IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & HE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 RCRev..No.3 of 2006 (A) ----------------------------- RCA.5/2005 of RENT CONTROL APPELLATE AUTHORITY, N.PARAVUR RCP.25/2003 of RENT CONTROL COURT,ALUVA .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------ ALIYAR, AGED 49, S/O.MUHAMMED, KUMBAYIKKUDIYIL HOUSE, ERUMATHALA, ALUVA. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S)/APPELLANT/RESPONDENT: ---------------------------------------------------- K.S.ABDU, S/O.SAIDUKUTTY, KUNNUMPURATH HOUSE, THOTTUMUGHAM KARA, ALUVA VILLAGE, (K.S.ABDU, CENTRAL SHOE LAND, SUB JAIL ROAD, ALUVA). THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. ----------------------------------------------- RCR. No. 3 of 2006 ----------------------------------------------- Dated this the 20th day of July, 2009 O R D E R Pius C. Kuriakose, J. The landlord is in revision against the judgment of the Rent Control Appellate Authority dismissing his application for eviction on the ground under subsection (8) of section 11 (additional accommodation for personal use). The case of the landlord is that the petition schedule building is portion of a larger building and that in another portion of the building he is conducting agency business of Gandhi Smaraka Grama Seva Kendram, a society affiliated to the Khadi and Village Industries Board and recognised by the Khadi and Village Industries Commission, Government of India and that due to paucity of space in the premises at his disposal, Ext.A2 letter was sent to him by Gandhi Smaraka Grama Seva Kendram directing him to find out enough space for displaying and selling the products of Gandhi RCR. N0. 3/06 -2- Smaraka Grama Seva Kendram, lest the agency given to him should be cancelled. The landlord alleged in the rent control petition that he bona fide needs the petition schedule building which is a room adjacent to the room in his possession, so that his requirement of additional accommodation for displaying and selling of the products of Gandhi Smaraka Grama Seva Kendram can be accomplished. 2. The respondent tenant through his statement of objections disputed the bonafieds of the need and the claim. Inter alia it was contended that the landlord petitioner does not conduct any business of his own in the adjacent room and that it is the Gandhi Smaraka Grama Seva Kendram itself who are directly conducting business in the adjacent room. Alternatively, it was contended that the tenant is entitled to the protection of the proviso to subsection (10) of section 11 and that the hardship which will be occasioned to the tenant upon being evicted will outweigh the advantages RCR. N0. 3/06 -3- which the landlord may gain by obtaining eviction. 3. The RCP was enquired into by the Rent Control Court and the evidence before that court consisted of Exts.A1 to A4, C1 and C1(a) and the oral testimonies of PWs. 1 to 3. The solitary evidence on the side of the tenant was tenant's own oral evidence as RW-1. Ext.A1 marked in evidence was photostat copy of the agreement between the landlord petitioner and the Ghandhi Smaraka Grama Seva Kendram. On its reverse pages endorsement in renewal of the arrangement under Ext.A1 upon expiry of the original period is seen made. Ext.A2 was the original of the letter received by the landlord petitioner from Gandhi Smaraka Grama Seva Kendram. A3 was copy of the lawyer notice while A4 was the original of the reply notice sent at the instance of the respondent tenant. Ext. C1 was the report submitted by Advocate Commissioner on the basis of a local inspection and C1(a) was rough sketch. PW-1 was landlord himself. PW-2 was the Secretary of the Gandhi Smaraka RCR. N0. 3/06 -4- Grama Seva Kendram and a signatory to Ext.A1. PW-3 was the Advocate Commissioner who proved Exts.C1 and C1(a). 4. The Rent Control Court on an evaluation of the evidence concluded that the landlord's need for additional accommodation was a bona fide one. It was also found by that Court that the tenant had failed in showing that any hardship will be sustained by him by the order of eviction to be passed against him. Accordingly the RCP was allowed under subsection (8) of section 11. The Rent Control Appellate Authority considering the appeal preferred by the respondent (tenant) however, would observe that Exts.A1 and A2 were the only items of documentary evidence adduced by the landlord to prove his case that he is carrying on business in the premises having door No.158/12 in his capacity as an agent of Gandhi Smaraka Grama Seva Kendram. That court found that the landlord had not produced any other documentary evidence such as the trade licence issued by the local authority, the sales-tax RCR. N0. 3/06 -5- registration, the other statutory permissions requisite for conduct of business and the accounts maintained by him with regard to the business allegedly carried on by him in premises having door No. 158/12. The learned Appellate Authority actually drew adverse inference against the landlord on account of the non-production of those items of evidence and would accept the version of the tenant that it is not the landlord who is carrying on business in the adjacent rooms, but it is the Gandhi Smaraka Grama Seva Kendram itself who is actually carrying on business. In that view of the matter the Appellate Authority would set aside the decision of the Rent Control Court and dismiss the RCP. The Appellate Authority did not consider the question of the tenant's eligibility for the protection of the first proviso to subsection (10) of section 11, i.e., did not evaluate the advantages and hardships in view of its decision regarding the bonafides of the projected need for additional accommodation. RCR. N0. 3/06 -6- 5. Even though the respondent was served with notice of this RCR, he has not entered appearance before this court. 6. We have heard the submissions of Sri. V.Rajendran Perumbavoor, learned counsel for the petitioner. Lower court records are available and we have, in view of the divergent nature of the findings entered by the authorities below, made a reappraisal of the entire evidence. Sri. V.Rajendran would assail the decision of the Rent Control Appellate Authority on the various grounds raised in the memorandum of appeal and we have considered all the submissions addressed by him in the light of the evidence on record. We have carefully gone through the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority. 7. We are in agreement with Mr.V.Rajendran who argued that the Appellate Authority was not justified in insisting that the landlord should have produced documents RCR. N0. 3/06 -7- such as trade licence issued by the local authority, sales-tax registration certificate issued by the Sales-tax Authority and the accounts pertaining to the business carried on by the landlord. It is well known that the Law of Evidence which is codified by the Indian Evidence Act, does not insist on any particular number of documents or examination of any particular number of witnesses for proving a relevant fact. In the instant case the fact in issue was whether it is the revision petitioner landlord who is carrying on business as the agent of the Gandhi Smaraka Grama Seva Kendram or whether it is the Gandhi Smaraka Grama Seva Kendram itself which is carrying on business engaging the revision petitioner as its Manager. Exts. A1 and A2, according to us, establish to the very hilt that the revision petitioner carries on business in premises adjacent to the petition schedule building as the agent of the Gandhi Smaraka Grama Seva Kendram. The Advocate Commissioner's report Ext. C1 also, which is properly proved by PW-3 the RCR. N0. 3/06 -8- Commissioner, gives strong support to the version of the landlord that he is carrying on business in premises having door No. 158/12 on the strength of Ext.A1 as agent of Gandhi Smaraka Grama Seva Kendram. We therefore reverse the finding of the Rent Control Appellate Authority regarding the identity of the person who is conducting business in door No. 158/12 and also regarding the nature of the relationship between the Gandhi Smaraka Grama Seva Kendram and the revision petitioner landlord and find that it is the revision petitioner landlord himself who is carrying on business in the adjacent room having door No. 158/12. We find that the Appellate Authority interfered with the finding of the Rent Control Court regarding the bonafides of the landlord's need for additional accommodation only in the light of its finding regarding identity of the person actually carrying on business in room No. 158/12. We restore the finding of the Rent Control Court regarding the identity of the person who is carrying on RCR. N0. 3/06 -9- business in room No. 158/12 and the result of such restoration will be that the finding of the Rent Control Court regarding the bonafides of the need for additional accommodation projected by the landlord will stand restored. 8. As already indicated, merely because the authorities under the statute have found that the need for additional accommodation is bona fide it is not necessary that an eviction order under subsection (8) of section 11 should follow. Subsection (8) of section 11 is qualified by subsection (10) of section 11 with its proviso providing that if the advantages to be gained by the landlord by the eviction will outweigh the hardship to be sustained by the tenant the RCP will have to be dismissed. The Rent Control Court has already found that the advantages to be gained by the landlord by getting eviction will outweigh the hardship to be sustained by the tenant. But as an appellate authority under section 18 the District Judge was expected RCR. N0. 3/06 -10- to consider the question of eligibility of the tenant for the protection of the proviso to subsection (10) of section 11. It is seen that the appellate authority has not considered the tenant's eligibility for protection under subsection (10) of section 11 at all. We feel that the appellate authority should consider that aspect of the matter. The above discussions lead this RCR to the following result: (1) The finding of the Rent Control Appellate Authority that the need projected by the landlord under subsection (8) of section 11 for additional accommodation for personal use is not bona fide is set aside and it is found that the need of the landlord projected in the RCP under subsection (8) of section 11 for possession of the petition schedule building for additional accommodation for his personal use, is a bona fide one. (2) The finding of the Rent Control Court that the tenant is not entitled for the protection of the proviso to subsection (10) of section 11 is also set aside and the RCR. N0. 3/06 -11- matter is remanded to the Rent Control Appellate Authority which is directed to decide the question whether the tenant is entitled for the protection of the proviso to subsection (10) of section 11 in the light of the evidence already available on record. A fresh decision on that issue will be taken by the Rent Control Appellate Authority on the basis of the evidence already on record. Needful in compliance with the above directions will be done by the Appellate Authority at its earliest and at any rate, within two months of receiving copy of this order. RCR is allowed as above without any order as to cost. (PIUS C.KURIAKOSE, JUDGE) (P.Q. BARKATH ALI, JUDGE) ksv/- RCR. N0. 3/06 -12-