IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 RCRev..No. 107 of 2005() ------------------------ RCA.164/2003 of V ADDL. DISTRICT COURT, ERNAKULAM RCP.94/2002 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER/RESPONDENT/RESPONDENT ---------------------------------------------------- V.G.RAPHEL,TERESA INDOOR WORLD, 36/2100, N.H ROAD, KALOOR P.O.,COCHIN - 682 017. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENT(S): RESPONDENT/APPELLANT/PETITIONER ---------------------------------------------- MRS.RASHEEDA MOHAMMED ALI, W/O.T.A. MOHAMMED ALI, LITTLE ORCHARD, B.T.S.ROAD, EDAPPALLY, COCHIN - 24. ADV. SRI.A.K.SRINIVASAN FOR R1 SRI.N.S.MOHAMMED USMAN FOR R1 SRI.A.S.BENOY FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 107 of 2005 ``````````````````````````````````````````````````````` Dated this the 30th day of November, 2009 O R D E R Pius C. Kuriakose, J. The tenant is in revision. The respondent landlady sought for eviction on the ground of bonafide need for own occupation and the grounds of arrears of rent(Section 11(2(b)) and the ground that the tenant is in possession of other buildings reasonably sufficient for the tenant's requirement in the same city, town or village(Section 11(4)(iii)). The revision petitioner was able to avoid an order of eviction on the ground of arrears of rent by the rent control court by discharging the arrears of rent before the RCP was special listed for trial. The rent control court, on appreciating the evidence adduced by the parties, came to the conclusion that the need projected by the respondent under sub- section (3) of Section 11 was not bonafide. However, it was found by the rent control court that the tenant is not entitled to the protection of the second proviso to sub-section (3) of Section 11, since the tenant was unsuccessful in proving either of the RCR.107/05 : 2 : ingredients of that proviso. The respondent landlady preferred an appeal as RCA No.164/2003 to the rent control appellate authority. Eventhough challenge was made in the above RCA against the order of the rent control court declining eviction under sub-section (3) of Section 11 as well as Clause (iii) of sub-section 4 of Section 11, at the time of hearing of the RCA, the landlady practically confined her appeal to the plea for eviction on the ground of bonafide need. The appellate authority would reverse the finding of the rent control court and find that the need projected by the landlady is a bonafide one. The appellate authority also concurred with the conclusion of the rent control court that the tenant is not entitled for the protection of the second proviso to sub-section (3) of Section 11. Accordingly, reversing the decision of the rent control court, order of eviction was passed by the appellate authority under sub-section (3) of Section 11. The appellate authority, however, confirmed the decision of the rent control court, declining eviction under Clause (iii) of sub-section (4) of Section 11. In this revision filed by the tenant under section 20 of Act 2 of 1965, various grounds are raised, assailing the decision of RCR.107/05 : 3 : the appellate authority. 2. We have heard the submissions of Sri.T.Krishnanunni, learned senior counsel for the revision petitioner, and those of Sri.A.K.Srinivasan, learned counsel for the respondent. Sri.Krishnanunni drew our attention to the averments in the RCP, the Advocate Commissioner’s report and also to the findings of the rent control court as well as the appellate authority. The learned senior counsel submitted that the petition schedule building is ground portion of a three storied building belonging to the landlady and that going by the averments in the RCP and also by the various items of evidence relied on by the landlady, the need of the landlady can fall only within sub-section (8) of Section 11 and not under sub-section (3) of Section 11. Our attention was drawn by Sri.Krishnanunni to the proviso to sub-section (10) of Section 11 and he submitted that when the apposite ground for eviction is sub-section (8) of Section 11. It is not the second proviso to sub- section (3) of Section 11 that applies, according to him, it is the proviso to sub-section (10) of Section 11 which applies. Under that proviso, the rent control court and the appellate authority are RCR.107/05 : 4 : expected to outweigh the advantages which the landlady may get by eviction against the hardships which will be sustained by the tenant by suffering eviction. The question of relative advantages and hardships has not been considered at all by the authorities below. Sri.A.K.Srinivasan, learned counsel for the respondent, submitted that it is trite that the standards for proving bonafides required for establishing a bonafide need under Section 11(3) are more rigorous than the standards expected in a case for eviction on the ground of additional accommodation under sub-section (8) of Section 11. The rent control appellate authority, which is the final court on facts under the statutory scheme, has, on a thorough analysis of the pleadings and evidence, come to the conclusion that even applying the rigorous standards of sub-section (3) of Section 11, the need of the landlady is a bonafide one. The need, Sri.A.K.Srinivasan pointed out is to have a showroom for the business of electrical goods. It is in evidence that it will be difficult for the customers to reach the first floor portion. The ground floor portion (the petition schedule building) is absolutely necessary to have a showroom for the business. According to the learned RCR.107/05 : 5 : counsel, the judgment of the appellate authority is not tainted by any illegality, irregularity or impropriety and the same can be approved by this Court under the revisional jurisdiction. If order of eviction is liable to be passed under Section 11(3), it is all the more liable to be passed under sub-section (8) of Section 11. Sri.A.K.Srinivasan also submitted that it was by making deposits at the fag end of the trial court that the revision petitioner was able to avert the order of eviction under Section 11(2)(b). He also submitted that it was only after this Court passed a direction to discharge the arrears of rent that the respondent landlady was able to recover the rent which fell due subsequently. He also submitted that the contract amount Rs.4,300/- presently being paid by the revision petitioner is ridiculously low in view of the commercial importance of the locality. 3. We have considered the rival submissions of the bar. Having regard to the pleadings in the RCP and the evidence including the Advocate Commissioner’s report and oral evidence of PW1, we are of the view that the apposite ground for evicting the revision petitioner will be the ground under sub-section (8) of RCR.107/05 : 6 : Section 11 and not the ground under sub-section (3) of Section 11. Whether it be under sub-section (3) of Section 11 or under sub-section (8) of Section 11 it has to be established by the landlady that the need is a bonafide one. Applying standards necessary for establishing the bonafides of a need under sub- section (8) of Section 11, we are of the view that the bonafides of the need of the landlady for additional accommodation is established to the very hilt in this case. Therefore, notwithstanding the situation that it is the bonafides of the need under Section 11 (3) which was examined by the rent control court and appellate authority, we find that the respondent has a bonafide need for additional accommodation of the petition schedule premises, which is the ground floor of a three storied building belonging to her for the purpose of having a showroom for business in electrical goods, which is already started by her in the first floor. But then, as rightly pointed out by Mr.Krishnanunni when the need is for additional accommodation under Section 11(8), it is the proviso to sub-section (10) that operates and not the second proviso to sub- section (3) of Section 11. In terms of that proviso, even if it is RCR.107/05 : 7 : found that the need for additional accommodation is bonafide, if the rent control court is satisfied that the hardship, which may be caused to the tenant by granting the order of eviction will outweigh the advantages of landlord on getting eviction, that court shall reject the application. We notice that neither of the authorities below have examined the operation of the proviso to sub-section (10) of Section 11 in this case. Unlike the question of tenant's eligibility for protection of second proviso to sub-section (3) of Section 11, while deciding the operation of the proviso to sub- section (10) of Section 11, the burden of proof will be on both sides ie, it will be for the tenant to adduce evidence and prove as to what is the hardship to be sustained by him by suffering an order of eviction and it is for the landlady to adduce evidence and prove as to what are the advantages getting by an order of eviction. 4. We are of the view that since the operation of the proviso to sub-section (10) of Section 11 has not been examined by either of the parties, the matter should be sent back to the rent control court to consider the operation of the proviso to sub- RCR.107/05 : 8 : section (10) of Section 11 in this case. At the same time, we notice that the petition schedule building is situated by the side of the highway in close proximity to the private bus stand at Kaloor. We are in agreement with Sri.Srinivasan that the rent of Rs.4,300/- presently paid by the revision petitioner is ridiculously low having regard to the importance and commercial potentialities of the area where the building is situated. We are, therefore, inclined to re-fix the rent payable by the revision petitioner tentatively with effect from 01-01-2010 at Rs.10,000/- per month. We make it clear that this re-fixation is subject to regular fixation of fair rent at the instance of either of the parties. The upshot of the above discussion is as follows: The order of the rent control court and the judgment of the appellate authority are set aside. The RCP is remanded to the rent control court. That court is directed to afford an opportunity to both sides to adduce evidence in the context of proviso to sub- section (10) of Section 11, to enter findings under that proviso and to take a decision as to whether the RCP is not liable to be allowed in view of the finding entered by us that the need for RCR.107/05 : 9 : additional accommodation is a bonafide one. The rent control court is directed to give top priority to the RCP by special listing the same in the earliest available special list and by trying the same in a day-today manner. Fresh decision shall be taken by the rent control court at any rate within two months of parties entering appearance pursuant to this order. The parties are directed to enter appearance before the rent control court, Ernakulam on 14- 12-2009. Transmit the records forthwith to the rent control court. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks