Salim v. Lino

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RCRev..No. 69 of 2010() ----------------------RCA.4/2009 of ADDL. DISTRICT COURT, N.PARAVUR RCP.4/2008 of RENT CONTROL COURT, N.PARAVUR .................... REVISION PETITIONER/RESPONDENT/APPELLANT ------------------------------------------------------- SALIM, AGED 47 YEARS, S/O.RAJAPPAN, MASAMPADANNAYIL HOUSE, PARAVOOTHARA KARA, PARAVUR VILLAGE, PARAVUR TALUK. BY ADV. MR. S.SHYAM RESPONDENT(S)/PETITIONER/RESPONDENT ------------------------------------------------- LINO, AGED 33, S/O.DASAN, MANIPARAMBU HOUSE, KAITHARAM KARA, KOTTUVALLY VILLAGE, PARAVUR TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------** ## **R.C.R.No.69 of 2010** ## **----------------------------------** Dated this the 2[nd] day of March, 2010 ## **O R D E R --------------** ## Abdul Rehim,J. Tenant of the petition schedule building is in revision against concurrent findings of eviction ordered under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Act). The Rent Control Petition is filed with the averments that the petition schedule room is one among the four rooms situated in a building wherein the landlord is conducting business in one of the rooms dealing with sales and service of electronic weighing machines. The room occupied by the landlord is situated adjacent to the petition schedule room wherein the tenant is conducting business in soda manufacturing. The four rooms were constructed at two stretches and there is a gap in between the petition schedule room and the room occupied by the landlord. But the space in between is closed by the landlord by putting shutter and he is using the said space for storing articles. The room wherein the landlord is **RCR.69/2010** **2** conducting business is not sufficient for his requirements of displaying articles, stocking and repair works and the constrain for space is prejudicially affecting his business. Therefore the landlord need the petition schedule building which is occupied by the tenant situated adjacent to his room which forms part of the very same building for additional accommodation of business conducted by him. It was also contended that the tenant has got other income and that many other vacant buildings are available in the locality for shifting of his business. 2. The tenant resisted the Rent Control Petition on the ground that the need projected is not genuine and bonafide. It is contended that there are 5 rooms in the building and one among such rooms is kept closed and the landlord is using the same for storing goods. It is further contended that the lack of space pleaded by the landlord is not correct and the attempt is to evict the tenant only for the purpose of letting out the schedule room for higher rent. It is also contended that the income derived from the business conducted by the tenant is his sole means of livelihood and that no suitable rooms are available in the locality for occupation of the tenant, in case he being evicted from the **RCR.69/2010** **3** schedule building. 3. Evidence before the Rent Control Court consisted of oral testimonies of PW1, the landlord, and PW2, the Advocate Commissioner. Respondent had adduced oral evidence as RW1. Witnesses RW2 to 4 were examined on his behalf. Exts.A1 to A12 were marked on behalf of the landlord and B1 to B23 were marked on behalf of the tenant. Eventhough eviction was sought also on the ground of arrears of rent under Section 11(2)(b), the Rent Control Court had dismissed the claim and the landlord has not filed any appeal against such findings. 4. On an elaborate consideration of the evidence on record, the learned Rent Control Court found that the need for additional accommodation projected by the landlord is genuine and bonafide. It is found that there is no oblique motive on the pat of the landlord who is raising such a need. Based on the commission report and other evidences it is found that the landlord is lacking space for his business and that if he gets vacant possession of the schedule building, the same can be utilised for expanding his business and conduct the same in a more viable and profitable manner. The Rent Control Court had discarded the contentions of the tenant **RCR.69/2010** **4** that there is another room in the possession of the landlord which is kept closed for storing articles. It is found that the alleged room is only the space in between the room occupied by the landlord and the petition schedule building, which is closed by putting shutters and it is in the custody of the landlord wherein articles are stored. Contention of the tenant that both the buildings are separate and there is a gap in between and therefore eviction could not be ordered under Section 11(8), was discarded holding that the two rooms are lying nearby and form part of the same building. 5. With respect to comparative hardships the learned Rent Control Court found that the advantages available to the landlord if the petition schedule room is utilised for additional accommodation will definitely outweigh the disadvantages which will be caused to the tenant. It is specifically found that the tenant had failed in proving through any convincing evidence that the income derived from the business conducted in the schedule building is the sole means of his livelihood. It is further found that there is clear evidence adduced to the effect that there are other buildings available in the locality for shifting of business conducted by the tenant. Therefore eviction was ordered under Section 11(8). **RCR.69/2010** **5** 6. The Rent Control Appellate Authority, on elaborate re-appraisal of the evidence on record, concurred with the findings of the trial court. The main grounds raised in the appeal was that the buildings in question are separate and that there is a gap in between, and therefore Section 11(8) could not be invoked. But it was not accepted by the learned Appellate Authority based on the factual situation. Relying on the legal precedents of this court on the aspect of comparative hardships as well as relying on the evidence adduced to prove genuineness and bonafides of the need projected, the Appellate Authority had fully concurred with the findings arrived by the Rent Control Court. 7. Heard, Sri.Bobby Mathew Koothattukulam, learned counsel appearing for the revision petitioner/tenant. It is vehemently contended that both the courts went highly erred in considering the need projected under Section 11(8) because the room, wherein the landlord is conducting business, and the petition schedule room are not part of the very same building. It is contended that both the buildings are constructed separately at different time and that there is a gap in between the two buildings. On a perusal of the Judgments of the courts below, it is clear that evidence had **RCR.69/2010** **6** been let in to the effect that there is a gap situated in between the two rooms. But it has come out in evidence that the gap was fitted with the shutter and the space in between is being used by the landlord as storage area. It has also come out in evidence that both the rooms can be joined together in an easy manner utilising the gap in between as part of the room. Therefore the said contention has no merits. As pointed out by the Appellate Authority, the tenant himself had conceded in his oral testimony that the gap in between the two rooms had already been closed and the northern wall of the petition schedule building is the southern wall of the gap portion. Referring to the decision of this court in **John v. Manuel** reported in **(2004 (3) KLT 318)** the Appellate Authority found that it could not be contended that eviction under Section 11(8) is not maintainable since both the rooms are not part of the same building. In the above said decision, it is held that it is not necessary that the room should be adjacent, but the test is whether tenanted building forms part of the same building though separated by a few shop rooms. If all the rooms including the rooms occupied by the tenant and the landlord form part of a single building, though separated by two or three rooms, it would not lose its **RCR.69/2010** **7** oneness and therefore Section 11(8) will be attracted. In the case at hand even if it is accepted that two portions are constructed at different times fact remains that both the tenanted premises and the portion occupied by the landlord are situated adjacent with a small gap which is already in the possession of the landlord, enclosed with shutter. Therefore it could not be contended that Section 11(8) will not be attracted. 8. Yet another contention raised by learned counsel for the revision petitioner is that, the landlord along with his mother had filed a suit for eviction against the tenant on an earlier occasion as O.S.455/06 before the Munsiff Court, Paravoor, and that in that suit the landlord as well as mother had given an undertaking before the court that they will not evict the tenant forcibly and therefore the present Rent Control Petition is not maintainable. We are not in a position to accept such contention because the bonafides of the need projected in the present Rent Control Petition is in no manner contradictory to the undertaking made while closing the suit. 9. With respect to the aspect of comparative hardships the Appellate Authority had categorically found that if the landlord obtains vacant possession of the schedule **RCR.69/2010** **8** room, he can make use of the same for additional space for conducting his business in a better and profitable manner by stocking more goods and by utilising more space for exhibiting articles and for accommodating customers. It is found that the tenant had failed in proving that there is lack of availability of alternate accommodation as well as in proving that the income derived from the business conducted in the premises is his sole means of livelihood. Therefore we are not impressed upon by the arguments advanced on the aspect of comparative hardships. 10. The Rent Control Appellate Authority is the final fact finding authority as per the scheme of the statute. We do not find any error in appreciation of the evidence, in arriving the factual findings. No serious misappreciation or non appreciation of any material evidence has been brought to our notice. In the attenuated jurisdiction under Section 20 of the Act, we are not supposed to re-examine the entire evidence to re-evaluate the findings on facts. No legal infirmity, irregularity or impropriety has been brought to our notice, which warrants interference with the findings arrived by the courts below. Therefore we are of the considered opinion that the revision petition deserves no merit and the same is **RCR.69/2010** **9** liable to be dismissed. 11. However, Sri.Boby Mathew Koothattukulam, learned counsel appearing for the revision petitioner, sought indulgence of this court in granting one year's time for vacating the tenanted premises, on the ground that the business being conducted in the schedule building is the main source of livelihood of the tenant and that abrupt closure of the business will put him and his family members into acute difficulties, and he wants time to find out suitable alternate accommodation. 12. Having considered facts and circumstances of the case, we are of the opinion that the tenant can be permitted to surrender the schedule premises on or before 31/10/2010, subject to certain conditions. 13. In the result the revision petition is disposed of on the following terms:- (i). While dismissing the Revision Petition, the revision petitioner/tenant is granted time till 31/10/2010 to hand over vacant and peaceful possession of the schedule premises to the respondent/landlord, on condition that the revision petitioner files an affidavit before the Execution Court or the Rent Control Court as the case may be, undertaking to **RCR.69/2010** **10** surrender peaceful possession of the schedule premises to the landlord on or before 31/10/2010 and also undertaking to pay arrears of rent if any due, within a period of one month from today. The revision petitioner shall also undertake to continue payment of occupational charges at the rate of the monthly rent prevailing, till surrender of the schedule premises. (ii). The affidavit as directed above shall be filed within a period of one month from today. (iii). The Execution Court shall not order delivery of possession of the schedule room till 1/11/2010, once filing of the affidavit and payment of arrears of rent and occupational charges, as directed above is noticed. ## **PIUS C.KURIAKOSE, JUDGE.** ## **C.K.ABDUL REHIM, JUDGE.** okb