have very anxiously considered all the rival submissions addressed at the Bar. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court. We have applied our mind to the items of evidence to which our attention was drawn by the learned counsel particularly Mr.Raja Vijayaraghavan. According to us the one question, which seriously arises for consideration, is whether the rent control petition in which eviction order is sought under Section 11 (8) is liable to be rejected by virtue of the operation of the provisos to Section 11(10). In other words, the question is whether the advantages, which will be gained to the landlady by getting the order of eviction, will outweigh the hardship which the tenant may sustain by the order of eviction. It is in evidence that the landlady is presently conducting a two star hotel very profitably in the building which is adjacent to the petition schedule building. It is also in evidence that the landlady requires more space for obtaining a three star classification. The evidence adduced on behalf of the landlady that the landlady has the need to secure three star classification for her hotel and that obtaining more space is indispensable for obtainment of RCR.No.86/2011 5 three star classification is quite inspiring. There is evidence in the case to hold that the advantage to be gained by the landlady by getting three star classification for her hotel situated in a prime locality of the Kollam city will be considerable. 5. Then the question is as to what is the hardship which the tenant will sustain and whether such hardship will outweigh the advantages which the landlady will undoubtedly gain. It is in evidence that the income derived from the tenant from the petition schedule building is not his sole means of livelihood. In other words, the tenant is having other sources of livelihood for his sustenance. In the context of the second proviso to Section 11(3), it has been convincingly held by the Rent Control Court that the tenant has miserably failed to establish that he satisfies either of the two ingredients of the second proviso to section 11 (3) of the Act. The tenant in his evidence as RW1 has confessed that so many other shopping complex have emerged recently in and around the Kollam city. Some of the shopping complex are situated very near to the petition schedule building. Thus the availability of other buildings for the tenant to shift his business has been clearly established by evidence in this case. RCR.No.86/2011 6 It is true that the learned Appellate Authority does not embark upon independent appraisal of the evidence and enter its own findings in the context of the proviso to section 11 (10). But the Rent Control Court has, in our view, considered the operation of the provisos to section 11 (10) as seriously as it has considered operation of the second proviso to Section 11(3). The learned Appellate Authority by endorsing the decision of the Rent Control Court in the context of the proviso to Section 11 (10), has actually endorsed the findings of the Rent Control Court. The question arising before us is whether there is any warrant for interference. The above question, in our view, can be answered only in favour of the landlady. We answer the same in favour of the landlady and confirm the judgment of the Appellate Authority as we do not find any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965 about the same. 6. As a last submission, Mr.Ramanan sought for one and half years time to surrender the premises. The above request is very stiffly opposed by Mr.Raja Vijaraghavan. According to him, the revision petitioners are all well placed in life and it is not RCR.No.86/2011 7 necessary that time should be given to them. If they are to be given time, it can only be for shifting the business to the buildings which are available in the locality. 7. Notwithstanding the opposition of Mr.Raja Vijayaraghavan, on the totality of the facts and circumstances obtaining in this case, there is justification for granting to the revision petitioners time till 31/1/2012 for surrendering the premises. We also feel that the petitioners will have to pay slightly higher amount as occupational charges. Under the above circumstances, the result of the above discussion will be as follows; i). The revision petition will stand dismissed. ii). The Execution Court is directed to keep in abeyance proceedings for delivery till 31/1/2012 subject to the following conditions; The first revision petitioner for herself and on behalf of other revision petitioners shall file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31/1/2012. Through the same affidavit, RCR.No.86/2011 8 it shall be undertaken that arrears of rent if any will be discharged within one month from today and that occupational charges at the rate of Rs.2,500/- per mensem will be paid with effect from 1/3/2011 till actual surrender of the building is given. The revision petitioners will get benefit of time granted as above, only if the affidavit directed as above is filed on time and all the undertakings therein are honoured. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk