Kerala High CourtKandiyil Nalini vs Kandiyil Nalini on 27 November, 2014Author:P.N.RavindranBench:P.N.RavindranIN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                        PRESENT:

                            THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
                                                               &
                            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

              FRIDAY, THE 4TH DAY OF DECEMBER 2015/13TH AGRAHAYANA, 1937

                                              RCRev..No. 212 of 2015 ()
                                                   --------------------------
 AGAINST THE JUDGMENT IN RCA 27/2013 of RENT CONTROL APPELLATE AUTHORITY,
                                          KOZHIKODE DATED 27-11-2014

  AGAINST THE ORDER IN RCP 48/2008 of RENT CONTROL COURT, KOZHIKODE DATED
                                                        30-11-2012

REVISION PETITIONERS/APPELLANTS/RESPONDENTS-TENANTS 1, 3 & 4:
-----------------------------------------------------------------------------------------------------------

        1. KANDIYIL NALINI, AGED 67 YEARS,
            W/O. LATE GOVINDAN, RESIDING AT KANDIYIL HOUSE,
            MANKAVU POST,VALAYANAD AMSOM AND DESOM,
            KOZHIKODE TALUK.

        2. VALSARAJ, AGED 47 YEARS,
            S/O. NALINI, RESIDING AT KANDIYIL HOUSE, MANKAVU POST,
            VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK.

        3. BEENA, AGED 44 YEARS,
            D/O. NALINI, RESIDING AT KANDIYIL HOUSE, MANKAVU POST,
            VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK.

            BY ADVS.SRI.K.M.JAMALUDHEEN
                          SMT.LATHA PRABHAKARAN
                          SRI.K.K.KRISHNA KUMAR

RESPONDENTS/RESPONDENTS/PETITIONER-LANDLORD & RESPONDENT NO.2 -
TENANT NO.2:
-----------------------------------------------------------------------------------------------------

        1. PAIKKATTUKAVIL SREEDEVI, AGED 57 YEARS,
            D/O. KUTTIKELU, RESIDING AT KOVILODY HOUSE,
            NELLIKODE AMSOM DESOM, NELLIKODE POST,
            KOZHIKODE TALUK AND DISTRICT - 673 016.

        2. VINAYARAJ, AGED 50 YEARS,
            S/O. NALINI, RESIDING AT KANDIYIL HOUSE, MANKAVU POST
            VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK.

            R1 BY ADV. SRI.P.V.KUNHIKRISHNAN
            R2 BY ADV. SMT.S.L.SYLAJA

            THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-12-2015,
            THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
vpv



               P.N.RAVINDRAN & SHAJI P.CHALY, JJ.
              =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                        R.C.R.No.212 of 2015
            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
             Dated this the 4th day of December, 2015

                                 ORDERShaji P.Chaly, J.This revision is filed by the appellant/tenant against the

judgment in R.C.A.No.27 of 2013 of the First Additional Rent Control

Appellate Authority, Kozhikode dated 27.11.2014 which is an offshoot

of R.C.P.No.48 of 2008 of the Additional Rent Control Court,

Kozhikode, whereby the bonafide need put forth by the landlord undersection 11(8)of the Kerala Buildings (Lease and Rent Control) Act,

1965 (hereinafter referred to as "the Act" for short) was upheld by the

rent control court and affirmed by the rent control appellate authority.

The facts for the disposal of the revision petition are as follows:2.    The first respondent applied for an order of eviction of the

petition schedule building undersections 11(8)and11(4)(ii)of the

Act. The petition schedule building belongs to the first respondent.The same was originally let out to one Govindan.              The revision

petitioners are his legal heirs. The petition schedule shop room is a

part of a two storied building having tiled roof. It was found by the

first respondent that the second revision petitioner who is doing

business in the schedule building had installed a door and window afterR.C.R.No.212 of 2015-:2:-demolishing a portion of the rear wall. Thereby the upper portion of

the wall which separates the first floor was seen damaged. The said

activity undertaken by the second revision petitioner has affected the

value and utility of the petition schedule shop room permanently and

materially. Even though the first respondent requested the revision

petitioners to restore the wall, the second revision petitioner has not

cared to do so. Accordingly, the first respondent filed R.C.P.No.13 of

2002 against the revision petitioners, seeking eviction. But, due to

intervention of mediators, the same was withdrawn by signing a joint

statement on the belief that the revision petitioners would take steps

to restore the building to its original position.  Thereafter, revision

petitioners have filed a suit seeking injunction against the first

respondent and her husband setting up false and frivolous contentions.3.    The son of the first respondent by name Rineesh is doing

business in furniture in the room immediately on the northern side of

the petition schedule shop room also dealing in cell phones and re-

charge coupons. The said shop room is not sufficient for his business

purposes and for want of sufficient space, he finds it difficult to carry

on his business. If the separating wall between the petition schedule

shop room and the room now occupied by petitioner's son is removed,

both the rooms can be utilised for the need of the petitioner's son and

therefore the petition schedule building is required for the bonafideR.C.R.No.212 of 2015-:3:-need of the first respondent. It was also contended that the revision

petitioners are only doing a namesake business in the petition

schedule shop room and they have income from other sources as well.

It is also contended that the respondents are not depending upon the

income from the petition schedule shop room for their livelihood. It is

thus seeking eviction undersections 11(8)and11(4)(ii), the rent

control petition was filed.4.     The second respondent in this revision remained exparte.

Revision petitioners 1, 3 and 4 filed joint counter statement refuting

the claims and demands and allegations in the petition. The revision

petitioners have contended that the petition schedule building is a part

of the building aged more than 75 years, revision petitioners have not

effected any alteration to the rear wall of the shop room and has not

fixed any door or window, as alleged. The revision petitioners have

not done anything to affect the value and utility of the building

permanently or materially. The door and the window mentioned by

the first respondent have been there for the past several decades. The

claim of the first respondent that she needs the petition schedule

building to provide additional accommodation for her son is not

bonafide. The second revision petitioner is solely dependent on the

income from the business carried on in the petition schedule building

and there are no other suitable buildings available in the locality. TheR.C.R.No.212 of 2015-:4:-rent control court after evaluating the facts and circumstances and

evidence let in by the parties, ordered eviction undersections 11(3)and11(4)(ii)of the Act.5.   Aggrieved by the said order, the revision petitioners

preferred R.C.A.No.112 of 2010 before the Additional Rent Control

Appellate Authority-II, Kozhikode.     The appellate authority as per

order dated 08.12.2011 allowed that appeal and the order passed by

the rent control court ordering eviction undersections 11(3)and11(4)(ii) of the Act was set aside and the case was remanded back to the

rent control court for considering the question whether the

requirement of the first proviso to sub-section (10) ofsection 11of the

Act is satisfied and for passing orders on the basis of the finding so

arrived after giving opportunity to both the parties to adduce evidence

on the limited question of the first proviso tosection 11(10). The

Appellate Authority has done so finding that the claim put forth by the

first respondent is one undersection 11(8)of the Act. It was further

held that the claim put forth by the first respondent for additional

accommodation is bonafide. It was also held that since the trial court

proceeded on the footing that sub-section (3) ofsection 11is

attracted, it has not recorded a finding under the first proviso to sub-

section (10) ofsection 11of the Act. The said order of the appellate

authority has become final.     Therefore, the rent control court wasR.C.R.No.212 of 2015-:5:-concerned with the question of the first proviso to sub-section (10) ofsection 11of the Act alone.6.    After remand, the first respondent did not adduce any

further evidence.     But, RW1 was recalled and further examined.

Exts.B5 to B11 series documents were marked on the side of the

revision petitioners. The commission report were marked as Exts.C1

and C2.7.    After evaluating the evidence afresh, the rent control court

allowed the petition and ordered eviction undersection 11(8)of the

Act. Thus aggrieved, petitioners have preferred R.C.A.No.27 of 2013.

The appellate authority after re-appreciating the evidence and

evaluating the legal circumstances, have found that the order passed

by the rent control court is in accordance with law and therefore

requires no interference. It is thus challenging the said order of the

appellate authority, this revision is preferred.8.    Heard the learned counsel for the petitioners, Sri. K.M.

Jamaludheen and the learned counsel for the first respondent,

Sri.P.V.Kunhikrishnan.9.    The prime contention advanced by the learned counsel for

the petitioners are two-fold: (i) The first respondent has not adduced

any evidence to secure the benefit of the first proviso tosection 11

(10)and therefore the rent control court should not have orderedR.C.R.No.212 of 2015-:6:-eviction of the revision petitioners, and (ii) Exts.B6 to B11 documents

which are extracts from the Kozhikode Municipal Corporation will

establish that the first respondent is having other business in another

building within the Corporation limits and is earning more income and

therefore the first respondent, who is very well off, is not entitled to

get advantage against the second revision petitioner who is eking out

his livelihood from the business carried on in the petition schedule

building.10.   Per contra, the learned counsel for the first respondent

contended that more income augmented by the landlord is not a

ground to non-suit her while considering the question of comparative

hardship provided under the first proviso tosection 11(10)of the Act.

Furthermore, learned counsel contended that there is no prohibition

created under the Act for the landlord carrying on any other business

in some other premises so as to defeat his claim undersection 11(8)of the Act or the same can be considered for the purpose of

comparative hardship.11.   We have considered the rival submissions addressed at the

Bar, and the questions remain to be considered are whether the first

respondent can be non-suited under the first proviso tosection 11(10)for want of adducing evidence after the remand made by the Appellate

Court to find out the comparative hardship and whether the landlordR.C.R.No.212 of 2015-:7:-who has got other business establishments prevent her from securing

the benefit of comparative hardship.        It is true that even if the

bonafides are proved undersection 11(8)of the Act, first proviso tosection 11(10)of the Act creates a prohibition from ordering eviction if

the hardship which may be caused to the tenant by granting it will

outweigh the advantage to the landlord.12.  So far as the first point is concerned, the rent control court

as well as the appellate authority have found that there is sufficient

evidence to prove that the first respondent's son is carrying on

business in the petition schedule building. Moreover, from the totality

of evidence, it was found that first respondent's son is carrying on

business in various articles and relying on the Commissioner's report it

was also found that he is also carrying on business of bricks from the

building. It was also found by the rent control court that if vacant

possession of the petition schedule building is received by the first

respondent, the business can be carried on in the building more

efficiently. The first respondent's son was examined as PW2 and he

has deposed before the court the nature and volume of business

presently he is carrying on in the petition schedule building. The said

evidence shows that he is carrying on the business of steel furniture,

wooden chairs, T.V. stand and bricks. The said evidence let in by the

first respondent landlord was supported by the report of the AdvocateR.C.R.No.212 of 2015-:8:-Commissioner.     Moreover, the trial court has found that PW2 was

experiencing in lack of space to run the business. It was also found

that the Commissioner's report exemplified the space constraints of

PW2.13.   So far as the second point is concerned, the rent control

court has found that the business carried on by the landlord in other

buildings will not in any manner affect the bonafides or for securing

advantage as provided under the first proviso tosection 11(10)of the

Act. The trial court while appreciating the evidence let in by the tenant

has found that the alleged annual income of Rs.25,000/- received by

the second revision petitioner cannot be believed at all. The trial court

also found that an income of Rs.2,100/- p.m. is not sufficient enough

for a person to carry on his every day activities considering the cost of

living index in the present society.     Therefore, the trial court has

arrived at a finding that the second respondent is having other sources

of income.     The rent control court also found that there was no

pleading or evidence let in by the second revision petitioner that he is

a poor person and he has difficulties in maintaining himself. It was

also found by the rent control court that there are other suitable

buildings available in the locality for the use and occupation of the

second revision petitioner.     Thus, after appreciating the evidence

tendered by the parties, and evaluating the legal aspects, the rentR.C.R.No.212 of 2015-:9:-control court has entered into a finding that the hardship caused to the

tenant will not outweigh the advantage to the landlord.14.   The Appellate Authority re-appreciated the order of the

rent control court also by relying on the legal principles laid down by

the Apex Court as well as this Court under the first proviso tosection

11(10)of the Act and has found that the order passed by the rent

control court is not warranting any interference.15.   We have appreciated the pleadings and the records

produced in revision and we are of the considered opinion that the rent

control court as well as the appellate authority have appreciated the

rival contentions in accordance with law. Merely because the landlord

has income from other sources, that by itself, is not a ground to

decline the advantage to a landlord in the matter of eviction of the

petition schedule building. Apart from that, augmenting more income

by a landlord is not a negative factor to secure advantage under the

first proviso tosection 11(10)of the Act nor the same will cause any

manner of hardship to the tenant. While considering the question of

comparative hardship, as per well settled proposition of law by this

Court as well as the Apex Court, is to find out, as to whether for

shifting the business the tenant has any hardship.       The trial court

clearly found that there are buildings available in the locality for use

and occupation of the tenant. Moreover, on facts, the income said toR.C.R.No.212 of 2015-:10:-be received by the second revision petitioner was disbelieved and it

was found that the tenant has got sufficient source of income to carry

on his activities, from other sources. It is a well settled proposition of

law under the first proviso tosection 11(10)that both sides should

adduce evidence in order to enable the rent control court to appreciate

the question of comparative hardship.16.   So far as the first respondent-landlord is concerned,

sufficient evidence was let in to show that PW2 who is a dependent of

first respondent is carrying on number of activities in the petition

schedule building which is having only an area of 180 sq. ft. It was

also found that there is dearth of space in the building in which he

carries on business. Therefore, while appreciating the advantage of

the landlord, the rent control court has found that if the petition

schedule building is vacated, the same will satisfy the need of the

landlord which was found to be an outweighing feature to the hardship

of the tenant.     These factual findings were re-appreciated by the

appellate court and has declined interference.17.  This Court is conscious of the powers conferred on it undersection 20of the Act. The law permits interference of a revisional

court in the findings of the trial court as well as the appellate court

only under the three circumstances provided insection 20i.e. when an

illegality or irregularity or impropriety is found in the order orR.C.R.No.212 of 2015-:11:-proceedings. After appreciation of the entire facts and circumstances,

and the records of the trial court and the appellate court made

available, we are of the considered opinion that there are no situation

prevailing in the case warranting our interference by invoking the

revisional powers conferred on us.      Resultantly, revision fails and

accordingly the same is dismissed.18.   As a last submission, learned counsel for the revision

petitioners submitted that one year time may be granted to the

revision petitioners to vacate the premises.    We heard the learned

counsel for the first respondent on this question and after hearing the

parties, we are of the considered opinion that six months time can be

considered, but not without conditions. The second revision petitioner

shall file an affidavit before the execution court, Kozhikode within a

period of three weeks from the date of receipt of a copy of this order,

undertaking to vacate the premises unconditionally on or before

15.06.2016, that arrears of rent, if any, shall be paid within the said

period of three weeks and further that the current rent falling due will

be paid on or before the 5th day of every succeeding month.19.   It is made clear that if any of the conditions laid down

above is violated by the revision petitioners, the first respondent will

be at liberty to pursue the execution pending before the execution

court and in that eventuality, the execution court shall ensure thatR.C.R.No.212 of 2015-:12:-delivery is effected without any delay.Resultantly, revision is dismissed subject to the stipulations

made above.Sd/-P.N.RAVINDRAN
                                                    JUDGE


                                                  Sd/-SHAJI P. CHALY
                                                    JUDGE

                                                        /TRUE COPY/


                                                       P.A. TO JUDGE

vpvR.C.R.No.212 of 2015-:13:-