Kerala High Court
Manakkalath Janaki Amma (Died) vs Jayadeep.V.K on 11 January, 2013
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 12TH DAY OF AUGUST 2016/21ST SRAVANA,1938
RCRev..No. 247 of 2016 ()
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RCP 58/2006 of RENT CONTROL COURT,THALASSERY.
RCA 82/2009 of RENT CONTROLAPPELLATE AUTHORITY, THALASSERY.
REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS:
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1. MANAKKALATH JANAKI AMMA (DIED)
2. P.SAROJINI,
D/O.JANAKI AMMA, AGED 55 YEARS,
NO OCCUPATION, KUYYALIL HOUSE,
MADAPEEDIKA,
P.O.TEMPLE GATE, THALASSERY.
3. P.LAKSHMI,
D/O.JANAKI AMMA, AGED 48 YEARS,
TAILOR, DHANALAKSHMI NIVAS,
PANOORAMSOM, DESOM, P.O.PANOOR.
4. C.H. CHANDRAN,
S/O.JANAKI AMMA, AGED 45 YEARS,
BUSINESS, DHANALAKSHMI NIVAS,
PANOORAMSOM, DESOM P.O.PANOOR
SUPPL. APPELLATNS 2 TO 4 ARE LEGAL HEIRS
OF DECEASED APPELLANT NO.1 IMPLEADED AS PER ORDER
IN I.A 852/2012 AND AMENDED AS PER ORDER IN
IA.853/2012 DATED 11/1/2013.
BYADVS.SRI.T.REMESH BABU
SRI.C.K.SREEJITH
RESPONDENT(S)/RESPONDENT/PETITIONER:
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JAYADEEP.V.K,
S/O.ANANDAN, AGED 39 YEARS,
SOBHA STORE, P.O.PANOOR, THALASSERY TALUK
670 692.
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 12-08-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K. SURENDRA MOHAN & MARY JOSEPH, JJ.
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Dated-this the 12-th day of August, 2016.
-R.C.R. -No.-247-of-2016- - -
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ORDER
Surendra Mohan, J.
The tenants, who are the legal representatives of the original tenant, are in revision challenging an order of eviction granted by the Rent Control Court, Thalasserry in R.C.P. No. 58 of 2006 and confirmed by the Rent Control Appellate Authority, Thalasserry in R.C.A. No. 82 of 2009. The respondent is the landlord. For the sake of convenience, the parties are referred to as landlord and tenants.
2. The landlord had filed the Rent Control Petition seeking an order of eviction against the tenant alleging grounds under Sections 11(2)(b) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). According to the landlord, the portion of the building that is occupied by the tenants was R.C.R.247/2016.
2purchased by the landlord in the year 2005. Thereafter, the landlord is in occupation of the down stair portion from where he is conducting a stationery business in the name and style 'Sobha Store'. According to him, his business has been flourishing and presently, he is in need of additional space for the conduct of his business. In order to satisfy the requirement for additional space, he sought eviction of the tenant from the upstair portion of the building. It was alleged that the tenant had other properties and other sources of income. The rent was also alleged to be in arrears.
3. The tenants contested the need that was put forward. The original tenant was the mother of the revision petitioners, who expired during the pendency of the appeal. Thereafter, her legal representatives have been impleaded, who are the revision petitioners. According to the original tenant, after the building was purchased by the landlord, the rent was paid to him through money order. However, he had refused to receive the same. She was ready to pay the rent. R.C.R.247/2016.
3Accordingly, the rent was paid and therefore, the said ground was rejected by the Rent Control Court. The landlord does not appear to have pursued the matter thereafter.
4. On the question of additional accommodation, it was contended by the tenant that, the landlord was already in possession of two large sized rooms on the ground floor, the space available was sufficient for the conduct of his business and the allegation that additional space was required was, according to the tenant, without any bona fides. It was further contended that, the tenant was depending for her livelihood on the income from the business carried on in the tenanted premises. Her two children were also assisting her in the conduct of the business. She has no other source of income or work. She owns only 3 = cents of land on which, there is a residential building. She is residing there. It was alleged that, the landlord was a very affluent person and that, he was conducting many other businesses from which he was earning a very comfortable income. The Rent Control Petition, R.C.R.247/2016.
4according to the tenant, was filed without any bona fides.
5. The parties went to trial on the above pleadings. The evidence in the case consists of Exts. A1 to A47 series documents on the side of the landlord and his oral evidence as PW1. The tenant produced and marked Exts.B1 to B4 documents and examined herself as RW1. Ext.C1 Commission Report, Ext.C2 plan and Ext.C3 revised Commission Report were marked as court exhibits.
6. The Rent Control Court considered the contentions of the respective parties in the light of the evidence on record and found that, the landlord was entitled to an order of eviction under Section 11(8) of the Act. As already noticed above, the eviction sought under Section11(2)
(b) of the Act was disallowed.
7. The aggrieved tenant carried the matter in appeal. The Rent Control Appellate Authority reappreciated the evidence on record and dismissed R.C.A. No. 82 of 2009 confirming the order of the Rent Control Court. It was during R.C.R.247/2016.
5the pendency of the proceedings before the Appellate Court that the original tenant died. The revision petitioners are her legal heirs.
8. According to the counsel for the tenants, the ground floor portion of the building, that is already in the possession of the landlord, is sufficiently spacious to accommodate the business that is conducted by the landlord, comfortably. Though the report of the Advocate Commissioner reveals that, a lot of articles were crammed into the shop room, giving an impression that the space was insufficient, according to the counsel, the articles were brought and stacked anticipating the visit of the Advocate Commissioner. It is further pointed out by the learned counsel that the nature of the articles found stocked were hardware items and plastic goods, whereas the landlord was actually conducting business in stationery. It is evident, according to the learned counsel, that the articles were brought and stacked there with ulterior motive. The counsel also points R.C.R.247/2016.
6out that, the licence obtained by the landlord from the local authority is only to conduct business in stationery goods and therefore, he had no licence to conduct business in the other items that were found on the premises at the time of Commission inspection. Apart from the above, it is contended that, the question of comparative hardship has not been considered properly by both the authorities below. The tenant is a person who is eking out her livelihood from the business that is carried on in the premises. It is only a small tea shop. If she is compelled to vacate the premises, her means of livelihood would be affected. Therefore, the counsel seeks interference with the judgment of the Appellate Authority in revision.
9. We have considered the contentions advanced before us anxiously. The original tenant is no more and the proceedings are being continued by her legal heirs. It is not in dispute that, the landlord is in occupation of the ground floor portion of the very same building. He is conducting a R.C.R.247/2016.
7stationery business from the ground floor. The Commission Report shows that, various articles are crammed into the space available and that, additional space is a necessity. Both the authorities below have found concurrently on the above aspect. We find no grounds to take a different view of the matter. Though it is contended by the counsel for the tenants that the articles that were available had actually been brought and kept there anticipating the visit of the Advocate Commissioner, there is nothing on record to support the said contention. The fact that the landlord has other businesses of his own and a comfortable income cannot and does not disqualify him from seeking additional accommodation for the conduct of his business that is being conducted by him. The material question to be considered is whether the need put forward is genuine or not.
10. It has been found by the authorities below that, even according to the original tenant who was examined as RW1, there were vacant shop rooms available in the vicinity. R.C.R.247/2016.
8However, the tenant had not enquired whether they would be available to her on rent. The question of comparative hardship has also been considered by both the authorities below. It cannot be disputed that if the eviction is disallowed, the landlord would not be able to conduct his business comfortably. The premises admittedly belongs to the landlord. Since his need for additional accommodation is found to be genuine, there is no justification for denying to him the benefit of his own premises. It may be true that the tenants are depending for their livelihood on the income from the business carried on from the tenanted premises. However, it is open to them to shift their business to a suitable room in the locality itself. They have not explored the possibility of such a shifting going by the evidence of RW1. The fact that they would be compelled to shift their business to some other premises cannot be said to be of more serious hardship, when compared to the need of the landlord for additional accommodation. The landlord would not be able to carry on R.C.R.247/2016.
9his business comfortably and profitably, if his claim is disallowed. Therefore, we do not find that the tenant is entitled to claim any benefit on the ground of comparative hardship also. We do not find any illegality, irregularity or impropriety in the judgment of the Appellate Authority, warranting an interference therewith in revision. The Rent Control Revision is liable to be dismissed.
11. The counsel for the tenants, as a last submission, seeks the grant of some time to surrender vacant possession of the premises. It is submitted that, a reasonable time for searching out a suitable place and for shifting the business may be granted. Having considered the contentions of the counsel, we are satisfied that it is necessary to grant time up to 31.1.2017 to the tenants to surrender vacant possession of the premises to the landlord. But, such time can be granted only subject to conditions.
R.C.R.247/2016.
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In the result, it is ordered as follows:
i) The Rent Control Revision fails and is accordingly dismissed.
ii) The revision petitioners/tenants are granted time up to 31.1.2017 to surrender vacant possession of the tenanted premises to the landlord on condition that they file an affidavit before the Rent Control Court or the Execution Court as the case may be in R.C.P. No. 58 of 2006, within a period of two weeks of the receipt of a copy of this Order, unconditionally undertaking to surrender vacant possession of the premises to the landlord on or before 31.1.2017.
iii) It shall be a further condition for the grant of such time that the tenant pays the arrears of rent in respect of the premises, if any remaining unpaid, and continues to pay the rent thereof, without any delay or default until vacant possession is surrendered.
R.C.R.247/2016.
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iv) It is made clear that in the event of the tenants committing default in complying with any of the conditions, they shall forfeit the benefit of the above direction.
K. SURENDRA MOHAN JUDGE MARY JOSEPH JUDGE sb