Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 27TH DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 RCREV. NO. 8 OF 2020 [AGAINST THE JUDGMENT DTD.24.10.2019 IN RCA NO.18 OF 2018 OF ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY, NORTH PARAVUR AND ORDER DTD.20.03.2018 IN RCP NO.21 OF 2009 OF RENT CONTROL COURT, ALUVA] REVISION PETITIONER/RESPONDENT/PETITIONER: SOORAJ, AGED 49 YEARS, S/O. KOLLARA RAMKRISHNAN, RESIDING AT ANITHA BHAVAN, KARIKAMURI CROSS ROAD, KARITHALA DESOM, ERNAKULAM. BY ADVS. S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.V.A.JOHNSON SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S. SRI.AJAY BEN JOSE RESPONDENT/APPELLANT/RESPONDENT: LIXON, AGED 50 YEARS, S/O. THOMAS, MELETH STORES, AMC NO. VII/771, OPP. RAILWAY STATION, ALUVA 683 101. BY ADV SRI.JAISON JOSEPH :-2-: THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :-3-:
ORDER
Shoba Annamma Eapen, J.
The landlord in R.C.P.No.21 of 2009 before the Rent Control Court, Aluva is the petitioner in this revision. The sole respondent is the tenant. The Rent Control Petition was filed seeking eviction of the tenant from the petition schedule shop room under Section 11(2)(b) & 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
2. The rent control petition was allowed, directing the
tenant, the respondent herein, to vacate the petition schedule shop room within a period of two months from the date of that order. The tenant preferred appeal as R.C.A.No.18 of 2018 before the Rent Control Appellate Authority (Additional District Judge), North Paravur under Section 18(1)(b) of the Act. The Appellate Authority allowed the appeal and remanded
the matter to the Rent Controller to pass orders specifying the provision in which the order of eviction was passed. The said order was challenged by the landlord before this Court in RCR No.337 of 2019 and this court by order dated 03.09.2019 allowed the revision petition and directed the appellate :-4-:
authority to dispose of the appeal on merits. By Judgment
dated 24.10.2019, the appellate authority allowed the appeal in part by setting aside the order of eviction under S.11(8) and confirmed the order of eviction granted under S.11(2)(b) of the Act. Feeling aggrieved thereof, the petitioner/landlord has preferred this Rent Control Revision under Section 20 of the Act.
3. The petition for eviction was filed on the ground
that the landlord was in bona fide need of the entire building for the expansion of his restaurant 'Alankar Restaurant'. The tenant took the petition schedule building bearing No.VII/771 from the predecessor-in-interest and was conducting lottery business. The petition schedule building is a part of line building bearing door Nos.VII/772, VII/775, VII/776,VII/777 and VII/778 of the Aluva Municiplaity. In the building bearing No.VII/778, the landlord is conducting a chinese restaurant named 'Alankar Restaurant'. The rent due also fell in arrears. and hence the landlord filed the rent control petition on the two grounds.
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4. The respondent-tenant resisted the application by
filing a counter statement. He contended that he was unaware of the transfer of ownership till he received the lawyer's notice. The landlord is not conducting the 'Alankar Restaurant' and he is not in ownership of the building bearing nos.VII/776, VII/777 and VII/778. He also contended that there is no arrears of rent.
5. The Rent Control Court recorded oral evidence of PW1 and RW1. Exts.A1 to A11, B1 and B2 and C1 were
marked. The Rent Control Court upon considering the evidence found that the need of additional accommodation projected by the landlord is genuine and also found that the rent was in arrears.
6. The Appellate Authority differed from the findings
of the Rent Control Court on the point of requirement of additional accommodation of the landlord, on the ground that the title in respect of the adjacent rooms was not proved and that there was no convincing evidence to prove that the landlord is in possession of the other portion of the building. :-6-: It was also found that there was no evidence to prove that the landlord is the person who is running 'Alankar Restaurant'. The appellate authority allowed the appeal in part by setting aside the order of eviction under S.11(8) and confirmed the
order of eviction granted under S.11(2)(b) of the Act.
7. Aggrieved by the Judgment of the Appellate Authority, this revision petition is filed by the landlord.
8. Heard Sri.S.Sreekumar, the learned Senior Counsel, instructed by Sri.P.Martin Jose, the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent Sri.R.Jaison Joseph.
9. The learned counsel appearing for the petitioner
would contend that the findings of the Appellate Authority with respect to the points referred to above are wrong. The learned counsel submits that the need for additional accommodation of the landlord is genuine and that is sufficient under Section 11(8) of the Act. What requires is only that the court should satisfy itself about the bona fides of the need for additional accommodation before making an order of eviction. It was :-7-: further submitted that the findings of the appellate authority that title in respect of the adjacent rooms was not proved and that there was no convincing evidence to prove that the landlord is in possession of the other portion of the building and further that there was no evidence to prove that the landlord is the person who is running 'Alankar Restuarant' are not correct. The petitioner filed RCP Nos.9, 10, 11 of 2007 for eviction of tenants from Room Nos. VII/775, 776 and 777 on the ground of S.11(2)
(b) & 11(8) of the Act and in all the RCP's, the landlord got
vacant possession of the rooms and have expanded the restaurant business. The learned counsel further submitted that RCP No.20 of 2009 was filed to evict the tenant, who occupied Room No.VII/772 and the tenant therein Sauda Beevi after several round of litigation has surrendered vacant possession of the room. The only room now left is Room No.VII/771 occupied by the tenant herein.
10. The learned counsel for the respondent-tenant submitted that the petition schedule building is only 75 sq.ft and he is looking after the family consisting of two children :-8-:
and wife, who is a home maker. Further submitted that there are no suitable rooms in the locality to carry out his business and he is depending for his livelihood mainly on the income derived from the business carried in the petition scheduled building. The learned counsel for the respondent further submitted that the revision petitioner is not conducting any business in the 'Alankar Restaurant' and has demolished the building named 'Alankar Restaurant' and the adjoining rooms were already evicted. However, the learned counsel for the respondent- tenant has admitted the eviction of the other tenants from room Nos.VII/772, 775, 776 & 777.
11. It will be appropriate to refer to sub-s. (8) of S.11 of the Act, which reads as under:
'11(8) A landlord, who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.' A plain reading of the provision, extracted above, shows that the requirements of sub-section (8) of Section 11 under which :-9-: the claim is made by the landlord are: (i) a landlord is occupying only a part of the building; (ii) the tenant is occupying the whole or any portion of the remaining part of
the building; and (iii) the landlord requires additional accommodation for his personal use. There is no controversy in regard to compliance of requirements of (i) and (ii) of sub- section (8) noted above. As regards requirement (iii), the landlord has to show that he bona fide requires additional accommodation for his personal use.
12. Here, the landlord got vacant possession of all
the other rooms in the line building except the room occupied by the tenant and it has been established that hardship will be caused to the landlord, if the eviction is not implemented. The landlord requires the petition schedule building for his personal use.
13. In Davis v. Sebastian (1999 (6) SCC 604), it was held as follows:-
“it is a well settled principle of interpretation that words in a statute shall be given their natural, ordinary meaning; nothing should be added to them nor should any word be treated as otiose. Two comprehensive expressions 'additional :-10-: accommodation' and 'personal use' are employed in sub-s.(8). The expression 'additional accommodation' takes in both residential as well as non residential buildings. 'Personal use' is also an expression of wide amplitude. There is nothing in the sub-section which restricts the import of that expression. The said requirement of sub-s. (8) will be complied with on the satisfaction of the Controller about bona fide need of the additional accommodation for personal use of the landlord. To what use the additional accommodation should be put, is the choice of the landlord. In the case of a non residential building whether a new business should be set up in the additional accommodation or whether it should be used for expansion of the existing business, is left entirely to the option of the landlord. This being the intendment of the legislature, the Court cannot impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant is sought”.
14. Sub-section (8) of S.11 of the Act enabled a
landlord to claim additional accommodation for his bona fide personal use. In the present case, the requirement of the landlord for additional accommodation is categorically stated as, for expansion of his business. The appellate authority failed to appreciate the fact that the requirement of the landlord was genuine. The tenant has not denied the vacant possession of the other rooms except the petition schedule
building, in the line building to the landlord. In every case of :-11-: eviction, there will certainly be difficulty for the tenant. The tenant has failed to prove that the hardship caused to him will far outweigh the advantage that will accrue to the landlord by an order of eviction. It is obvious, that if eviction is denied, it will cause greater hardship to the landlord.
15. Hence, we reverse the finding of the appellate authority dismissing the eviction under Section 11(8) of the Act. The petitioner is therefore entitled to get an order of eviction under Section 11(8) of the Act. This revision petition is allowed.
16. Taking note of the request made by the
learned counsel for the respondent-tenant to grant sufficient time for vacating the premises, we grant time up to 31.03.2023 to surrender vacant possession of the petition schedule shop room, subject to the following conditions:
1. The tenant shall file an undertaking before the
Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of certified copy of this order, that he will vacate the shop room, on or :-12-: before 31.03.2023.
2. The respondent-tenant shall deposit the entire
arrears as on date, if any, before the Rent Control Court or the execution court, as the case may be, within four weeks from the date of receipt of certified copy of this order and shall continue to pay the rent till 31.03.2023, without any default.
3. Needless to say, in the event of the
respondent-tenant failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.
sd/- A.MUHAMED MUSTAQUE, JUDGE sd/- SHOBA ANNAMMA EAPEN, JUDGE MBS/