George, S/o Akkarakaran Vareed v Shaju S/o Brammakulath Thanisserykkaran Joseph and Baiju (R.C.R. Nos. 164 & 194 of 2010), High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 RCRev..No. 164 of 2010 (E) ------------------------------- RCA.82/2004 of THE RENT CONTROL APPELLATE AUTHORITY/ADDL.DISTRICT COURT, IRINJALAKUDA RCP.33/2003 of ADDL.M.C.,IRINJALAKUDA .................... ## PETITIONER/APPELLANT/IST RESPONDENT ----------------------------------------------- GEORGE, S/O.AKKARAKARAN VAREED, THEKKE ANGADI, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR) ## RESPONDENT(S)/RESPONDENTS 1 & 2/PETITIONERS : ------------------------------------------------------------ 1. SHAJU, S/O.BRAMMAKULATH THANISSERYKKARAN JOSEPH, PREMIER PRESS, MAIN ROAD, NADA, IRINJALAKUDA-680 121. 2. BAIJU, DO. ADV. SRI.V.M.KRISHNAKUMAR FOR R1&2 SMT.P.A.ANITHA FOR R1&2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/07/2010, A/W RCR.194/10, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. Nos.164 & 194 of 2010 -----------------------------------------------Dated this the 16[th] day of July, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ Both the landlords as well as the tenant are in revisions being aggrieved by the judgment of the Rent Control Appellate Authority. RCR No.194/10 is the revision filed by the landlords while RCR.164/10 is the revision filed by one of the joint tenants. The other joint tenants are arrayed as respondent Nos.2 to 5 in RCR.194/10. They did not contest the proceedings before the court below. On that reason and also for the reason that all the respondents in RCR No.194/10 together constitute a joint tenancy made up of the R. C. R. Nos.164 & 194 of 2010 -2- legal heirs of the deceased original tenant, we are of the view that there is substantial representation for the joint tenancy and there is no necessity for insisting on service of notice on R2 to R5 in RCR.194/10. 2. The parties will be referred to as landlords and tenants. The landlords filed the Rent Control Petition invoking the grounds of arrears of rent under Section 11(2)(b), bona fide need for own occupation under Section 11(3) and need for additional accommodation for personal use under sub Section 8 of Section 11. The need projected was that the landlords who are presently conducting business in books and stationeries in a portion of a larger building, another portion of R. C. R. Nos.164 & 194 of 2010 -3- which is the petition schedule premises occupied by the tenant for conducting textile business, so that the landlords can conduct their business of books and stationery in a better and convenient manner. The Rent Control Petition contains pleadings to the effect that due to lack of space the landlords are finding it difficult to accommodate their customers conveniently; that their stock in trade are presently dumped in the rooms under their possession and that if the petition schedule room is also obtained it will be possible for them to conduct their business properly and conveniently. These averments as well as the allegations of the landlord in the context of ground of arrears of rent were stiffly R. C. R. Nos.164 & 194 of 2010 -4- disputed by the tenants who contended that there is no bona fides for the need projected by the landlord that they are entitled to the protection of the second proviso to sub Section 3 of Section 11, that the advantages which the landlord may gain by getting eviction will not outweigh the hardship which they may sustain by suffering the eviction, that rent is not in arrears as alleged, that the RCP to the extent it relates to 11(2)(b) is not preceded by a statutory intimation notice etc. At enquiry before the learned Rent Control Court, the evidence consisted of Exts.A1 to A4, B1, C1 to C2 (a) oral evidence of PWs.1 and 2 and RW1. The Rent Control Court on evaluating the evidence would allow the petition on the ground of arrears R. C. R. Nos.164 & 194 of 2010 -5- of rent and bona fide need for own occupation only. That court declined eviction on the ground of additional accommodation under Sub Section 8 of Section 11 on the reason that the advantages which the landlord may gain will not outweigh the hardships which the tenant will sustain. 3. Appeals were preferred by both parties. The learned District Judge under the impugned common judgment dismissed both the appeals. One of the contentions which was alleged before the learned District Judge on behalf of the tenant was that the only provision of law which may apply is sub Section 8 of Section 11 and not sub Section 3 of Section 11. The Appellate Authority under the impugned judgment would conclude R. C. R. Nos.164 & 194 of 2010 -6- that it is sub Section 3 of Section 11 that applies and not sub Section 8 of Section 11. In that view of the matter the Appellate Authority declined the order of eviction under sub Section 8 of Section 11 without examining the correctness of the decision of the Rent Control Court in the context of proviso to sub Section 10 of Section 11 entered by the Rent Control Court. 4. In RCP No.194/10 various grounds are raised by the landlord urging that the authorities below went wrong in declining eviction under Sub Section 8 of Section 11. In RCR No.164/10 preferred by one of the joint tenants it is urged on the basis of various decision including the judgment of this Court in _Abraham Roy v. Philip @_ R. C. R. Nos.164 & 194 of 2010 -7- _Pappachan (2009(2) KLT 462)_ authored by ourselves, that the eviction ground under sub Sections 3 and 8 of Section 11 are mutually exclusive and that in the fact situation which obtains in the present case it is sub Section 8 of Section 11 and not sub Section 3 of Section 11 that can have any application. 5. We have heard the submissions of Sri.K.G.Balasubramanian, the learned counsel for the revision petitioner in RCR.164/10 and Smt.P.A.Anitha, the learned counsel for the revision petitioner in RCR 194/10. The learned counsel addressed arguments on the basis of the various grounds raised in the respective memoranda of revision. We have anxiously R. C. R. Nos.164 & 194 of 2010 -8- considered the submissions addressed at the Bar. We have scanned the impugned judgment of the learned Appellate Authority as well as the order of the Rent Control Court. We have kept in mind the binding judicial precedents governing the issue and particularly our own judgment in _Abraham Roy v. Philip @ Pappachan_ (cited supra). 6. Under the present revisional jurisdiction under Section 20, this Court is not expected ordinarily to make a re-appraisal of the evidence for the purpose of substituting factual conclusions arrived at by the final fact finding authority, the learned Rent control Appellate Authority especially when the same is in accordance with the first fact finding authority, the Rent Control Court. But in R. C. R. Nos.164 & 194 of 2010 -9- this case as there is divergence between the views of the two statutory authorities regarding the maintainability of the application for eviction invoking both Section 11(3) and Section 11(8), we have scanned the pleadings and the evidence also. 7. It is very clear to our mind that in the fact situation which obtains in the present case where the landlord is in occupation of a portion of a larger building for the purpose of conducting business in books and stationery and the landlord has pleaded that there is paucity of space and that on account of such paucity, the landlord is not able to conduct his business properly and conveniently, and is seeking possession of the R. C. R. Nos.164 & 194 of 2010 -10- petition schedule premises another portion of the very same larger building so that the landlord's ongoing business can be conducted properly and conveniently, the apposite eviction ground which is available to the landlord is the ground under sub Section 8 of Section 11. We would unhasitatingly vacate the finding of the Rent Control Appellate Authority that sub Section 8 of Section 11 has no application and that it is sub Section 3 of Section 11 alone applies. The learned Appellate Authority has taken the view that sub Section 8 of Section 11 applies only when the landlord pleads a need to expand the business or pleads specifically that additional accommodation is necessary as a part or for the purpose of expanding the present R. C. R. Nos.164 & 194 of 2010 -11- business. What we find from the pleadings is that the landlords' case is that he is unable to conduct his ongoing business of books and stationery in the premises in his possession conveniently and properly for want of adequate space and that he will be able to conduct his business properly and conveniently if possession of the petition schedule premises which are adjacent is also given to him. According to us, the pleadings in the RCP are more than sufficient for making out a case under sub Section 8 of Section 11. 8. Now the question is whether the need projected in the RCP which as we have already noticed is one for additional accommodation for personal use namely the use of conducting the R. C. R. Nos.164 & 194 of 2010 -12- ongoing business of books and stationery in a proper and convenient manner is a bona fide one. It is trite by decisions of this Court that the standards for establishing bona fides in a case under sub Section 8 of Section 11 are not so stringent as the standards are in a case under sub Section 3 of Section 11. Applying the liberal standards applicable to sub Section 8 of Section 11, we find it very easy to concur with the Rent Control Court which actually held that the need for additional accommodation is bona fide. 9. The question which now arises is whether the proviso to sub Section 10 of Section 11 will apply. Even though Smt.Anitha, the learned counsel for the landlord made very persuasive R. C. R. Nos.164 & 194 of 2010 -13- submissions before us requesting that we decide that issue finally, we are not inclined to do so. We notice that the decision of the Rent Control Court in the context of the proviso to sub Section 10 of Section 11 was in favour of the tenant. The Appellate Authority did not examine the correctness of that decision. We find force in the submissions of Sri.K.G.Balasubramanian that the tenant has a right to have the correctness of that decision examined by the statutory appellate authority with powers to enter findings on facts rather than by this Court sitting in revisional jurisdiction. We are therefore of the view that the issue as to whether the Rent Control Petition is liable to fail by virtue of proviso to sub Section 10 R. C. R. Nos.164 & 194 of 2010 -14- of Section 11 should be decided first by the learned Appellate Authority. We therefore, are inclined to relegate the matter to the Rent Control Appellate Authority. If necessary, the Appellate Authority will permit both parties to adduce further evidence on that issue. Unlike the second proviso to sub Section 3 of Section 11 both sides have burden - the landlord has the burden to prove as to what are the advantages which they gain and the tenant has the burden to prove as to the extent of hardship which he will sustain. 10. As for the eviction order passed under sub Section 11(2)(b), we are not inclined to accept the submission of Sri.K.G.Balasubramanian that the Rent Control Petition is not preceded by a R. C. R. Nos.164 & 194 of 2010 -15- proper intimation notice under the proviso to sub Section 11(2)(b). We confirm the order of eviction passed under Section 11(2)(b) and grant the tenant two month's time from today for getting the order vacated by making requisite deposits under Section 11(2)(c). 11. The result is that the RCRs are allowed. The impugned judgment of the Rent Control Appellate Authority is set aside. It is found that Section 11(3) does not apply to this case and the eviction order passed by the Rent Control Court under Section 11(3) is vacated. RCAs are remanded to the Rent Control Appellate Authority. That authority is directed to permit both sides to adduce evidence on the question as to whether R. C. R. Nos.164 & 194 of 2010 -16- the Rent Control Petition is liable to fail by virtue of proviso to sub Section 10 of Section 11. The Appellate Authority will enter a finding on the above specific issue on the basis of evidence available on record and the evidence that comes to be adduced further. If the decision of the Appellate Authority on that issue comes to be in favour of the landlord eviction order will be passed under Section 11(8). Parties are directed to enter appearance before the Rent Control Appellate Authority on 17[th] August, 2010. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-