Kottayam Auto Stores (represented by Partner Praveen G. Prince) v. M/S Ideal Automobiles (represented by its Managing Partner Thampi Thomas) and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 RCRev..No. 349 of 2015 () R.C.A.NO.48/2011 OF THE RENT CONTROL APPELLATE AUTHORITY, KOTTAYA RCP NO.18/2009 OF THE RENT CONTROL COURT, KOTTAYAM REVISION PETITIONER(S)/APPELLANTS 1 TO 4/COUNTER PETITONERS 1 TO 4: ----------------------------------------------------------------------- 1. KOTTAYAM AUTO STORES REPRESENTED BY PARTNER, PRAVEEN G.PRINCE PULIMOODU JUNCTION, THIRUNAKKARA, KOTTAYAM. 2. PRAVEEEN.G PRINCE PARTNER, KOTTAYAM AUTO STORES, PULIMOODU JUNCTION THIRUNAKKARA, KOTTAYAM. 3. NAVEEN.G.PRINCE PARTNER, KOTTAYAM AUTO STORES, PULIMOODU JUNCTION THIRUNAKKARA, KOTTAYAM. 4. MARY PRINCE, PARTNER, KOTTAYAM AUTO STORES, PULIMOODU JUNCTION THIRUNAKKARA, KOTTAYAM. BY ADVS.SRI.V.P.MOHAMMED NIYAZ SRI.M.P.MUHAMMAD FAZIL SRI.K.RONALD JOSE SMT.AUGNES LOVELY FRANCIS RESPONDENT(S)/RESPONDENTS & 5TH APPELLANT/PETITIONERS AND COUTER PETITONER NO.7: ----------------------------------------------------------------------- 1. M/S. IDEAL AUTOMOBILES REPRESENTED BY ITS MANAGING PARTNER, THAMPI THOMAS S/O.THOMAS, RESIDING AT KUNNASSERIL HOUSE PUTHANANGADI, KOTTAYAM. 2. NAVEEN THAMPI, S/O.THAMPI THOMAS, RESIDING AT KUNNASSERIL HOUSE PUTHANANGADI, KOTTAYAM. 3. GEORGE S/O.LATE SAJAN GEORGE, KAITHATHARA HOUSE, CHALUKUNNU KOTTAYAM, NOW RESIDING AT C/O.P.E.KOSHY, NO.3049 80 FEET ROAD, INDIRA NAGAR, BANGALORE 560 008. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. Ravindran &** ## **K. Ramakrishnan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.349 of 2015** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] January, 2016** ## **O R D E R** ## **K. Ramakrishnan, J.** The tenants in R.C.P.No.18 of 2009 on the file of the Additional Rent Control Court, Kottayam are the revision petitioners herein. The petition for eviction was filed by the landlords/respondents herein seeking eviction of the revision petitioners from the petition schedule building under sections 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as “the Act” for short. The case of the landlords in the petition for eviction was that the landlords are having a room in the same building wherein they are conducting business in automobile spare parts. The petition schedule building was let out to the revision petitioners herein on a monthly rent of Rs.100/- and they are conducting business in automobile spare parts. The landlords firm is in bonafide need of the petition schedule building as additional accommodation for the purpose of expansion of their business. They are having the adjoining rooms in the petition schedule building. They are conducting business in automobile spare parts and accessories there. They have got an area of only 300 Sq. Feet approximately. It is totally insufficient to conduct the business. The petition schedule building is having sufficient road RCR 349/2015 2 frontage. It is situated in the heart of Kottayam town. The scope of development of the business is on the higher side. In order to improve the business prospects, they require additional accommodation. They are experiencing difficulties in storing the articles and displaying the same as well. The tenants are having other buildings in their possession and other buildings are also available in the locality for shifting their business. They will not suffer any difficulty if an order of eviction is passed. So, they prayed for allowing the rent control petition. 2. The tenants entered appearance and filed counter statement denying the allegation of bonafide need and the necessity for additional accommodation. They have further contended that the landlords are in possession of approximately 200 Sq. Ft. area and they are in possession of the upstair rooms having an area of 323 sq. ft. So, there is no necessity for them to get the petition schedule building. If they want to expand the business they can use the said premises for their purpose. Further, they have acquired goodwill in conducting business and if the business has to be shifted, they will be put to great hardship. So, they prayed for dismissal of the petition. 3. P.Ws.1 and 2 were examined and Exts.A1 to A4 were marked on the side of the landlords and R.W.1 was examined on the side of RCR 349/2015 3 the tenants. Exts.C1 and C1(a) were also marked. After considering the evidence on record, the rent control court found that the bonafide need for additional accommodation put forward by the landlords is genuine and the advantage of granting eviction will not outweigh the advantage acquired by the landlords by getting possession of the building and ordered eviction under section 11(8) of the Act holding that section 11(3) of the Act is not applicable in the facts of the case. The tenants filed R.C.A.No.48 of 2011 before the Rent Control Appellate Authority, Kottayam. The appellate authority by judgment dated 17.7.2015 dismissed the appeal. Aggrieved by the same, the present revision petition has been filed by the revision petitioners/tenants before the rent control court. 4. Heard Shri V.P. Mohammed Niyas, learned counsel appearing for the revision petitioners. 5. Learned counsel for the revision petitioners submitted that the courts below have not considered the question of possession of sufficient area with the landlords and there is no necessity for getting additional accommodation as they can do their business with the available area in their possession. 6. We have gone through the reasonings given in the order and the judgment of the courts below. The additional accommodation RCR 349/2015 4 sought for is for the purpose of expansion of the business conducted by the landlords in a room which is part of the entire building in which the petition schedule building is also situated. It is also in a way admitted that both the landlords and the tenants are doing business in the same field. P.W.1 was examined to prove their case. He had categorically stated that the area in their possession is not sufficient for their purpose. The contention raised by the tenants that the need is for the partnership and the building belongs to one of the partners and as such, they are not entitled to get eviction, has been negatived in view of the decision reported in **Rajkumar v. Abdul Rahuman** (1987 (2) KLT 3) and **George v. Abdul Rahimankutty** (2008 (4) KLT 1016) and the courts below had accepted those propositions of law and found that the said contention is not maintainable. 7. Further, it is settled law that the rigour required to prove the bonafide need under section 11(3) of the Act is not extended to the need of additional accommodation claimed under section 11(8) of the Act. This was so held in the decision reported in **Lakshmana Naikan v. Gopalakrishna Pillai** (1981 KLT 167). Further, the evidence of P.W.2 coupled with the Commissioner's report and sketch, Exts.C1 and C1(a) will go to show that the area in the possession of the landlords is not sufficient and they are finding it difficult to conduct the business. RCR 349/2015 5 It was in a way admitted by R.W.1 also that the petitioners are having good business and if additional accommodation is provided, they can expand the business in a profitable manner as well. 8. Even assuming that even with the space available with the possession of the landlord where he is conducting the business, the landlord can do his business with difficulties, is not a ground to deny eviction under section 11(8) of the Act if it is proved that he bonafide wants additional accommodation for expansion of his business, as it is not for the court to find out whether even without additional accommodation the landlord could somehow manage to carry on. This was so held in the decision reported in **Subramania Iyer v. Krishna Swamy** (ILR 1981 (2) Kera. 442). In the decision reported in **Arjunan v. Eranu** (1991 (2) KLT 279), it has been held that even if in a case where an additional accommodation is sought as a luxury, the relief under section 11(8) of the read with section 11(10) of the Act should not be denied to the landlord. In **C.M.Bonny and others v. Koshi P.John** (2005 (1) KLJ 797), it has been held that the tenant cannot dictate the landlord to remain with a similar or less convenient premises in preference to the tenanted premises which is spacious and with more advantages and he cannot dictate the landlord in choosing his choice of premises as well. So, in view of the principles laid down in RCR 349/2015 6 the above decisions and also on the basis of the evidence available on record, the rent control court and the appellate authority were perfectly justified in coming to the conclusion that the need alleged by the landlords for additional accommodation is genuine. 9. Under section 11(10) of the Act, if the advantages of granting eviction will outweigh the advantages accrued to the landlords, then the court will have to deny eviction in favour of the landlords. The burden of proof in such cases is not as rigour as in the case of proving the bonafide need under section 11(3) of the Act. The parties are at liberty to adduce evidence to prove the advantages and disadvantages and it is for the court to evaluate the same and pass appropriate orders in the same. The court has to balance the advantages and hardship and determine whether the hardship that may be caused to the tenant would outweigh the advantage derived by the landlord. If the court finds that the hardship caused to the tenant falls short of the advantages derived by the landlord, the court has to lean in favour of the landlord. If the court is satisfied that the hardship that may be caused to the tenant will outweigh the advantage derived by the landlord, the balance will tilt in favour of the tenant and in such circumstances, the claim for eviction has to be rejected. This was so held in the decision reported in the decision reported in **Jose v.** RCR 349/2015 7 **Antony** (2005 (1) KLT 252). 10. It is brought out in evidence that the tenants have purchased a building having an extent of 99 sq. mtrs., within 200 metres away from the petition schedule building and no attempt was made on the part of the tenants to prove that the said building is not suitable for their purpose. It is settled law that mere difficulties in shifting the business is not a ground to deny eviction under section 11 (8) of the Act. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the protection under section 11(10) of the Act is also not available to the tenants and rightly ordered eviction under section 11(8) of the Act. The concurrent findings of the courts below on this aspect do not call for any interference. 11. Before disposing of the revision petition, learned counsel for the petitioners sought one year time for shifting the business. But considering the fact that the rent control petition is of the year 2009 and the need alleged is for expansion of the business and also considering the fact that the petitioners also will require some time to shift the business after making necessary alteration in the building that they have purchased, this court feels that nine months' time can be granted to the petitioners to vacate the petition schedule building and RCR 349/2015 8 nine months' time from today is granted to the revision petitioner to surrender vacant possession of the building on condition that they shall file an undertaking in the form of an affidavit before the rent control court that they will vacate the premises within the time provided by this court without any objection and on further condition that they will deposit the arrears of rent, if any, and also continue to pay the rent at the rate agreed between the parties till they vacate the premises. They shall further undertake not to induct strangers in the petition schedule building or alienate or commit any acts of waste therein. The undertaking shall be filed within a period of three weeks from today. If the undertaking is not filed within that time, then the petitioners are not entitled to the benefit of extension of time for surrender the building as directed by this court. The revision petition is dismissed with the above directions. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**