Saju Joseph v. Shyam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944** **R.C.REV.NO. 254 OF 2019** **AGAINST THE JUDGMENT DATED 31.10.2018 IN R.C.A.NO.12 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), NORTH PARAVUR AND THE ORDER DATED 04.03.2016 IN R.C.P.NO.12 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF), NORTH PARAVUR** ## **REVISION PETITIONER:** **SAJU JOSEPH AGED 67 YEARS, S/O AIPPU, AMBATT, NANTHIATUKUNNA MURI, PARVUR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. G.KRISHNAKUMAR SRI.JUBYRAJ.A.P** ## **RESPONDENT:** **SHYAM AGED 69, S/O.PARAMESWARAN, PARAMBUMMAPARAMBIL, PUTHEZHATH, PARAVOOTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM.** **BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.SHELLY PAUL** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.254 of 2019 ## **O R D E R** ## Ajithkumar, J. The tenant-respondent in R.C.P.No.12 of 2014 before the Rent Control Court (Munsiff), North Paravur, is the petitioner. The respondent herein-landlord filed the rent control petition seeking eviction of the petitioner under Sections 11(2)(b), 11(4)(v) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965. That rent control petition was allowed in part by ordering eviction under Section 11(2)(b) of the Act. Since the prayer for eviction under Section 11(4)(v) and 11(8) of the Act was declined by the Rent Control Court, the respondent herein has preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge), North Paravur. The appeal was allowed; thereby the petitioner was directed to surrender vacant possession of the petition schedule shop room under Section 11(4)(v) and 11(8) of the Act also. The said judgment is under challenge in this revision under Section 20 of the Act. 3 R.C.Rev.No.254 of 2019 2. On 25.06.2019, notice was ordered to be issued to the respondent by speed post. Execution of the order of eviction was stayed for a period of three weeks. The order of stay was extended from time to time and is still in force. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The case of the respondent was that the petitioner defaulted payment of rent since 09.05.2009, he ceased to occupy the room from May, 2013 onwards, and the respondent, who is conducting a typewriting institute in the remaining part of the building, is required the petition schedule shop room for extending his institution. 5. The eviction claimed by the petitioner under all three grounds was strongly resisted by the petitioner. He maintained that there was no arrears of rent. The claim of the respondent that he was conducting a typewriting institute, even was denied. The further contention was that he has been conducting a money lending business in the petition schedule shop room and there was no cessation of occupation. 4 R.C.Rev.No.254 of 2019 6. Before the Rent Control Court, PW1 and PW2 were examined on the side of the respondent and RW1 & RW2 were examined on the side of the petitioner. Exts.A1 to A3 and Ext.C1 were marked. 7. Regarding the order of eviction of the Rent Control Court under Section 11(2)(b) of the Act, no appeal was filed by the petitioner, and hence the said order has become final. 8. The specific case of the respondent is that since May, 2013, the petitioner has not been in occupation of the petition schedule shop room. The respondent as PW1 has deposed in court that fact. It is his claim that he personally knew that the said room has been kept under lock and key for long. PW2 is a common acquaintance of both the petitioner and the respondent. PW2 deposed in court that the money lending business earlier being run by the respondent in the petition schedule shop room and has not been functioning for the last two years. 9. The petitioner was examined as RW1. He stated that he is in occupation of the petition schedule shop room 5 R.C.Rev.No.254 of 2019 and the allegation that he ceased to occupy the same is false. He was asked whether he held a valid license, sales tax registration, etc. for a money lending business. It was also asked whether he had been paying electricity charges for the petition schedule shop room. He conceded that the production of such documents would prove whether his concern has been functioning or not. He undertook to produce those documents also. But no such documents have been produced. 10. In the light of that evidence, the report of the Commissioner has to be considered. The Commissioner reported as per Ext.C1 that at the time of her inspection, grass had sprung even to the concrete portion of the petition schedule shop room. The dust accumulated on the lock of the room was that thick indicating, in her view, that the said room had been under lock and key permanently for at least a period of two years. The Commissioner is RW2. Although she was examined at length, nothing to disbelieve her statement regarding her observations during her inspection has come out. The report of the Commissioner, which vividly has narrated the state of affairs, enures an unmistaken inference 6 R.C.Rev.No.254 of 2019 that the petition schedule shop room has been kept locked for a long period. From the oral testimony of PW1 and PW2 and the report, the inevitable finding is that the petition schedule shop room had not been in occupation of anyone for more than six months before the date of filing of the petition. The petitioner failed to produce any document or adduce convincing evidence to prove otherwise. That evidence was considered in detail by the Appellate Authority before entering into a finding on this aspect. The said findings on fact, which rests on sound reasoning, are not expected to be interfered with by this Court in the exercise of the jurisdiction under Section 20 of the Act. Therefore, we confirm the order of the Appellate Authority granting eviction under Section 11(4)(v) of the Act. 11. The fact that the respondent has been conducting a typewriting institute in the remaining portion of the building is proved by the evidence of PW1. Evidence of PW2 further corroborated that fact. When the landlord, who proved to be in possession of a part of the building, claims eviction of the tenant, who is occupying another part of the same building, it 7 R.C.Rev.No.254 of 2019 is not able to doubt the requirement unless there are telling reasons to doubt the bona fides of the landlord. In the light of the evidence available record, we hold that the claim of the respondent for vacant possession of the petition schedule shop room for the purpose of extending his typewriting institution, which has been functioning in the other portion of the same building, is genuine. 12. As per the first proviso to Section 11(10), 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. As per the second proviso to Section 11(10), 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. 13. In **Hassan Koya K. v. James George and others [2019 (4) KLJ 74]** a Division Bench of this Court held that, under the provisions of the Kerala Buildings (Lease and Rent Control) Act, the distinction maintained by the legislature 8 R.C.Rev.No.254 of 2019 between Section 11(3) and Section 11(8) is clear. The test to be applied in a proceeding for eviction under Section 11(8) or Section 11(3), as the case may be, for distinguishing these two grounds of eviction is to ascertain whether landlord and tenant are stated to be occupying different portions of the same building owned by the landlord or whether the tenant is stated to be occupying the whole building of the landlord. If the landlord is in occupation of a portion of his building and asks for eviction of the portion let to his tenant urging the need for additional accommodation for personal use, it would then be a case of eviction falling under Section 11(8). On the other hand, if the tenant is put in occupation of the entire building owned by the landlord who has no part of the structure in his custody, it is then a case brought for eviction under Section 11(3) of the Act alone, provided other conditions for eviction are also present. Legally, the grounds of eviction under Section 11(3) and Section 11(8) are fundamentally different and considered therefore as mutually exclusive. The distinction emerging between these two grounds has been discussed in **S.R. Sabu v. T.K. Vasudevan** 9 R.C.Rev.No.254 of 2019 ## **[(2001) 8 SCC 110]** and **Indian Saree House and others** ## **v. Radhalakshmy and others [2006 (3) KLT 129]** . 14. In **Hassan Koya K. [2019 (4) KLJ 74]** the Division Bench noticed that the bona fide claim understood in terms of Section 11(10) of the Act is in no way different from the expression 'bona fide' used in Section 11(3) of the Act. Bona fide need or requirement must be the outcome of the natural, sincere, real and honest desire of the landlord rather than a mere wish or desire. This principle of law has long been settled as is discernible from **Mattulal v. Radhe Lal [(1974) 2 SCC 365], Chandukutty v. George [1977 KLT 607]** and **Adil Jamshed Frenchman (Dead) By Lrs. v. Sardar Dastur Schools Trust and others [(2005) 2 SCC 476]** . 15. In **Hassan Koya K.** the Division Bench held that, it is mandatory that a definite finding on the issue of comparative hardship between the parties must be entered in a proceeding for eviction under Section 11(8) of the Act. If the Rent Control authorities find on evidence that hardship to which the tenant would be exposed in the case of eviction will 10 R.C.Rev.No.254 of 2019 be higher than that of the landlord in the case of refusal of eviction, prayer for eviction could only be declined. If, on the other hand, the evidence fortifies a finding that landlord would occasion to suffer greater than the tenant in case of refusal of eviction, an order of eviction under Section 11(8) in such a case would certainly be justified. 16. In **Hassan Koya K.** the Division Bench found that the considerations relevant for the decision on the issue of comparative hardship in terms of Section 11(10) of the Act are unrestricted and wider in scope than the conditions specified in Section 11(3). But the only thing that needs to be ensured by the court is that those considerations must be materially relevant and essential to the just decision of the issue. Discretion of the court in this respect should be exercised carefully guided by sound judicial principles and also in conformity with principles of justice, equity and good conscience. Burden of proving such relevant facts within the scope of Section 11(10) is equal to both the parties unlike the burden of proof cast by Section 11(3) of the Act. The landlord seeking eviction under Section 11(8) has not only to prove the 11 R.C.Rev.No.254 of 2019 bona fides of his claim for additional accommodation but also the comparable degree of hardship which he would suffer than the tenant in the case of refusal of eviction. Burden thereafter shifts to the tenant who would then be liable to show that hardship on him exceeded the landlord in case he seeks to secure a decision favourable to his continuance. The Division Bench noticed that the decisions in **Phiroze Bamanji Desai v. Chandrakant M. Patel [(1974) 1 SCC 661]** and **Arjunan v. Eranu [1991 (2) KLT 279]** make the legal position clear in this respect. The said principle has reiterated and explained by this Court in **Krishnan v. Dr.Noorjahan [2022 (2) KHC 204]** . 17. In this case, the respondent, who is conducting his establishment in a portion of the building, needs the petition schedule shop room for expanding his institution in a more convenient way. The petitioner-tenant on the other hand is not in occupation of the premises. For a long, he has not been doing any business there. In such circumstances, the petitioner cannot be heard to contend that he would be put to any hardship by evicting him from the petition schedule shop 12 R.C.Rev.No.254 of 2019 room. Therefore, this is a case where the hardship to the tenant in the event of eviction would never outweigh the advantage of the respondent. In the circumstances, we hold that there is no illegality, irregularity or impropriety in the findings of the Appellate Authority that the petitioner is liable to be evicted under Section 11(8) of the Act. 18. In view of what is stated above, this revision can only fail and therefore we dismiss it and the petitioner-tenant is directed to hand over vacant possession of the petition schedule shop room to the respondent-landlord within one month from today. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr