Louis Robinson v. Mathew and Joseph

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 RCRev..No. 301 of 2010() -----------------------RCA.14/2009 of RENT CONTROL APPELLATE AUTHROITY ,ERNAKULAM RCP.27/2006 of RENT CONTROL COURT ERNAKULAM .................... ## REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ LOUIS ROBINSON, AGED 35 YEARS, S/O.JOSEPH, PARIYATHUSSERY HOUSE, ANDKIKKADAVU DESOM, KUMBALANGY VILLAGE, KOCHI TALUK. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.K.SANEESH KUMAR SMT.KALA G.NAMBIAR RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. MATHEW, AGED 39 YEARS, S/O.JACOB, KONNOTH HOUSE, MUNDAMVELI, KOCHI - 682507. 2. JOSEPH, AGED 34 YEARS, S/O.JACOB, KONNOTH HOUSE, MUNDAMVELI, KOCHI – 682507. BY SRI.K.V.SOHAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -----------------------R.C.R.No. 301 OF 2010 ------------------------** Dated this the 12[th] day of October, 2010 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 is the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner on the grounds under Section 11(3) and 11(8) of Act 2 of 1965. Though both sections 11(3) and 11(8) were quoted by the landlords in the Rent Control Petition, the prominent pleadings were to the effect that the landlords, who are conducting bakery business in the room adjacent to the petition schedule premises, need the petition schedule building by way of additional accommodation for expansion of their business. The revision petitioner filed objections disputing the bona fides of the need and contending that he is entitled for the protection of the second proviso to sub section (3) of Section 11 and also that the hardship, which will be occasioned to him by the order of eviction RCR.No.301/2010 2 will out weigh the advantages, which may be gained by the landlords. The Rent Control Court on appreciating the evidence, which consisted of Exts.A1 to A5 series, Exts.C1, C1(a) and C1(b) PWs1 to 4 and RW1 rightly noticed that the apposite eviction ground, which applies in this case, is sub section (8) of Section 11, the ground of additional accommodation. That court found that the need for additional accommodation projected by the landlords was bona fide and found further that the advantages, which the landlords will gain by getting eviction, will outweigh the hardship if any that may be occasioned to the tenant. Accordingly, the order of eviction was passed under Section 11 (3). 2. RCA No. 14/2009 was filed by the revision petitioner challenging the order of the Rent Control Court. The learned Appellate Authority made a reappraisal of the evidence and under the impugned judgment has not only confirmed the order of eviction passed under Section 11(8), but has proceeded to pass order of eviction under Section 11 (3) also. 3. In this revision, the tenant challenges the judgment of the Appellate Authority on various grounds and Sri.A.Balagopalan RCR.No.301/2010 3 learned counsel for the revision petitioner addressed us on the basis of those grounds. All the submissions of Sri.Balagopalan were resisted by Sri.K.V.Sohnan, advocate who had lodged a caveat for the respondents/landlords in anticipation of the RCR. 4. Mr.Balagopalan submitted that it was highly illegal, irregular and improper on the part of the learned Appellate Authority, to have ordered eviction against the revision petitioner under Section 11(3) especially as the landlords had not preferred any appeal against the order of the Rent Control Court declining eviction under that ground. The learned counsel also drew our attention to the various decisions of this Court including the judgment in JCR Trading (P) Ltd. v. Varaghese (2009 (1) KLT 963) reiterating the position that sections 11 (3) and 11 (8) are mutually exclusive. The learned counsel further submitted that the order of eviction passed under section 11(8) has been passed on the basis of assumed admission by the tenant that the landlords have taken another building elsewhere on lease for accomplishing their need for additional accommodation. According to the learned counsel, no such admission is made. Actually the tenant emphatically denied the suggestion when it RCR.No.301/2010 4 was made to him during evidence. The learned counsel submitted that the findings of the statutory authorities in the context of the provision to sub section (1) of Section 11 is clearly erroneous. 5. Mr.Sohan would fairly concede that the learned Appellate Authority was in error in ordering eviction simultaneously under Section 11 (3) and 11 (8). According to him, the order of eviction passed concurrently under Section 11(8) by the statutory authorities is unassailable. 6. We have very anxiously considered the submissions addressed at the Bar. We have gone through the impugned judgment of the Appellate Authority and the order of the Rent Control Court. We find force in the submissions of Sri.Balagopan that the learned Appellate Authority was in error in ordering eviction simultaneously under Section 11 (3) and 11 (8). The issue is covered in favour of the revision petitioner by various decisions including JCR Trading (P) Ltd. v. Varghese (supra). We, therefore, straight away vacate the order of eviction passed by the Appellate Authority for the first time under Section 11 (3) of Act 2 of 1965 against the revision petitioner. RCR.No.301/2010 5 7. The question which remains to be considered is whether there is anything irregular, illegal or improper about the order of eviction concurrently passed under Section 11 (8) against the revision petitioner. The above question, in our opinion, can be answered only in favour of the landlords. It is trite that the standards for establishing the bona fides of the ground under Section 11(8) are not rigours as in the case under Section 11(3). It is inspiring evidence that was given by the landlord as PW1. We are of the view that the appreciation of the evidence by the statutory authorities in the context of Section 11 (8) was quite proper and the finding entered by them that the landlords need the building by way of additional accommodation is legal, proper and regular in all respects. Same is the position as regards the findings in the context of the proviso to sub section (10) of Section 11. It is in evidence that the tenant revision petitioner has other places of business. It is also in evidence that he is financially well placed. There is some evidence to hold that other buildings will be available to him in the locality. In fact, the landlords were prepared to let out the first floor of the petition schedule building itself to the revision petitioner for shifting his RCR.No.301/2010 6 business. But for reasons not known to them, the revision petitioner was not prepared to accept that building. In short, we do not find any illegality about the order of eviction. 8. As a last plea, Mr.Balagopalan requested that at least 9 months be granted to the revision petitioner for surrendering the premises. The above request is opposed very stiffly by Mr.Sohan. According to him, the landlords should be allowed to expand their business before the Christmas season. Despite the opposition, we feel that there is justification for granting time to the revision petitioner till 15/4/2011 subject to certain conditions. 9. The result of the above discussion is as follows; i). The RCR is allowed to the extent of vacating the order of eviction passed under Section 11(3). ii). The order of eviction passed under Section 11(8) is confirmed. Iii). The Execution Court is directed to keep in abeyance proceedings for delivery till 15/4/2011 subject to the following conditions; The revision petitioner shall file an affidavit before the 7 RCR.No.301/2010 Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the respondents/landlords on or before 15/4/2011 and undertaking further through the same affidavit that arrears of rent if any will be discharged within one month and that occupational charges at the current rent rate will also be paid as and when the same falls due without default. We make it clear that the revision petitioner will get the benefit of time granted above only if he complies with the conditions mentioned above. ## **PIUS C.KURIAKOSE,JUDGE** ## **P.S.GOPINATHAN, JUDGE** dpk