District Unit of K.U.W.J. (Press Club) and The President, District Unit of K.U.W.J. (Press Club), Press Club Building, Alappuzha v Sivaprasad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935** **RCRev..No. 452 of 2011 (A)** **-------------------------------------[R.C.A. NO.47/2008 OF THE ADDL. RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA, R.C.P.NO.6/2006 OF THE RENT CONTROL COURT, ALAPPUZHA]** **...............** ## **REVISION PETITIONERS/RESPONDENTS/PETITIONERS:** **--------------------------------------------------------------------------------** **1. DISTRICT UNIT OF K.U.W.J, (PRESS CLUB), PRESS CLUB BUILDING, ALAPPUZHA, REPRESENTED BY ITS SECRETARY.** **2. THE PRESIDENT,** - **DISTRICT UNIT OF K.U.W.J(PRESS CLUB), PRESS CLUB BUILDING, ALAPPUZHA.** **BY ADV. SRI.R.AZAD BABU.** ## **RESPONDENT/APPELLANT/RESPONDENT:** **--------------------------------------------------------------** **SIVAPRASAD, S/O.VISWAPPAN, STAIR CASE PORTION OF THE PRESS CLUB BUILDINGS, ALAPPUZHA.P.O., OPP.DISTRICT COURT, ALAPPUZHA- 688 001.** **BY ADVS. SMT.C.G.BINDU, SMT.C.G.AJITHA.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.452/2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22[nd] day of July, 2013** ## **O R D E R** ## **Ramachandran Nair, J.** This revision petition is filed by the petitioners, who are respectively an association of working journalists represented by its Secretary and its President. The first petitioner owns the Press Club building at Alappuzha which is a three storeyed building. The petition schedule room is a portion in the ground floor adjoining the staircase. It was let out on 28/11/1995 on an initial rent of `225/-. Presently, the tenant is paying `1,000/- per month. Eviction was sought under Sections 11(2)(b) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (for short, the 'Act'). After considering the evidence in the matter, the Rent Control Court allowed the petition and the Appellate Authority by Judgment dated 20/10/2010 dismissed the appeal filed by the tenant. In the revision petition filed as R.C.R.No.393/2010, this Court concurred with the findings of the Appellate Authority regarding the bona fides for additional accommodation of the ## **`R.C.R.No.452/2011`** ## **-:2:-** landlord but remanded the matter to the Appellate Authority to enter specific findings on the question whether the hardship which may be caused to the tenant will outweigh the advantages which the landlord may gain by getting the order of eviction. 2. After remand, PW1 and CPW1 were again examined and three witnesses were also examined on the side of the respondent/tenant as CPWs 3 to 5. 3. The learned counsel for the petitioners Shri R.Azad Babu submitted that an absolutely wrong approach was made by the Rent Control Appellate Authority while considering the matter in terms of the remand order. In fact, going by the order passed by the court in para.13, again a discussion has been made with regard to the sufficiency of the room for the purpose of the landlord. As rightly pointed out by the learned counsel for the petitioners, such a finding could not have been rendered in the light of the fact that concurrent findings rendered in the earlier ## **`R.C.R.No.452/2011`** ## **-:3:-** proceedings have been affirmed by this Court in R.C.R.No.393/2010. A reading of the order passed by this Court in the said revision will show that, in para.5, this Court has clearly observed that the finding as regards the need for additional accommodation made by the landlord is bona fide and does not warrant any interference. This was restated in para.6 of the order and the matter was remanded to the Rent Control Appellate Authority to enter specific findings on the question whether the hardship which the tenant may sustain will outweigh the advantages which the landlord may gain by getting the order of eviction. 4. Regarding the said issue, the finding is available in para.15 of the order. Therein, the Appellate Authority has observed that the case of the landlord that the tenant is employed elsewhere is also not proved by any evidence and therefore, it can be presumed that the main source of the income of the tenant is from the telephone booth and photostat business ## **`R.C.R.No.452/2011`** ## **-:4:-** carried on there. CPW2 and CPW3 have deposed that no vacant rooms are available in their buildings. 5. Our attention was drawn to the oral evidence on the part of the tenant. Learned counsel for the landlord submitted that the tenant has clearly admitted that, on a daily basis, Nos.1500 to 2000 photocopies are being taken and he is getting 40 paise per page. It is also submitted that the tenant has admitted that there is a counting machine to the photostat machine where all details regarding the number of pages which are taken are available. The learned counsel for the petitioners submitted that no effort was made by the tenant to inform the court about the income that is being derived from the business, whether the family has any other source of income as well as the question whether the tenant is mainly depending upon the income from the business in the petition schedule room. It is submitted that without any of these materials being made available before the court, the Appellate Authority was not right in presuming that the ## **`R.C.R.No.452/2011`** ## **-:5:-** business that was being run in the petition schedule room alone is the main source of income. 6. The learned counsel for the respondents Smt.Bindu C.G. submitted that the landlord has been trying to get the tenant evicted for a long time from now, they have not been able to prove before the court that the tenant is having any other source of income, they have also not been able to prove that in the locality, other buildings are available for the accommodation of the tenant in the event of eviction and, lastly, on the question of the advantage the landlord may get, compared to the hardship which the tenant may sustain, the issue was rightly found by the Appellate Authority in favour of the tenant. 7. Shri Azad Babu invited our attention to the decision reported as Laila A.Khader v. Scaria [2012 (1) KLT 974] of a Division Bench of this Court. How the matter will have to be considered under Section 11(10) of the Act is explained in paras.12 and 17 of the Judgment, as hereunder: ## **`R.C.R.No.452/2011`** ## **-:6:-** "The burden is on the tenant to establish the hardship that may be caused to him if he is evicted from the tenanted premises. The landlord has to discharge his burden to show the advantage that he would derive if he gets the premises vacated. The Rent Control Court has to balance both and determine whether the hardship which may be caused to the tenant would outweigh the advantage derived by the landlord. There is nothing in that subsection which restrict the import of the expression hardship. The tenant is occupying the building for carrying on business for his livelihood. Therefore any kind of adverse circumstance under which the tenant will be deprived of his livelihood, if eviction is ordered, is significant and relevant to constitute hardship that may be caused to the tenant. We make it clear that any kind of adverse circumstance having fundamental and negative impact over the livelihood, if eviction is ordered, can be taken into consideration. So non-availability of other buildings to shift his business alone is not sufficient to discharge the burden under S.11(10) to get protection." ## **`R.C.R.No.452/2011`** ## **-:7:-** The crucial requirement to be established by the tenant has been stressed by the Court therein by stating that "therefore, any kind of adverse circumstance under which the tenant will be deprived of his livelihood, if eviction is ordered, is significant and relevant to constitute hardship that may be caused to the tenant. We make it clear that any kind of adverse circumstance having fundamental and negative impact over the livelihood, if eviction is ordered, can be taken into consideration”. It was further held therein that “non-availability of other buildings to shift his business alone is not sufficient to discharge the burden under S.11(10) to get protection”. 8. The said decision therefore place emphasis on the factors to be proved in evidence that if the building is vacated it will deprive the tenant of his livelihood. Therefore, evidence should be there as to the main source of income, the income that is derived from the business conducted in the building, needs of the family and other factors without ## **`R.C.R.No.452/2011`** ## **-:8:-** which no presumption can be drawn, as now done by the Appellate Authority. 9. The learned counsel for the tenant relied upon an earlier Judgment of a Division Bench of this Court in Arjunan v. Eranu [1991 (2) KLT 279] wherein the Division Bench followed the dictum laid down by the Apex Court in P.B.Desai v. C.M.Patel [AIR 1974 S.C 1059]. It was observed by the Division Bench that both sides should lead evidence to substantiate facts stated in the proviso to Section 11(10) of the Act. But, herein, with regard to the main source of income or whether the income from the business herein is the only source of income for the tenant, the basic details are not before the court. It is submitted by the learned counsel for the respondent that in the cross-examination no specific questions were asked about the same. But as rightly pointed out by the learned counsel for the petitioners, Shri Azad Babu, in the chief examination also those details are not there. These are matters which are ## **`R.C.R.No.452/2011`** ## **-:9:-** in the exclusive knowledge of the tenant, which the tenant alone will have to provide to the court. 10. Therefore, we are of the view that the presumption drawn by the court that in the absence of any evidence regarding other occupation of the tenant and on the allegation of the landlord that the tenant is working at Ernakulam, it can be presumed that the only source of income of the tenant is the income from the business in the petition schedule building, is not a correct approach. Accordingly, we allow the rent control revision and set aside the revised Judgment passed by the Appellate Authority. 11. At this stage, the learned counsel for the respondent/tenant sought for one more opportunity to adduce evidence before the Appellate Authority itself for proving the basic factors regarding the main source of income, and income that is derived from the business conducted in the petition schedule building. Learned counsel Shri Azad Babu opposed the above prayer by pointing out that an opportunity need not be given for ## **`R.C.R.No.452/2011`** ## **-:10:-** proving the same to fill up the lacunae. Since it is incumbent on the landlord and the tenant to prove to the hilt, the basic details which will help the court to assess the ingredients of the proviso to Section 11(10) of the Act so as to arrive at a proper finding, we are of the view that one more opportunity can be granted to the parties to adduce evidence on these aspects. The matter is again remanded to the Appellate Authority for fresh evidence and both sides will be given opportunity to adduce evidence. We will also direct that the arrears of rent, if any, as on today will be paid to the landlord by the tenant within three weeks from today and the appeal will be disposed of within three months from the date of receipt of a copy of this Order. The parties will appear on 29/08/2013. No costs. Sd/- ## **(T.R. Ramachandran Nair, Judge.)** Sd/- ## **(A.V. Ramakrishna Pillai, Judge.)** ms \\True copy// P.A. to Judge