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 9TH MARCH 2011 / 18TH PHALGUNA 1932 RCRev..No. 99 of 2011() ----------------------- (RCA NO.32/2008 OF THE RENT CONTROL APPELLATE AUTHORITY KOLLAM RCP NO.3/1998 ON THE FILE OF THE RENT CONTRO COURT, KOLLAM) REVISION PETITIONERS (S): APPELLANTS/RESPONDENTS 2-5 ---------------------------------------------- 1. NOORJAHAN, THOTTUMKARAPUTHEN VEEDU, NISHAD MANZIL, ARUNOOTTIMANGALAM CHERRY, MANGAD VILLAGE. 2. NISHAD, THOTTUMKARAPUTHEN VEEDU, NISHAD MANZIL, ARUNOOTTIMANGALAM CHERRY, MANGAD VILLAGE. 3. FATHIMA, THOTTUMKARAPUTHEN VEEDU, NISHAD MANZIL, ARUNOOTTIMANGALAM CHERRY, MANGAD VILLAGE. 4. SUBAIDA BEEVI, THOTTUMKARAPUTHEN VEEDU, NISHAD MANZIL, ARUNOOTTIMANGALAM CHERRY, MANGAD VILLAGE. BY ADV. SRI.SAJU.S.A RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ AYYAPPAN PILLAI, S/O.NADARAJA PILLAI, MONEY BHAVANAM, THRIKKOVILVATTOM VILLAGE, VETTILATHAZHAM CHERRY, PIN-691011. BY ADV. SRI.K.SUBASHCHANDRA BOSE (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 99 OF 2011 ------------------------ Dated this the 9th day of March, 2011 O R D E R Balakrishnan, J. The tenants are the revision petitioners. The eviction petition was filed under Sections 11(3) and 11(8) of the Act 2 of 1965 and the same was dismissed by the Rent Control Court. The landlord took up the matter in appeal. The learned Appellate Authority remanded the matter for fresh consideration to the Rent Control Court. The Rent Control Petition was amended by the landlord confining his claim under Section 11 (8) of the Act. After considering the evidence, the rent control petition was allowed ordering eviction under Section 11 (8) of the Act. It was challenged by the tenants in appeal. The learned Appellate Authority after reappreciating the entire evidence, concurred with the order of eviction passed by the Rent Control Court. 2. Sri. Jamsheed Hafiz, learned counsel appearing for the revision petitioners argued in extenso on all the grounds stated in the revision petition. The main ground that has been urged by RCR.No.99/2011 2 the learned counsel for the revision petitioners is that adjacent to the petition schedule building, the landlord is having other rooms which are lying vacant and that the claim under Section 11(8) has been projected by the landlord only to circumvent the first proviso to section 11 (3) of the Act. The learned counsel has drawn our attention to the amended portion of the Rent Control Petition and submitted that landlord is having other rooms in his possession. 3. Sri.K.Subash Chandra Bose, learned counsel appearing for the landlord submits that since the claim is made under Section 11(8) of the Act, even if it is assumed that the landlord is having another room that will not disentitle the landlord from claiming eviction under section 11(8). There is no dispute regarding the fact that the landlord is conducting wholesale business in plastic and fancy items in the first floor portion of the larger building of which the petition schedule building is a portion lying in the ground floor. According to the landlord, he wanted to expand the business making use of the ground floor also and in the ground floor he wants to conduct retail business in the very same fancy and plastic items. Since the petition RCR.No.99/2011 3 schedule building is a portion of the very same larger building and since other portion is occupied by the landlord, it cannot be contended that the petition under Section 11(8) is unsustainable. 4. It is also argued by the learned counsel for the revision petitioner that at preset the landlord is conducting wholesale business and the claim in the rent control petition is for conducting retail business. Since the retail business is different and distinct from wholesale business, it cannot be said that the claim for additional accommodation is for the very same purpose, so submits the learned counsel. The evidence on record would show that the wholesale business is conducted in fancy and plastic items and those items are intended to be sold in retail in the portion of the petition schedule building. Therefore, it cannot be said that the need for additional accommodation is ill founded. Therefore, we find no illegality or irregularity in the finding so entered by the courts below. 5. The other issue arises for consideration before us is whether the advantages, which the landlord is likely to gain by getting the eviction, will outweigh the hardship that may be caused to the tenants. The evidence will show that there are RCR.No.99/2011 4 other buildings available in the locality for enabling the tenants to shift their business. There is no satisfactory evidence to show that the hardship that may be caused to the tenants will outweigh the advantages to be gained by the landlord. The findings entered by the courts below are founded on legal evidence. As such, we do not find any illegality irregularity or impropriety in the order of eviction passed under Section 11(8). 6. The learned counsel for the revision petitioners submits that fairly long period of time may be granted to the tenants to surrender the petition schedule building. The learned counsel for the landlord opposed the above request pointing out that the rent control petition was filed in the year 1998 and that the tenants have enjoyed more than 13 years by this time. However, considering all the aspects, we find that the tenants can be granted time till 31/12/2011 to vacate the petition schedule building. 7. In the result, the revision petition is dismissed. The revision petitioners are granted time till 31/12/2011 to vacate the petition schedule building on condition that they shall file affidavits within three weeks from today undertaking that they RCR.No.99/2011 5 will surrender peaceful possession of the petition schedule building to the landlord on or before 31/12/2011 and undertaking further through the same affidavit that arrears of rent if any due as on date will be paid within one month from today and that occupation charges at the current rent rate will be paid as and when the same falls due. We clarify that the tenants will get benefit of time granted as above, only if affidavit as directed above is filed and the undertakings therein are honoured. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk