Narayana Pai v. Lathakumari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** ## **RCRev.No. 135 of 2018** **AGAINST THE JUDGMENT IN RCA 1/2017 OF THE RENT CONTROL APPELLATE AUTHORITY/ ADDITIONAL DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA DATED 27-02-2018** **AGAINST THE ORDER IN RCP.NO.26/2015 DATED 20.10.2016 OF ADDITIONAL RENT CONTROL COURT, CHERTHALA** **REVISION PETITIONER :** **NARAYANA PAI, S/O GOVINDA PAI, AGED 74 YEARS, RESIDING AT HOUSE NO.32/1989 A, NETHAGI ROAD, EDAPPALLY SOUTH.P.O, PADIVATTOM DESOM, KOCHI - 682 024.** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENT :** **LATHAKUMARI, W/O.RETHNAKARA RAO, RAO STORES, NADAKKAVU ROAD, CHERTHALA, PIN - 688 537.** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON 08.04.2019 PASSED THE FOLLOWING :** **RCRev.No. 135 of 2018** 2 ## **ORDER** ## Annie John, J. The revision petitioner is the appellant in RCA.No.1/2017 of the Rent Control Appellate Authority-II, Alappuzha and the petitioner in RCP.No.26/2015 of the Additional Rent Control Court, Cherthala. 2. The Rent Control Petition was filed under Section 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as, 'the Act'] for inaction for additional accommodation of the petitioner's own business under the name and style 'KNG Aabharan'. 3. The respondent had filed an objection denying the alleged need of the petitioner to get the scheduled shop room vacated to expand his business. According to her, the entire building, including the scheduled shop room had been used by her father-in-law for doing business and after is death, her husband had been running the same. She took over the business when her husband became **RCRev.No. 135 of 2018** 3 sick. She is running business in the scheduled shop room for the last 20 years. But the Rent Control Court as well as the Rent Control Appellate Authority, out of sympathy alone dismissed the petition and appeal. Highly aggrieved by the judgment of the court below and the Rent Control Appellate Authority, this revision petition has been filed. 4. The petition schedule room is one of 3 rooms in the larger structure, that the northern most room was rented out to the Central Bank and the middle room was being used for the petitioner's own business under the name and style 'KNG Aabharan' for sale of ornaments in gold and silver, and the southernmost room was under lease to the respondent. The 3 rooms form part of the same structure and the southernmost room was abutting the building portion in the possession of the petitioner. The building was situated by the side of a commercial road. The business of the petitioner was doing well and he had made arrangements for expansion of the business for which he requires the vacant possession of the petition schedule **RCRev.No. 135 of 2018** 4 room. Inspite of repeated demands, the respondent refused to vacate the premises. 5. The respondent had taken a contention that the need projected by the petitioner is incorrect. There is no necessity for the petitioner to expand his business. According to her, herself and family are living with sole income from the said shop room. She is said to be residing in a rental house and the availability of a suitable shop room to run her business is denied. According to her, the entire building, including the petition scheduled shop room had been used by her father-in-law for doing business and after his death, her husband had been running the same. She took over the business when her husband became sick. She was evicted from the remaining shop rooms by the petitioner under threat. She is also running business in the scheduled shop room for the last 20 years. 6. On the side of petitioner, himself was examined as PW1 and Exts.A1 to A12 were marked. On the side of the respondent, himself was examined as CPW1 **RCRev.No. 135 of 2018** 5 and Exts.B1 to B5 were marked. The Adv. Commissioner was examined as CPW2 and Exts.C1 and C1(a) were marked. But the Rent Control Court has not considered the matter and dismissed the petition. According to the appellant, the court below have totally misunderstood the law declared by this Court and the Apex Court as to the scope and ambit of Section 11(8) of the Act. 7. Both the courts below have accepted that the need put forth by the revision petitioner is genuine and proper But strangely, committing gross error in law, based solely on misplaced sympathy and assumptions and surmises, the courts below have come to the conclusion that the respondent “deserves” the protection given under the first proviso to Section 11(10) of the Act. 8. The respondent has produced Exts.B3 to B5 - a bunch of x-ray film and the rest report of an ECG and a neurology test. The said documents were not proved in evidence as per law and moreover, the said documents do not have any relevance to decide the question of **RCRev.No. 135 of 2018** 6 comparative hardship. The consideration of sympathy are not intended to virtually nullify the ownership of the landlord. But the tenant has been carrying on business in the same building on the same plea regarding illness and ailment for several decades. 9. The Rent Control Petition was filed in the year 2015. The building consists of three rooms situated in north-south direction. Northern most room is rented out to Central Bank. The middle room is used by the petitioner for conducting a jewellery and the southern room is occupied by the respondent for running a stationery shop. It has also borne out in evidence that Cherthala private bus stand road is at the eastern side of the building and Cherthala-Nadakkavu road at its southern side. The definite case of the petitioner is that the scheduled room occupied by the respondent is required by the petitioner to establish his business. But the respondent is not ready to vacate the petition schedule building. According to her, the need urged by the petitioner to get the scheduled shop **RCRev.No. 135 of 2018** 7 room vacated to expand his business is untrue. According to her, she has no other business or source of income to have her livelihood and her family and herself are fully depending upon the income which derives from the business being conducting in the scheduled shop room. At present, she is residing in a rental house and there is no suitable room available to run her business. 10. Per contra, she contended that the revision petitioner has various shop rooms and those rooms were rented out and he is in possession of vacant rooms also. Previously the entire building including petition schedule shop room had been utilized by her father-in-law for conducting business and after his death, her husband started running the same and she took over the business when her husband became sick. Subsequent to that, she was evicted from the remaining shop room by the petitioner under threat. The definite case of the respondent that she is conducting business in the petition schedule shop room for the last twenty years. **RCRev.No. 135 of 2018** 8 11. The court below as well as the Rent Control Appellate Authority found that the petitioner had bona fide need to occupy the schedule room for expanding his business. But the Rent Control Court as well as the Appellate Court has a view that the hardship that may be caused to the respondent would over weigh the advantage to the landlord by ordering eviction of the respondent from the petition schedule shop room. Therefore, the prayer seeking eviction under Section 11(8) of the Act was rejected. The court below as well as the appellate court has considered the fact that the respondent has taken over the business in the petition schedule shop room immediately after her husband became ill. She has produced Exts.B3 to B5 series to establish that her husband is laid up in illness. The fact that the respondent's father-in-law was in occupation of the remaining shop room at northern side and subsequent to that, her husband was in occupation of the same not disputed. The petitioner has not disputed that the respondent has taken over the business in the petition **RCRev.No. 135 of 2018** 9 schedule shop room. So, the main ground put forth by the respondent was that her husband is sick so that she could not be able to have her livelihood without the business, which is being conducting in the petition schedule shop room. Even during cross examination, she has assertively stated that the income from the petition schedule shop room is only to have her livelihood. Now the appellate court found that the appellant has not produced any evidence to disprove the case advanced by the respondent and further in cross examination, the respondent has stated that it was difficult for her to shift the business to some other place as a woman at this age. 12. Considering all these aspects, the Rent Control Court as well as the Appellate Court held that the respondent deserves protection of the first proviso to Section 11(10) of the Act. Accordingly the Rent Control Court as well as the Appellate Court dismissed the petition as well as the appeal. The main aspect that the revision petitioner requires the petition schedule shop room for **RCRev.No. 135 of 2018** 10 expansion of his business is found to be genuine. In fact, respondent is in occupation of the petition schedule shop room for the last 20 years and being a tenant, respondent is not supposed to dictate that how and when the revision petitioner to start his business or expand his business. It is true that the first proviso to Section 11(10) of the Act gives some benefits to the respondent/ tenant to prove that the hardship will be over weigh than to grant eviction to the revision. Now we have to find out whether the need urged by the revision petitioner or the ground projected by the respondent will be balanced or unbalanced. ## 13. Section 11(0) of the Act reads thus : _Sec.11(10)- “The Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7), or sub-section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application :_ **RCRev.No. 135 of 2018** 11 _Provided that, in the case of an application made under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord :_ _Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate”._ 14. This sub-section and its provisos are additional precautions. The legislature had provided to safeguard the interest of the tenant. This Section assists sub-sections 3, 4, 7, and 8 of Section 11. This Section requires landlord to prove _bona fide_ of his claim under the above-mentioned sub-sections. The process of weighing the comparative hardship is difficult where various factors have to be examined and determine how each factor tilts the balance on either side. Inspite of this determination of hardship is not **RCRev.No. 135 of 2018** 12 insurmountable, the court should try to find out which of the two sides would suffer least injury or inconvenience. The question of comparative hardship is closely tagged with the question of _bona fide_ requirement. The stage of comparative hardship is reached only after the finding of _bona fide_ requirement in favour of the landlord. So, in order to analyse this fact, the court has to look whether any alternate buildings are available for the landlord or the tenant, the financial position of the landlord and tenant, the nature and extend of the business. Where the parties suffer the same hardship, the landlord should not be deprived of his own accommodation. 15. In this case, the respondent/ tenant is occupying one of the rooms adjacent to the room occupied by the landlord. It has already held that the landlord _bona fidely_ requires the petition schedule room for expanding the business. Here, the landlord is **RCRev.No. 135 of 2018** 13 running a business of gold and the respondent/ tenant is running a professional shop. According to the tenant, if she is evicted from the petition schedule shop room, that will cause much hardship as her husband is laid up. She is the sole breadwinner of the family. 16. In _**Marzook v. Simon [2012(2) KLT 276]**_ it has held that “hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement. Fact that the landlords are affluent and that the tenant may have to shell out money for alternative accommodation is no ground to deny eviction. Comparative hardship even if there is any can be mitigated by granting a reasonable time to vacate”. 17. Admittedly, the respondent/ tenant is occupying the petition schedule shop room for the last 20 years. The landlord requires additional **RCRev.No. 135 of 2018** **==> picture [12 x 8] intentionally omitted <==** accommodation under Section 11(8) of the Act for expanding his business and it cannot be said that his _bona fide_ requirement is under the ruse of eviction of the tenant. So, on comparing the hardship, we find that the landlord's requirement is also equally important and the comparative hardship under Section 11(10) of the Act can be compensated by granting respondent/ tenant sufficient time to vacate the premise. Accordingly the appeal is allowed and the respondent/ tenant is hereby directed to vacate the premises within one year from today on the following conditions :- 1. The respondent/ tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that she will vacate the petition schedule shop room within one year from today. **RCRev.No. 135 of 2018** 15 2. The respondent/ tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. 3. In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the petitioner/ landlord will be at liberty to proceed with the execution of the eviction order. Sd/- ## **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM