M/S CAGALIAKOTWALA AND CO.PVT.LTD. v. T. Rajeevan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 RCRev..No. 180 of 2008() -----------------------RCA.39/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.95/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITOINER/APPELLANT/RESPONDENT: ------------------ M/S.C.A.GALIAKOTWALA AND CO.PVT.LTD., HAVING ITS REGISTERED OFFICE AT MUMBAI AND DOING BUSINESS AT CLOTH BAZAR ROAD, BROADWAY, ERNAKULAM, BY ADV. SRI.K.N.SIVASANKARAN SRI.V.V.ASOKAN RESPONDENT:RESPONDENT/PETITIONER ------------- T.RAJEEVAN, 47 YEARS, S/O.A. THRIVIKRAMA DAS, R.AT,.RAJASUDHA, G-104 PANAMPILLY NAGAR, KOCHI-36. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28/7/2008, THE COURT ON 5/8/2008 PASSED THE FOLLOWING: ## I.A. NO.1696/2008 DISMISSED. 5/8/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.180 of 2008** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2008.** ## **O R D E R** ## Ramachandran Nair, J. The aggrieved tenant in a petition for eviction under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act) is the petitioner herein. The landlord sought eviction of the tenant under Sections 11(3) and 11(8) of the Act. Both the authorities below have concurrently held against the tenant. Herein, the Rent Control Court found that the landlord's case definitely falls under Section 11(8) of the Act. 2. The petition schedule building forms a portion of the two storied building situated in Cloth Bazar Road, Ernakulam. It has got two rooms in the ground floor and two rooms in the first floor. Originally, the building belonged to one Anvar Sadat from whom the landlord purchased the eastern half of the ground floor comprising the petition schedule room and a small portion on its rear side and his brother purchased three western half of the ground floor. The landlord, even before the purchase of the said property, has been conducting a partnership business by name M/s. Anand Hardwares in the western portion of the ground floor. Another firm, viz. RCR 180/2008 -2- M/s. Anand Paints is also doing business in paints in the same premises, wherein his brother is one of the partners The ground floor area of the petition schedule building is 'L' shaped which is jointly occupied by M/s. Anand Hardwares and M/s. Anand Paints. The landlord purchased the petition schedule building for additional space for expansion of his partnership business with the intention to use it as a single building. It was also contended that there is no sufficient space in the said shop room, occupied by the landlord. 3. The tenant mainly contended that two firms in different names cannot function in the same premises and the requirement of additional space was also disputed. 4. Before the Rent Control Court, P.Ws.1 and 2 were examined on the side of the landlord and Exts.A1 to A11 have been marked and the respondent was examined as R.W.1. The Commissioner's Report has been marked as Ext.C1. 5. The Rent Control Court, on an analysis of the oral and documentary evidence found that both the partnerships are doing business in the common space. This is clear from the Commissioner's report also. It was found that the petition schedule building, and the adjoining portion of which is in occupation of the landlord, forms part of the same building and is situated under a common roof. The petition schedule room is the adjacent room on the eastern side. The Rent Control Court also examined the RCR 180/2008 -3- question of comparative hardship and on the finding that the tenant is a private limited company which is having various branches all over India, it was found that the evidence favours the case of the landlord. The evidence also shows that there are many other premises available in the locality for rent. This view was concurred by the appellate authority. 6. Learned counsel for the petitioner submitted that the question whether the additional accommodation sought by the landlord comes within the scope of Section 11(8) of the Act, was not properly considered by the authorities below. It was submitted that going by the evidence, M/s. Anand Hardwares and M/s. Anand Paints are using very same premises for doing the business of these partnerships. It is therefore submitted that unless the landlord is in exclusive occupation of the premises, the requirement of Section 11(8) will not be satisfied and on that ground the eviction sought under Section 11(8) cannot be allowed. 7. A reference to Section 11(8) is necessary to appreciate the argument. The same is extracted below: “A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.” To satisfy the said provision, the ingredients required are that the landlord should occupy a part of the building and the requirement should be to evict RCR 180/2008 -4- the tenant who is occupying whole or any portion of the remaining part of the building. The landlord can seek eviction if he requires additional accommodation for his personal use. Therefore, these three components should be established by the landlord. In this case the evidence shows that both the firms M/s. Anand Hardwares and M/s. Anand Paints are using the common premises for doing their business. It is not the contention of the tenant/revision petitioner herein that the landlord is not at all occupying the premises. The contention is that the landlord is not in exclusive use of the premises. Plainly, going by the section, what is required is that the landlord should have occupation of a part of the building to maintain an application for seeking additional accommodation. 8. In the objections, there is no contention that M/s. Anand Hardwares is not in occupation of the premises. The Commissioner's report shows that the 'L' shaped premises is under the ownership of the petitioner and his brother and the partnerships are in occupation of it. It is clear from the report that there is paucity of space within the the shop room occupied by the landlord. It has also been made clear from the Commissioner's report that both these establishments are doing business in the common space. Thus, on facts it is clear that the landlord is doing business in the name M/s. Anand Hardwares in the room occupied by him. Merely because M/s. Anand Paints is also doing its business, that will not show that the landlord herein is not in occupation of the premises. Further, the partners of these RCR 180/2008 -5- two partnerships are close relatives. 9. Even otherwise, the said contention has no merit. What is necessary for invoking Section 11(8) of the Act is occupation by the landlord and not possession by the landlord. It is clear that the landlord should be using the premises for his avocation. The Apex Court in **Kanniammal v. Chellaram** {(2002) 4 SCC 627} while examining the scope of a similar provision under the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, held that “since the requirement of additional accommodation by the landlord is with reference to the manner of his user of that part of the building which is in his occupation, it is the nature of that requirement that should prevail over the manner of user of the tenant of the portion leased out to him. In other words, the need for additional accommodation is for extending the user of the building by the landlord to the leased portion for the same purpose for which the portion not leased out is being used.” The above dictum could be profitably applied to the facts of this case to hold that since the landlord is in occupation and is in user of part of the building, the landlord is perfectly entitled to maintain an application for eviction seeking additional accommodation. 10. The Appellate Authority has rejected the argument of the tenant relying upon a decision of this court in **Rajkumar Chadda & another v. K.P. Abdulrahiman and others** (1987 KLJ 677). Therein, the question considered was whether a partnership which is doing business in a part of RCR 180/2008 -6- the building, can seek additional accommodation for the other part since the provision in question allows the landlord to seek additional accommodation for his personal use.” It was held that merely because the partnership is doing business, the requirement pleaded cannot be rejected. The learned Judge was pleased to hold that “when a partnership is running a business, at least so far as the active partners are concerned they are personally using the premises. The landlord in this case as an active partner of the business, is personally using the premises and when additional accommodation is required for the business of the partnership the requirement is for his personal use. It may be that it is for the personal use of other active partners also. But as long as the provision does not insist on the requirement for exclusive personal use, the court will not be justified in putting such a narrow construction to the provision.” We find that the above dictum was rightly applied by the Appellate Authority to reject the contention of the tenant/petitioner herein. 11. Both the authorities have found that all the ingredients have been satisfied by the landlord herein. It was also found that on the question of comparative hardship, the tenant has not established the elements to prove their contentions. The report of the Commissioner shows that other alternative buildings are available in the same locality for shifting the business of the tenant. The landlord has taken a building on higher rent for storing his articles. Apart from that, the tenant is a company having RCR 180/2008 -7- branches in various parts of India and therefore they are not depending on the income from the business in the schedule property alone. Therefore, both the authorities found that the comparative hardship which the landlord may be put to, will definitely outweigh the hardship, if any, that may occur to the tenant. We find no reason to interfere with the above conclusion also. 12. At any rate, it cannot be said that the view taken by the authorities are so perverse warranting interference in exercise of the powers of revision. 13. At this stage, learned counsel for the petitioner wanted some time to vacate the premises. We grant six months time from today to the petitioner to vacate the premises on condition that they file an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of six months from today and also to pay the arrears of rent, if any, due within three weeks from today and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within the above said period of three weeks from today. The petitioner shall deposit the entire arrears of rent, if any, within the aforesaid period of three weeks and shall continue to pay an amount equivalent to the rent payable, towards compensation for use and occupation, till possession is surrendered. If any of the conditions RCR 180/2008 -8- aforesaid is violated, then the order of eviction will become enforceable at once. **( P.R.Raman, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/**