IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 RCRev..No. 313 of 2008() ------------------------ RCA.79/2007 of ADDL. DISTRICT COURT, VADAKARA RCP.53/2006 of MUNSIFF COURT, VADAKARA .................... PETITIONER/ APPELLANT IN RCA/RESPONDENT IN CROSS OBJECTION/RESPONDENT IN RCP ----------------------------- K. SUGAVATHY, W/O. MANOHARAN, DOOR NO. 30/429, ONTHAM ROAD, VATAKARA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): RESPONDENT IN RCA/CROSS OBJECTOR/ PETITIONER IN RCP ------------------------- THADIPPARAMBATH KUNHIRAMAN, S/O. POKKINAN, CHEMMARATHOOR AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 313 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2009 ORDER Pius.C.Kuriakose, J. A tenant who has suffered an order of eviction on the grounds of additional accommodation ( Section 11(8) ) and cessation of occupation ( Section 11(4)(v) has filed this petition under Section 20 of Act 2 of 1965. In fact order of eviction was passed under Section 11(2) (b) also, but it is conceded before us that the said ground no longer survives since by payment of arrears of rent the order of eviction passed under Section 11(2)(b) is being vacated. 2. The case of the landlord in the context of the ground of cessation of occupation was that the building was being used by the tenant for residential purposes and that the tenant having already acquired another residential premises, has ceased to occupy the building continuously for more than six months without any reasonable cause. The above case was stoutly denied by the tenant who contended that apart from residing in the building, her husband who is a head load worker in the town is occasionally roasting ground nuts so that the RCR.No.313/2008 2 tenant can sell the same in the bus stand and other locations in the town. 3. The case projected by the landlord in the context of ground under Section 11(8) was that the landlord is in occupation of another portion of the larger building of which the petition schedule building is also a part and in that portion he is conducting a hotel by name 'Hotel Highland' and further that the landlord needs possession of the petition schedule building also so that he can expand his hotel business. This case was also stiffly denied by the tenant who contended alternatively that at any rate by getting possession of the petition schedule building, which is very small, the avowed purpose of additional accommodation for expansion of hotel business is not going to be accomplished. The tenant contended that the hardships which will be occasioned to her by the eviction will out weigh the advantages which may enure to the landlord by securing eviction. 4. At trial, the evidence before the Rent Control Court consisted of Exts.A1 to A5, Ext.C1 Commissioner's report , testimonies of PWs 1 and 2, Exts.B1 to B12 and the testimony of RW1. Ext.A1 RCR.No.313/2008 3 was a registration copy of the rent chit executed between the predecessors in interest of the parties. On an evaluation of the evidence, the Rent Control Court found that the landlord's need for additional accommodation is bonafide and also that the advantages which will enure to the landlord by getting eviction will out weigh the hardship which may be occasioned to be tenant. Accordingly, eviction order was passed under Sub Section 8 of Section 11. But relying on Ext.C1 Commissioner's report, which was filed by the Commissioner on the basis of a surprise inspection reporting that during inspection the husband of the tenant was seen roasting ground nuts, the learned Rent Control Court found that the tenant had not ceased to occupy the premises and that the tenant continues to occupy the premises for non residential purposes. On that basis, order of eviction was declined under Clause 5 of Sub Section 4 of Section 11. 5. The tenant preferred appeal to the Rent Control Appellate Authority as R.C.A.No.79/2007 and the landlord filed cross objections to the same. The appeal and the cross objections were considered together by the learned Appellate Authority which under the impugned RCR.No.313/2008 4 judgment has allowed the cross objections and dismissing the appeal preferred by the tenant has now ordered eviction both under ground 11 (8) and 11(4)(v). 6. We have heard the submissions of Sri.P.B.Krishnan, learned counsel for the petitioner and those of Sri.P.A.Harish, learned counsel for the respondent. Our attention was drawn by Sri.Krishnan to the various grounds raised in the memorandum of revision. He would highlight before us Ext.A1 rent chit and submit that the very purpose of the lease as per that admitted rent chit was to enable the tenant to carry on business. According to him, even when the Advocate Commissioner conducted a surprise inspection of the premises without notice, it was found that the tenant's husband was roasting ground nuts. Sri.Krishnan submitted that the Rent Control Appellate Authority has not even found that the statutory eviction ground under Clause 5 of Sub Section 4 of Section 11 i.e. cessation of occupation continuously for more than six months without reasonable cause - exists in this case. The appellate authority according to the learned counsel has only found that the tenant has ceased to reside in RCR.No.313/2008 5 the petition schedule building. According to the learned counsel, even if it is assumed that the tenant is not residing in the petition schedule building, a ground under Section 11(4)(v) will not be established since in this particular case the purpose of the lease was business. The order of the Appellate Authority under Sub Section 8 of Section 11 was assailed even more forcefully by Sri.P.B.Krishnan. He submitted that the preliminary question to be considered is whether the need for additional accommodation is bonafide. Before answering that question, it is necessary that the court examines as to what is the extent of accommodation already available with the landlord and as to whether the said accommodation is insufficient to meet the requirements of the landlord. This aspect of the matter according to the learned counsel is capable of being proved by report of an Advocate Commissioner on the basis of inspection. Ext.C1, learned counsel would argue, will not of any assistance of the court in this context. Learned counsel submitted that it was significant that despite having taken a Commissioner to the building, the landlord did not want the commissioner even to enter into the building under the possession of RCR.No.313/2008 6 the landlord wherein the landlord is presently conducting Hotel Hyland. Learned counsel also highlighted the report of the Commissioner that two rooms are actually vacant. If this is true, the need for additional accommodation will have to be found to be without bonafides. As for the question of the benefit of the proviso to Sub Section 10 of Section 11, Sri.Krishnan submitted that the above question can arise only if it is found that the need for additional accommodation is bonafide. 7. Sri.P.A.Harish would oppose all the submissions of Sri.P.B.Krishnan. He took us through the oral evidence adduced by AW1 and RW1 as well as AW2, the Advocate Commissioner. He also took us to the counter statement filed by the tenant and highlighted that the tenant has not specifically contended that the landlord has already in landlord's possession enough space for accomplishing the avowed need of additional accommodation projected. 8. We have anxiously considered the rival submissions addressed at the Bar. We find much force in all the submissions of Sri.P.B.Krishnan made in the context of the ground for eviction under RCR.No.313/2008 7 clause 5 of Sub Section 4 of Section 11. Ext.A1 rent chit will show that the purpose of the lease was commercial. This means that the tenant is entitled to use the schedule building for commercial and trade purposes. May be it is true that the tenant was as contended by herself using the building mainly for residential purposes and the tenant is not presently using the building for that purposes at all. But in order that a ground for eviction under Section 11(4)(v) is made out, it has to be shown that the tenant has ceased to occupy the premises continuously for more than six months without reasonable cause for the purpose for which the building was let out. Ext.C1 Commissioner's report will show that the tenant's husband was roasting ground nuts in the premises. Description of the petition schedule building will also show that the building is essentially a commercial building and not a residential building. Since it is evident that the tenant has not ceased to occupy the building for the purposes for which the building was let out under Ext.A1, it cannot be said that eviction ground under Section 11(4)(v) is established. The eviction order passed under Section 11(4) (v) is liable to be vacated. We vacate the same. RCR.No.313/2008 8 9. Coming to the ground of eviction under Sub Section 8 of Section 11, it will be noticed immediately that both sides adduced evidence in the context of proviso to Sub Section 10 of Section 11 which qualifies Sub Section 8 of Section 11. The landlord adduced evidence to show that he will gain advantages by securing eviction and the tenant adduced evidence to show that he will sustain hardship by suffering eviction. Going by the contention raised by the tenant, the building was being used despite its commercial nature for residential purposes. It has become evident in the case that the building is no longer being used for residential purposes. As for the purposes of trade, it should be seen that sale of roasted ground nuts if at all is being conducted in the town not by the tenant but by the husband of the tenant perhaps on behalf of the tenant. The activities which is being carried on in the building is only roasting of ground nuts. Of course, Sri.Harish submitted that Ext.A1 prohibits having any fire hearth or fire grate in the premises. We are not prepared to agree with Sri.Harish. Roasting ground nuts by using Kerosene stove will not amount to violation of the above condition in Ext.A1. But it is seen RCR.No.313/2008 9 from the evidence that sale of ground nuts is not the main activity of the husband of the tenant. He is a head load worker in the town and the evidence is to the effect that only when he is without such work that he engages himself in the activity of sale of ground nuts on behalf of his wife. Thus by the order of eviction to be passed under Section 11(8), the tenant is not going to be deprived of the main means of livelihood. It will still be possible for the tenant to pursue the sale of ground nuts- her additional means by making alternate arrangements. But the advantages which will enure to the landlord by securing eviction is that he who is presently conducting Hotel in a building of moderate size will be able to conduct hotel in a bigger way in a larger building. Thus the landlord will certainly gain clear advantages by securing eviction. We therefore have no difficultly at all to confirm the finding of the Rent Control Appellate Authority and the Rent Control Court that the petition under Sub Section (8) of Section 11 is not liable to be rejected on the basis of proviso to Sub Section (10) of Section 11. 10. But as rightly submitted by Sri.P.B.Krishnan, before the authorities examine the question of comparative advantages and RCR.No.313/2008 10 hardships, the more important aspect to be considered is whether the landlord has proved that he needs additional accommodation for personal use. The word 'bonafide' is not used in Sub Section 8 of Section 11, but since Sub Section 8 of Section 11 is qualified by Sub Section 10 of Section 11, it is necessary that the landlord establishes before the Rent Control Court that the need is bonafide. We find force in the submissions of Sri.P.B.Krishnan that in order that it can be found that the need for additional accommodation is bonafide, an enquiry necessarily has to be conducted as to what is the extent of accommodation presently available with the landlord and as to what is the landlord's requirement for additional accommodation. The evidence in this case is totally insufficient to prove the aspect of the extent of accommodation presently available with the landlord. The evidence of the landlord as AW1 is only to the effect that there are 11 tables in Hotel Hyland building. That may not be enough as already stated to prove that the landlord is in need of additional accommodation. This is an aspect which can be of better quality evidence. Significantly even the Advocate Commissioner who RCR.No.313/2008 11 submitted Ext.C1 was not asked to inspect the building in the possession of the landlord so that the court will get a report as to the area of that building. Thus in our opinion, the evidence available in this case so far, falls short of holding correctly that the landlord needs additional accommodation for his personal use. We are therefore inclined to interfere with the finding of the authorities below that the landlord needs additional accommodation for personal use. We set aside the order of the Rent Control Appellate Authority that the landlord needs additional accommodation for personal use and remand the RCA to the Rent Control Appellate Authority. In terms of Section 23, Section 18(3) of Act 2 of 1965 and Rule 16(2) of the Building (Lease and Rent Control) Rules, the Appellate Authority's power to hold enquiry is co-terminus with that of the Rent Control Court itself. Accordingly we direct the Appellate Authority to permit the landlord to apply for issuance of a Commission for local inspection of the building in the possession of the landlord and the petition schedule building so that the said authority will have a satisfactory report as to the extent of the accommodation presently available with the landlord for the RCR.No.313/2008 12 purpose of deciding objectively whether the landlord's case that he needs additional accommodation for the expansion of his Hotel Hyland business is bonafide. The Advocate Commissioner to be appointed by the Appellate Authority should also be directed to permit both sides to submit work memos before him during inspection so that on all relevant matters, evidence will be made available to the Rent Control Appellant Authority. The appellate authority shall permit both sides to file objections if any to the Commissioner's report and if it become absolutely necessary, the Appellate Authority can permit examination of the Commissioner also for the purpose of substantiating the objections filed. The appellate authority will also for the purpose of deciding the issue whether the landlord's claim for additional accommodation is bonafide permit both parties to adduce documentary evidence. The Rent Control Appellate Authority will expedite matters and ensure that enquiry is completed and a revised judgment is passed in the appeal at the earliest and at any rate within four months of receiving a copy of this judgment. 11. It is clarified that the finding entered herein above that the RCR.No.313/2008 13 tenant is not entitled to the protection of the proviso to Sub Section (10) of Section 11 shall not be understood as expression of any opinion by this court regarding the bonafides of the landlord's claim for additional accommodation. Transmit the records forthwith to the Appellate Authority. The parties will enter appearance before the Appellate Authority on 22/06/2009. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.313/2008 14