IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE1T DAY OF JULY201410TH ASHADHA, 1936 RCRev..No. 378 of 2011 AGAINST THE JUDGMENT
IN RCA.NO.109/2008 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY/III ADDL.DISTRICT COURT. KOZHIKODE DATED2206-2011 AGAINST THE ORDER
IN RCP NO.68/2007 ON THE FILE OF THE RENT CONTROL COURT/I ADDL.MUNSIFF'S COURT,KOZHIKODE. REVISION PETITIONERS/APPELLANTS/PETITIONERS:
1. JANAKI BALAKRISHNAN, W/O.LATE BALAKRISHNAN, RESIDING IN SREEKRISHNAPURAM ATHANIKKAL, P.O.WEST HILL, KOZHIKODE-673 005.
2. BIJU LAL, S/O.LATE BALAKRISHNAN, RESIDING IN SREEKRISHNAPURAM ATHANIKKAL, P.O.WEST HILL, KOZHIKODE-673 005.
3. BINU LAL, S/O.LATE BALAKRISHNAN, RESIDING IN SREEKRISHNAPURAM ATHANIKKAL, P.O.WEST HILL, KOZHIKODE-673 005. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT/RESPONDENT/RESPONDENT: I.K.THRIPU, S/O.K.NATESHAN, IYYATH KANDI HOUSE, KATCHERI AMSOM & DESOM, KOZHIKODE DISTRICT - 673 502. BY ADV. SRI.V.T.RAGHUNATH BY ADV. SMT.C.V.RAJALAKSHMI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON0107.2014, ALONG WITH R.C.R.NO.412 OF2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.
---------------------------------------------------- R.C.R. NOS.378 & 412 OF2011---------------------------------------------------- Dated this the 1st day of July, 2014 ORDER
Muhamed Mustaque, J.
These Rent Control Revisions are filed by the landlords aggrieved by the dismissal of the petition for eviction filed under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act').
2. The landlords approached the Rent Control Court alleging that they are in occupation of the upstair portion of the tenanted premises, in which, they are conducting business in sanitary wares, electrical goods and plumbing materials and also conducting a tailoring unit. It is pleaded in the Rent Control Petition that the second petitioner is unemployed and he wants to start a business in making bend pipes and in the sale of the same. The requirement espoused in the Rent Control Petition is specifically under Section 11 (8) of the Act. This is because the landlords had approached the Rent Control Court earlier, seeking for eviction of the tenant under R.C.R. NOS.378 & 412 OF2011::
2. :: Section 11(3) of the Act. The above proceedings attained finality in R.C.R.Nos.340 and 341 of 2005 before this Court. In the above Rent Control Revisions, this Court found that the prayer for eviction under Section 11(3) is not maintainable, based on the pleadings and evidence. This Court took the view that the requirement projected is to have an additional accommodation in view of the fact that the landlords are already in occupation of a part of the building. The claim under Section 11(3) of the Act was thus rejected in view of the fact that the pleadings and evidence would indicate that only a claim under Section 11(8) of the Act would be maintainable. The landlords in the above proceedings sought for a remand order to carry out amendment in the pleadings so as to substantiate their claim under Section 11(8) of the Act. However, this Court declined their request as it would cause prejudice to the parties. Thereafter, the landlords filed the present Rent Control Petition with the averments as above.
3. The Rent Control Court found that the landlords are not conducting any business as alleged in the Rent Control Petition. The Rent Control Court also found that there are contradictions in the pleadings as well as in the evidence. The Rent Control Court R.C.R. NOS.378 & 412 OF2011::
3. :: also noted the admission made by PW1 that entry to upstair is blocked by keeping tyres which would indicate that the upstair portion is not being used by the landlords for doing any business. It is also to be noted that the landlords have not produced any document to show that any business is being conducted by them in the upstair portion. It is also revealed from Ext.C1 Commission report that in the upstair portion there were only stitching machines and many of them were covered with full of dust. Except three sacks of bend pipes, nothing was there to indicate any signs of business in sanitary wares, electrical goods and plumbing materials as projected in the Rent Control Petition. Therefore, appreciating the pleadings and evidence, the Rent Control Court came to the conclusion that the landlords failed to establish that the need projected is for additional accommodation on account of the occupation of a part of the building. Accordingly, the Rent Control Petition was dismissed.
4. The Rent Control Appellate Authority also appreciated the pleadings and evidence and found that the additional accommodation projected in the Rent Control Petition and also revealed from the evidence are totally different and the landlords R.C.R. NOS.378 & 412 OF2011::
4. :: failed to establish their occupation of the tenanted premises.
5. The courts below also found that the hardship that may be caused to the tenant if eviction is ordered under Section 11(8) may outweigh the hardship that may be caused to the landlords, if the petition is not allowed. It was also found by the courts below that the tenant has no other source of income other than the income derived from the business conducted in the tenanted premises.
6. To claim eviction under Section 11(8) of the Act, the landlords must establish that they are in occupation of a part of the building. The mere legal possession is not sufficient to sustain the claim under Section 11(8) of the Act. The landlords have to establish that they are in actual occupation of a part of the building. The claim for additional accommodation arise only when the landlords establish themselves that they are in occupation of a portion of the building. In this case, the petitioners/landlords have miserably failed to prove before the courts below that they are in occupation of a portion of the building. The landlords having raised a case that they are doing business in sanitary wares, electrical goods and plumbing R.C.R. NOS.378 & 412 OF2011::
5. :: materials in the upstair portion of the building, necessarily they are bound to prove before the courts below that they are doing such a business in the upstair portion of the building. It is to be noted that the tenant had specifically denied the allegation of the landlords that they are in occupation of the upstair portion and they are doing business in the upstair portion of the building. Therefore, we are of the view that the courts below have rightly held that the landlords have not made out a case under Section 11(8) of the Act.
7. Both the courts below having found on facts that the landlords have failed to establish their case under Section 11(8) of the Act, we do not find any reason to interfere with the concurrent findings entered by the courts below. Accordingly, we dismiss the Rent Control Revisions. (K.T.SANKARAN) Judge (A.MUHAMED MUSTAQUE) Judge ahz/