IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RCRev..No. 166 of 2009() ------------------------ RCA.27/2006 of D.C & SESSIONS COURT,TRIVANDRUM RCP.68/2004 of PRL.M.C.,TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER: ------------------------------------------------- APPUKUTTAN NAIR, S/O.KUMARA PILLAI, AGED 50 YEARS, PROPRIETOR, PONNUMANGALAM FAST FOOD AND TEA SHOP, TC 8/557, SREEKARIYAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN RESPONDENTS: RESPONDENTS/PETITIONERS: --------------------------------------- 1. VIKRAMAN SALI JOHN, S/O.LATE RAJAPPAN, AGED 34 YEARS, S.N.V.SADANAM, SREEKARIYAM, THIRUVANANTHAPURAM. 2. N.SATHYAVATHI DEVI, W/O.LATE RAJAPPAN, S.N.V.SADANAM, SREEKARIYAM, THIRUVANANTHAPURAM. BY SR. ADV SHRI. T.KRISHNAN UNNI ADV. SRI.K.G.MOHANDAS PAI FOR CAVEATOR SRI.K.P.SUJESH KUMAR FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NO:166 OF 2009 ----------------------------------------------------------------------------------- Dated this the 11th December, 2009. O R D E R SURENDRA MOHAN, J. This is a tenant's revision against concurrent orders of eviction granted by the Rent Control Court and confirmed by the Rent Control Appellate Authority. 2. The tenant is conducting a small hotel in the petition schedule premises which was taken on rent as per a registered rent deed dated 20.10.1987. The shop room is at Sreekaryam, Trivandrum. The initial rent was Rs.600/- per month which, according to the landlord, was being enhanced periodically and the present rent is Rs.4,500/- per month. However, this fact is disputed by the tenant and according to him the rent is only Rs.600/- even now. 3. The first respondent who is one of the landlords is conducting a pan shop in the adjacent shop room. He filed the Rent Control Petition seeking eviction on the grounds under Section 11(2)(b), Section 11(4)(ii), (Section 11(3) and Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965, RCR 166/2009 2 hereinafter referred to as the 'Act' for short. The Rent Control Petition was contested by the tenant contending that the grounds put forward for evicting him were all fictitious and untenable. 4. The Rent Control Court tried the petition. The evidence in the case consists of Exts. A1 to A16 documents and the oral evidence of P.W.1 on the side of the landlords and Exts. B1 to B6 documents and the oral evidence of C.P.Ws 1 and 2 on the side of the tenant. Ext. C1 Commission report was also marked. 5. On a consideration of the evidence on record, the Rent Control Court found that the need put forward by the landlords was genuine. Accordingly eviction was granted on all the grounds except the ground under Section 11(4)(ii). The tenant challenged the order of the Rent Control Court before the Rent Control Appellate Authority, Thiruvananthapuram in RCA 27/2006. On a reappraisal of the evidence on record, the Appellate Authority confirmed the order of eviction granted by the Rent Control Court, but confined the order only to the grounds under Section 11(2)(b) and 11(8) of the Act. It is the said order of the Appellate Authority that is under challenge in the above revision. 6. The counsel for the revision petitioner Mr. Madhu Radhakrishnan addressed us extensively on the various grounds RCR 166/2009 3 raised by the landlord. According to him, there were no proper pleadings in the Rent Control Petition that spelt out the ground under Section 11(8) of the Act. The landlords according to him do not have any consistent case regarding the nature of the business that they wanted to start or continue in the petition schedule premises. Therefore, it is contended that the Rent Control Petition had to fail since there was a total lack of pleadings in the case. 7. Mr. Krishnan Unni, the learned Senior Advocate who appeared for the landlords on the other hand, drew our attention to the pleadings to point out that there were sufficient averments in the Rent Control Petition which made out the ground of eviction under Section 11(8) of the Act. He also drew our attention to paragraph 9 of the Rent Control Petition where the need of the first respondent set out was, for 'expanding his business'. According to the counsel, this averment was also understood in the context of Section 11(8) by the tenant for the reason that in the objections the tenant has pleaded that 'considerable hardship' would be caused to him in the event of the need being allowed. Therefore, there was no occasion for the tenant to be taken by surprise, as contended by the counsel. Mr. Krishnan Unni also referred us to the commission report Ext. C1 which has given a graphic description of the RCR 166/2009 4 premises occupied by the landlord and the nature of the business conducted by the first respondent therein. According to the counsel, the evidence clearly proved the genuineness of the need that was put forth and, therefore, there were no grounds to interfere with the order of eviction passed in the case. 8. We have been taken through the pleadings in the case as well as the relevant portions of the evidence. We have scanned the evidence on record and have also given anxious consideration to the contentions of the rival parties. 9. The ground under Section 11(2)(b) has been concurrently found by both the authorities below. The Rent Control Appellate Authority has reappraised the evidence in the case and has come to the conclusion that the rent that is due and payable by the tenant is Rs.4,500/- per month and that the tenant has committed default of rent from September 2002 onwards. It has also been found that the rent has not been paid in spite of a notice demanding payment of the same. Therefore, the Court below has found that the ground under Section 11(2)(b) was made out and that eviction on the said ground was perfectly justified. Though the tenant has disputed the rate of rent, the counsel for the petitioner has not been able to point out any evidence or material to hold that the RCR 166/2009 5 concurrent findings of the authorities below on the above point was unsustainable. Therefore, we confirm the order of eviction granted by the authorities below on the ground under Section 11(2)(b) of the Act. We also notice that the order of eviction under Section 11 (2) (b) is subject to Section 11(2)(c) of the Act which is available to the tenant to get the said order of eviction vacated, if he so desires. In the circumstances, we feel that it would be enough if we grant the petitioner one month's time from the date of this judgment to get the said order vacated in accordance with the provisions of Section 11(2)(c) of the Act. 10. The main ground of attack against the finding under Section 11(8) of the Act is that there are no sufficient pleadings in the Rent Control Petition spelling out the ground under Section 11 (8). We notice from paragraphs 8 & 9 of the Rent Control Petition that the landlords have pleaded that the room was required for expanding the business of the first respondent. The averments put forward the need as one of bonafide requirement for the own occupation of the first respondent who is one of the landlords. In answer to the above pleading, the tenant has stated in paragraph 10 of his pleadings that “if he is evicted considerable hardship would be caused” to him. It is clear from the above answer that the RCR 166/2009 6 tenant had understood the pleading of the landlord as constituting the necessary averments supporting a ground of eviction under Section 11(8) of the Act. When he was examined as P.W.1, the landlord has spoken to his need. According to him he is conducting a pan shop. He also goes on to say that he is conducting a juice shop but also adds that he does not sell cool drinks. He further expatiates that he has a public telephone in his shop. His deposition is attacked by the counsel for the tenant as being inconsistent and vague. It is contended that the landlord was undecided even as to the nature of the business that was being conducted by him from the premises adjacent to the petition schedule shop room. However, the confusion that is likely to arise from a reading of the deposition of P.W.1 is cleared by Ext. C1 Commission report. The Commissioner has inspected the petition schedule premises and has reported that the first respondent was conducting a number of businesses from the room occupied by him. The Commissioner has found him selling stationary articles, juices, soft drinks, sweets and other items. The Commissioner also found a refrigerator installed in the premises. He has also reported the existence of a public telephone counter in the shop room. The Commission report shows that the first respondent is in fact RCR 166/2009 7 carrying on business in various articles that can be described as a business in stationery goods or sweets. He is at the same time selling juices and also running a pan shop. The Commissioner has also reported that he is crammed for space in the room occupied by him. The evidence clearly supports the need for additional accommodation put forth by the landlord. 11. The Rent Control Court had committed the error of granting an order of eviction both under Section 11(3) and 11(8) of the Act. Since the said order was not sustainable in view of the various decisions on the point, the Appellate Authority has corrected the mistake and has confined the order of eviction to Section 11(8) alone. The Appellate Court has also considered the comparative hardship that may be suffered by the landlord as well as the tenant as required by Section 11(8) of the Act. The finding of the Appellate Court that the comparative hardship that would be caused to the landlords would outweigh the hardship that would be caused to the tenant is perfectly justified in the light of the evidence on record. The counsel for the tenant has not been able to point out any material or evidence to show that the judgment of the Appellate Authority suffers from any illegality, impropriety or irregularity warranting interference with the same in exercise of the RCR 166/2009 8 jurisdiction under Section 20 of the Act. We fully concur with the findings of the Appellate Authority. Therefore, the Rent Control Revision fails and is liable to be dismissed. 12. As a last plea, the counsel for the tenant requested for the grant of a period of at least one year for vacating the tenanted premises. The plea for the grant of time is opposed by the counsel for the landlords. Having considered the various aspects of the case, we feel that time can be granted to the tenant to vacate the premises up to 30.9.2010, subject to conditions. In the result the RCR is ordered as follows:- a) The Rent Control Petition is dismissed. However, the tenant is granted time up to 30.9.2010 to vacate the premises. b) The above direction granting time to vacate shall be subject to the further condition that the tenant files an affidavit before the Rent Control Court or the Execution Court as the case may be, within a period of one month from today, unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlords on or before 30.9.2010. c) The tenant shall further pay occupational charges at the rate of Rs.4,500/- per month from 1.1.2010, regularly and without default till he surrenders vacant possession of the premises to the RCR 166/2009 9 landlords. d) The landlords shall be entitled to execute the order of eviction passed against the tenant in the event of default of any of the above conditions. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: