RCRev. No. 311 of 2014 (D)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936 ## **RCRev..No. 311 of 2014 (D)** AGAINST THE JUDGMENT IN RCA 54/2011 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY - I, ,KOTTAYAM DATED 27-06-2014 AGAINST THE ORDER IN RCOP 4/2010 OF THE ADDL.RENT CONTROL COURT, KOTTAYAM DATED 05-09-2011 ## REVISION PETITIONER/APPELLANT/COUNTER PETITIONER: RAJU MATHEW, AGED 57 YEARS S/O.MATHEW, POLACHIRA HOUSE, SHALEM PRINTERS MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ## RESPONDENTS/RESPONDENTS/PETITIONERS: 1. JACOB BABU, AGED 34 YEARS, SON OF BABU JACOB, KOZHIPPURATH HOUSE COLLECTORATE P.O., MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. 2. ANNAMMA BABU, AGED 54 YEARS WIFE OF BABU JACOB, KOZHIPPURATH HOUSE KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.A.P..SUBHASH (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.D.RAJAN, JJ.** **---------------------------------------------------R.C.R. NO.311 OF 2014 (D)** **---------------------------------------------------Dated this the 25[th] day of November, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** The tenant challenges the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 2. The respondents filed R.C.O.P.No.4 of 2010 on the file of the Rent Control Court, Kottayam against the petitioner under Section 11(8) of the Act. The tenant is conducting business in room No.11/223 in the petition schedule building. The building is situated on the southern side of K.K.Road and on the northern side of Kottayam-Karukachal Road. There are six rooms in that building. Room No.11/228 is in the occupation of the landlord (first respondent herein). He runs a home appliances store under the name and style ## **R.C.R. NO.311 OF 2014 (D)** :: 2 :: “New Galaxy”. On the eastern side of the room in the possession of the landlord (first respondent herein), the tenanted room is situated having room No.11/223. The tenanted building has an area of 12x8 metres. That room faces K.K.Road on the northern side. The tenant is conducting a printing press in that building. According to the tenant, he has employed eight workers in the printing press. The printing press was commenced in 1973 and at that time he was paying a rent of only ₹150/-. Now the tenant is paying a rent of ₹ 1,200/- per month. The other two rooms in the possession of the other tenants are 11/227 and 11/226, which are facing towards south abutting Kottayam-Karukachal Road. There are two other rooms on the eastern side of the building. They are room Nos.11/230 and 11/224. Room No.11/224 is in the possession of a tenant. According to the tenant, room No.11/230 is even now lying vacant. Room Nos.11/224 and 11/230 have no access towards K.K.Road on the north. A passage leading from Kottayam-Karukachal Road on the southern side reaches these two rooms. According to the first respondent/landlord, he desires to expand his business, for which he requires room No.11/223 in the possession of the tenant. He wants to store more articles for the purpose of his business and the ## **R.C.R. NO.311 OF 2014 (D)** :: 3 :: adjacent room facing K.K.Road is the tenanted room, namely, room No.11/223. 3. The tenant disputed the bona fides of the claim under Section 11(8) of the Act. According to him, the landlord is in possession of other rooms which can be used for satisfying his purpose, even if the said purpose is genuine. The tenant contended that he is doing business since 1973 employing eight persons and he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building. The tenant also contended that no suitable rooms are available in the locality to accommodate the said business run by him. 4. Oral and documentary evidence were adduced before the court below. PW1 is the landlord and PW2 is the Commissioner who inspected the property and submitted Ext.C1 series of reports and plan. RWs.1 and 2 were examined on the side of the tenant. 5. The trial court, on a consideration of the entire evidence on record, held that the need put forward by the landlord under Section ## **R.C.R. NO.311 OF 2014 (D)** :: 4 :: 11(8) is genuine and that the petition schedule building is the most suitable building for the purpose of the landlord. The Rent Control Court also held that room Nos.11/224 and 11/230 are not sufficient for the purpose of the landlord, since those rooms do not have entrance from K.K.Road. The room in which business is being run by the landlord faces K.K.Road and the entry is from K.K.Road whereas room Nos.11/230 and 11/224 have entry only to a passage leading to Kottayam- Karukachal road on the southern side. 6. The Rent Control Court found that the comparative hardship under the first proviso to Section 11(10) of the Act is in favour of the landlord. It was held that the hardship that would be caused to the tenant by ordering eviction would not outweigh the advantage to the landlord. The Rent Control Court took note of the fact that there are other buildings available in the locality for accommodating the business of the tenant. Though the landlord raised a contention that the wife of the tenant is conducting another printing business in the nearby place, that was not fully accepted by the Rent Control Court. ## **R.C.R. NO.311 OF 2014 (D)** :: 5 :: ## 7. On appeal by the tenant, the Appellate Authority confirmed the findings arrived at by the Rent Control Court. ## 8. The authorities below relied on the decision in **Lekshmana** **Naikan** v. **Gopalakrishna Pillai (1981 KLT 167)** , wherein it was held that the test of bona fides under Section 11(8) read with Section 11 (10) is not whether the landlord could very well afford to live without the additional accommodation, but whether in seeking the additional accommodation the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction. In _Lekshmana Naikan's case,_ the tenanted building was a residential building. The authorities below also relied on the decision of the Supreme Court in **Sait Nagee Purushotham & Co. Ltd** . v. **Vimalabai Prabhulal (2005 (4) KLT 452 (SC))** and held that the tenant cannot dictate terms to the landlord and advise him as to what he could do and what he should not do. It is always the privilege of the landlord to choose the nature of the business and the place of business. ## 9. In **Indian Saree House** v. **Radhalakshmy (2006(3) KLT** **129)** it was held that the facts constituting the ingredients of the ## **R.C.R. NO.311 OF 2014 (D)** :: 6 :: second proviso to Section 11(3) may be relevant in certain cases coming under Section 11(8) only for considering the proof or otherwise of the comparative hardship under the first proviso to Section 11(10) of the Act. It has come out in evidence that there are other buildings available in the locality. The facts and circumstances of the case will also disclose that the advantage to the landlord by ordering eviction would be much more than the hardship that would be caused to the tenant if he is evicted from the tenanted premises. 10. The admitted and proved facts would show that for expanding his business it would be ideal for the landlord if he gets vacant possession of the tenanted premises. Even the tenant has no case that expansion of business is not possible as contended by the landlord. The tenant has also no case that the tenanted building would not be more suitable for expanding the business of the landlord more conveniently and profitably. The case put forward by the tenant that some how or other the landlord can find out space for storing his articles is not a matter which the tenant could dictate to the landlord. The landlord being the owner of the building is the best judge to assess the situation and to choose the place where he has ## **R.C.R. NO.311 OF 2014 (D)** :: 7 :: to do the business or in what manner he has to expand the business. The courts below have held, on facts, that the tenanted premises is the most suitable place for expanding the business of the landlord. The conclusions were arrived at by the courts below on the basis of the findings of fact recorded by them. In a Revision under Section 20 of the Act, the High Court would not be justified in upsetting the findings of fact unless they are vitiated by any material irregularity, illegality or impropriety. No such ingredient is established in the present case. The Revision lacks merits and it is, accordingly, dismissed. Lastly, the learned counsel appearing for the petitioner/tenant submitted that a reasonable time may be granted to the tenant to vacate the tenanted premises. Taking into account the facts and circumstances of the case, we are inclined to grant time till 31.8.2015 to the tenant to vacate the premises. Accordingly, time upto 31.8.2015 is granted to the tenant to vacate the petition schedule building on condition that he shall file an affidavit before the Rent Control Court on or before 31.12.2014, unconditionally undertaking to vacate the petition schedule building on or before ## **R.C.R. NO.311 OF 2014 (D)** :: 8 :: 31.8.2015 and also on condition that the tenant shall deposit the entire arrears of rent, if any, before the Rent Control Court on or before 31.12.2014 and also on condition that the monthly rent shall be paid on or before 10[th] of the succeeding months . If the tenant fails to comply with any of the conditions mentioned above, the landlord would be entitled to proceed with the execution. If the tenant complies with the conditions, the execution proceedings shall not be commenced/continued till 31.8.2015. **(K.T.SANKARAN) Judge** **(P.D. RAJAN) Judge** ahz/