Kerala High Court
M.Arshadha vs M.Salim on 12 August, 2021
Bench: C.T.Ravikumar, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
RCREV. NO. 80 OF 2017
AGAINST THE JUDGMENT DATED 23.11.2016 IN RCA 19/2016 OF III
ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING FROM
THE ORDER DATED 8.2.2016 IN R.C.P.NO.18/2012 OF THE RENT
CONTROL COURT, ATTINGAL)
REVISION PETITIONER/RESPONDENT/PETITIONER:
M.ARSHADA, W/O.M.ABDUL RASHEED, TC 29/659,
SHABEER NIVAS, SEEVELI NAGAR, KAITHAMUKKU,
PETTAH P.O., THIRUVANANTHAPURAM-695024
BY ADVS.SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SRI.A.L.NAVANEETH KRISHNAN
SMT.A.A.SHIBI
RESPONDENT/APPELLANT/RESPONDENT:
M.SALIM, S/O.MEERANASAN, POOMANGALATHU VEEDU,
PARAYATHUKONAM, KEEZHUVILAM P.O.,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695104.
BY ADVS.SRI.PHILIP J.VETTICKATTU
SRI.VINEETH KURIAKOSE
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 28.7.2021, ALONG WITH RCRev.No269/2017, THE COURT ON
12.08.2021 PASSED THE FOLLOWING:
RC.Rev.NoS.80 & 269 of 2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
RCREV. NO. 269 OF 2017
AGAINST THE JUDGMENT DATED 6.4.2017 IN RCA 26/2016 OF III
ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING FROM
THE ORDER DATED 8.2.2016 IN R.C.P.NO.19/2012 OF THE RENT
CONTROL COURT, ATTINGAL
REVISION PETITIONER/RESPONDENT/PETITIONER:
M.ARSHADA, W/O.M.ABDUL RASHEED, TC 29/659,
SHABEER BIVAS, SEEVELI NAGAR, KAITHAMUKKU,
PEETTAH P.O., THIRUVANANTHAPURAM - 695024.
BY ADVS.SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SRI.A.L.NAVANEETH KRISHNAN
RESPONDENT/APPELLANT/RESPONDENT:
A.SREEKUMAR, S/O.APPUKUTTAN PILLAI, VILAYIL VEEDU,
KUZHIMUKKU, ATTINGAL P.O. CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM - 695101.
BY ADV SRI.D.KISHORE
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 28.07.2021,ALONG WITH RCRev..80/2017, THE COURT ON
12.08.2021, PASSED THE FOLLOWING:
RC.Rev.NoS.80 & 269 of 2017 3
ORDER
Ravikumar, J.
The captioned Revision Petitions are filed by one and the same person who is the landlady of the shop rooms in question let out to the respondents.
2. Applications under Section 11(8) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short 'the Act') are filed by the revision petitioner herein. In the rent control petitions filed seeking eviction of the respective respondents it is averred by the revision petitioner that the shop rooms in occupation by the respondents herein are also required for running business in software consultancy and service centre that includes internet cafe, game zone, DTP, photocopy, spiral binding, computer sales and service, hardware and software training centre and software consultancy centre. It is also stated therein that the entire building in question is required for housing the said project. The said Rent Control Petitions were separately tried by the Rent Control Court. In R.C.P.No.18 of 2012, on the side of the revision petitioner herein Messrs. M.Abdul Rasheed, Shahim, Hari.C. and Suneer Shaw were respectively examined as PWs.1 to 4 and Exts.A1 to A15 were got marked. On the side of the respondent RC.Rev.NoS.80 & 269 of 2017 4 Messrs. Salim, Venugopal, Asokan and Smt. P.Syamala were examined respectively as DW1, DW3, DW4 and DW2 and Exts.B1 to B14 were got marked. Ext.C1 is the Commission Report. In R.C.P.No.19/2012 besides examining the witnesses examined in R.C.P.No.18/2012, not exactly in the same order, Exts.A1 to A9 were got marked. On the side of the respondents therein Messrs.Sreekumar and Jayachandran were examined as DW1 and DW2 and Exts.B1 series were got marked. Exts.C1 and C2 are the Commission Reports dated 29.8.2013 and 10.12.2014 respectively. After appreciating the evidence on record and the rival contentions the Rent Control Court, Attingal passed seperate orders, dated 8.2.2016, in both the petitions. Aggrieved by the said orders the respondents therein/respondents herein preferred appeals. R.C.A.No.19 of 2016 was filed against the order in R.C.P.No.18 of 2012 and R.C.A.No.26 of 2016 was filed against the order in R.C.P.No.19 of 2012. By separate orders the Additional Rent Control Appellate Authority-III, Thiruvananthapuram reversed the orders passed by the Rent Control Court, Attingal in R.C.P.Nos.18 and 19, of 2012. It is challenging the order in R.C.A.No.19 of 2016 of the appellate authority that the former revision petition has been filed and the latter revision petition is filed against the order in R.C.A.No.26 of 2016. Since common issues and questions of law arise for consideration in both the revision RC.Rev.NoS.80 & 269 of 2017 5 petitions on the request of the learned Counsel on both sides they were heard jointly and are being disposed of by this common order.
3. We have heard the learned counsel appearing for the revision petitioner and also the learned counsel appearing for the respective respondents, in the revision petitions.
4. The learned counsel appearing for the revision petitioner submitted that there was absolutely no reason or justification for the appellate authority to upturn the findings and conclusions of the Rent Control Court in R.C.P.Nos.18 and 19 of 2012. It is submitted that a bare scanning of the orders passed by the Rent Control Court would reveal that both the oral and the documentary evidence adduced in the rent control petitions were meticulously analysed by the Rent Control Court to arrive at conclusions as to the requirement for additional accommodation under Section 11(8) of the Act and the comparative hardships in terms of the first proviso to Section 11(10) of the Act, in favour of the revision petitioner. Per contra, the learned counsel appearing for the respondents in the revision petitions would submit that the Appellate Authority has rightly reversed the findings of the Rent Control Court as its appreciation of evidence was perverse and as held by the Appellate Authority, the rent Control Court had failed to consider lack of necessary pleadings in the rent control petitions filed RC.Rev.NoS.80 & 269 of 2017 6 seeking eviction under section 11(8) of the Act.
5. In an application under Section 11(8) of the Act the first condition to be satisfied is that the landlord and the tenant concerned have occupation of space in the building under the same roof. In the cases on hand the same persons were examined as witnesses for the revision petitioner and the Rent Control Court relied on the evidence of PW1 who is none other than the husband of the revision petitioner PW2, the Advocate Commissioner, the evidence of Suneer Shaw who was examined as PW.4 in R.C.P.No.18 of 2012, PW.3 in R.C.P.No.19 of 2012 and also the evidence of Hari.C. (who was examined as PW.3 in R.C.P.No.18 of 2012 and PW.4 in R.C.P.No.19 of 2012) along with the other evidence including the Commission Reports to conclude that the revision petitioner is in occupation of a room under the same roof where the rooms in occupation by the respondents in the revision petitions situate. After arriving at such a finding the Rent Control Court went on to consider the question whether there is bonafides in the claim of the revision petitioner for additional accommodation. The Rent Control Court held that the bonafides of the revision petitioner herein to occupy petition schedule rooms as additional accommodation with the remaining portion of the building, to run computer center which includes the other facilities referred hereinbefore, could not be doubted.
RC.Rev.NoS.80 & 269 of 2017 7 In short, it was held that the pleadings and the evidence are sufficient to satisfy that the claim for additional accommodation put forth by the revision petitioner herein and it satisfies the test of bonafides laid down by Section 11(10) of the Act. A perusal of the orders passed by the Rent Control Court would further reveal that after arriving at such a conclusion the court went on to consider the question of comparative hardships of the tenants, the respondents in the revision petitions, in terms of the first proviso to Section 11(10) of the Act. In that regard the Rent Control Court, on evaluation of the evidence on record, arrived at a conclusion that declining order of eviction would definitely disable the petitioner to run business in the entire building in a full fledged manner and at the same time the respondents therein/respondents herein have got in their possession rooms in another nearby building. In other words, it was held that in such circumstances, the respondents in the revision petitions had failed to bring out any circumstance to show that they would not be in a position to shift their business from the rooms in question to the rooms in their possession in other nearby building. Shortly stated the Rent Control Court held that the question of comparative hardships has to be held in favour of the revision petitioner. Such conclusions and findings led to the passing of orders in the R.C.Ps. in favour of the revision petitioner.
RC.Rev.NoS.80 & 269 of 2017 8
6. The contention of the learned counsel for the revision petitioner is that the appellate authority ought not to have interfered with the rightful conclusions arrived at by the Rent Control Court based on the evidence on record. That apart, it is contended that a careful scrutiny of the orders of the appellate authority in R.C.A.No.19 of 2016 would reveal that the appellate authority interfered with the order of the Rent Control Court in R.C.P.No.18 of 2012 holding that there were no sufficient pleadings in the Rent Control Petition to attract the provisions under Section 11(8) of the Act. In R.C.A.No.26 of 2016 the appellate authority arrived at a conclusion that on appreciation of the evidence on record would reveal that the respondent therein/the revision petitioner herein had failed to adduce probable evidence before the Rent Control Court to get eviction under Section 11(8) of the Act. The learned counsel further contended that a scanning of the impugned orders passed by the appellate authority would reveal that the appellate authority was of the view that for seeking eviction under Section 11(8) of the Act the additional accommodation should be for expansion of the existing business. It is submitted that the said view of the appellate authority is in conflict with the enunciation of law in that regard by this Court as also by the Hon'ble Apex Court. The learned counsel would further submit that an application under Section 11(8) of the Act for RC.Rev.NoS.80 & 269 of 2017 9 additional accommodation could be maintained for expansion of the existing business as also for a new business or trade. Further more it is submitted that the appellate authority ought not have found against the petitioner the question of occupancy holding that the revision petitioner herein had failed to establish that she was running a business in the room claimed to be in her occupation to claim eviction of the respondents for the purpose of getting additional accommodation.
7. The learned counsel appearing for the respective respondents in the revision petitions countered the contentions and submitted that the appellate authority had rightly set aside the order dated 8.2.2016 passed by the Rent Control Court in R.C.P.Nos.18 of 2012 and 19 of 2012 on arriving at a rightful conclusion that the revision petitioner had failed to satisfy or establish the necessary ingredients to attract the provisions under Section 11(8) of the Act. It is further submitted that the appellate authority had correctly found that the revision petitioner had failed to establish bonafides in terms of provisions under Section 11(10) of the Act. It is their specific contention that the petitions were initially filed under Section 11(3) of the Act and a perusal of the petitions would reveal that at the time of filing of such petitions the revision petitioner had only an intention to start a business. In other words it is their submission that at the time RC.Rev.NoS.80 & 269 of 2017 10 of filing of the petitions the revision petitioner was not running any business in any room which would form part of the petition schedule building which is the essential ingredient to maintain a petition under Section 11(8) of the Act. That apart, it is contended that no cogent evidence was adduced by the revision petitioner herein to establish that she was in actual occupation of any space in the same petition schedule building from where the respondents are sought to be evicted. According to the learned counsel appearing for the respondents it may be correct to say that the revision petitioner was having possession of a room in the said building but at the same time the expression of 'occupation' is something different and distinct from 'possession' and in other words something more than possession is required to say that one is in occupation with reference to a building. They had also taken up a contention that the evidence on record would reveal that apart from the building allegedly in occupation the revision petitioner got seven rooms in her occupation in the building in question and they are sufficient to house the project of the revision petitioner. It is also contended by them that the question of comparative hardship if properly decided based on the evidence on record the decision of the Rent Control Court ought to have held in their favour. In short, it is the contention that there is absolutely no reason to interfere with the order RC.Rev.NoS.80 & 269 of 2017 11 passed by the appellate authority in R.C.A.Nos.19 of 2016 and 26 of 2016 and therefore the Revision Petitions are liable to be dismissed.
8. Before adverting to the rival contentions in the light of the evidence on record we are of the considered view that certain other legal aspects have to be looked into. The question of law that crops up for consideration in the light of the contextual situation is whether existence of a running business in a room, in a building shared with the tenants by the landlord, claimed to be in occupation of the landlord is required for the purpose of attracting the provisions under Section 11(8) of the Act ?
9. As noticed hereinbefore, according to the learned counsel appearing for the respondents, in order to hold that the landlord is in occupation of such a room or a space in such a building he must be running a business in the said room or space. The question is whether such an ingredient is incorporated in Section 11(8) of the Act. In the said contextual situation it is only worthwhile to extract Section 11(8) of the Act:-
"Sec.11(8) Landlord requiring additional accommodation
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 RC.Rev.NoS.80 & 269 of 2017 12 landlord in possession thereof, if he requires additional accommodation for his personal use."
10. A perusal of the aforesaid provision would reveal that a landlord who is occupying only a part of the building could apply for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put him in possession thereof if he requires additional accommodation for his personal use. Thus, it is evident that what is required under law is occupation of a part of a building which is being shared by the tenants, by the landlord. Needless to say that expression 'occupation' is different from 'possession'. In other words, legal possession by itself would not and could not constitute occupation. 'Possession' must combine with something more to make it 'occupation' (see the decision of a Division Bench of this Court in Simon v. Rappai reported in [2008 (3) KLT 121]). For the purpose of concluding a space or a room occupied by the landlord is part of the same building being shared by tenants the following aspects could be, rather should be, looked into. A Division Bench of this Court in Marzook v. Simon reported in (2012 (2) KLT 276) held that functional integrity of both the portions occupied by the landlord and the portion occupied by the tenant, is the prime factor to decide whether one is part of the building housing the other. The following RC.Rev.NoS.80 & 269 of 2017 13 tests would profitably apply to decide whether the premise is part of the said building for the purpose of Section 11(8) of the Act, going by the said decision:- (1) common title deeds (2) common construction (3) common foundation (4) common roof (5) structural and functional integrity. In the case on hand, on the aforesaid aspects there is absolutely no dispute. Thus, when once it is found that the part of the building occupied by the tenant/tenants and the part of the building owned and possessed by the landlord are part of the same building the question is whether the landlord is in occupation of the same and if so, certainly, it would be open for the landlord to claim for vacation of the room or rooms occupied by the tenant/tenants for additional accommodation subject of course, on satisfaction of the other conditions.
11. Now, we will consider the tenability of the contention raised by the learned counsel appearing for the respondents that in order to hold that the landlord is in occupation of a part of a building he should establish that he is running a business there. Evidently, the foundation for such a contention is a decision of a learned Single Judge of this Court in Shamsudeen v. District Court reported in (1997 (2) KLT 630). But the question is whether the provision can be construed to contain a condition that existence of running business in that part of RC.Rev.NoS.80 & 269 of 2017 14 the building claims to be in the possession of the landlord is also an essential ingredient to be satisfied to establish 'occupation' to attract Section 11(8) of the Act? In that context, it is only appropriate to refer to a decision of the Hon'ble Apex Court in Davis v. Sebastian reported in (1999 (6) SCC 604). In paragraph 8 thereunder the Hon'ble Apex Court held:-
"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 accommodation" and "personal use" are employed in sub-section (8). The expression "additional accommodation" takes in both the 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- section (8) will be complied with on the satisfaction of the Controller about bonafide 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 intent of the legislation, the court cannot impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant is sought."
12. In the light of the said decision and going by the well settled principles of interpretation the words in a statute should be RC.Rev.NoS.80 & 269 of 2017 15 given their natural, ordinary meaning and nothing could be added to them. When the statutory requirement in terms of the provisions of Section 11(8) of the Act is that in order to apply for an order of eviction of a tenant occupying whole or any portion of the remaining part of the building in which the landlord occupies a part he needs only to establish that he is in 'occupation' of a part of the same building and the portion or portions occupied by the tenant or tenants also require as additional accommodation for his personal use. In such circumstances, even while holding that legal possession by itself could not constitute occupation and something more than possession is required to make it occupation we are of the view that saying that it is incumbent on the landlord to establish that he is running a business in the portion claimed to be in his occupation is something which would go beyond the legislative intention. In such circumstances, we are of the considered view that in order to maintain an application under Section 11(8) of the Act the landlord need only to establish that he is in occupation of a part of the building in which the tenant occupies the whole or a part of the remaining portion and that he requires the part or whole of the remaining portion in occupation of that tenant/tenants as additional occupation for his personal use.
RC.Rev.NoS.80 & 269 of 2017 16
13. We have already noted that recitals in the impugned order passed by the appellate authority would suggest that the appellate authority was entertaining a view that the additional accommodation should be for supplementing to the existing requirement of the running business of the landlord. In other words, it should be for expansion of an existing business. The said question is no longer res integra in the light of the decision in Davis case (supra) and also a Full Bench decision of this Court in Moidootty Haji v. Abdul Jaleel reported in [2007 (4) KLT 15 (FB)]. In unambiguous terms the Apex Court held in David's case that in the case of non-residential building use it could be, either for new business or for expansion of existing business. A Full Bench decision of this Court in Moidootty Haji's case held that additional accommodation could be for expansion of existing business or for setting up a new business. In the light of the enunciation of law on the said issue by the Hon'ble Apex Court and a Full Bench of this Court we have no hesitation to hold that the view entertained by the appellate authority, as aforesaid, cannot be sustained.
14. Having identified the true legal position in the aforesaid matter we will now consider the evidence on record. This has become essential as on the same set of evidence the Rent Control Court and the RC.Rev.NoS.80 & 269 of 2017 17 Appellate Court entered into divergent findings. There can be no cavil that merely because the first appellate court is empowered to re- appreciate the evidence when based on the evidence on record a plausible view was taken by the court of first instance it would not be open to the first appellate court to substitute its view to that of the court of first instance on the ground that another view is also possible. Bearing in mind the said position we will consider the question whether the appellate authority was justified in upturning the orders of the Rent Control Court in R.C.P.Nos.18 of 2012 and 19 of 2012. For answering the said question it is essential to deal with the evidence on record. R.C.R.No.80 of 2017
15. As noticed earlier, the above revision arises from the judgment dated 23.11.2016 in R.C.A.No.19/2016 of the Additional Rent Control Appellate Authority-III, Thiruvananthapuram arising from the order dated 8.2.2016 in R.C.P.No.18/2012 of Rent Control Court, Attingal. The Rent Control Court ordered eviction of the respondent herein, the tenant under Section 11(8) of the Act. On the side of the revision petitioner, the landlady PWs 1 to 4 were examined and Exts.A1 to A15 were marked and on the side of the respondent/the tenant DWs 1 to 4 were examined and Exts.B1 to B14 were marked. Ext.C1 is the RC.Rev.NoS.80 & 269 of 2017 18 Commissioner Report dated 29.8.2013. The case of the revision petitioner is that herself and her husband are in need of plaint schedule room for conducting internet caffe and games zones as part of Computer Centre. In the Rent Control Petition the revision petitioner pleaded that she proposes to start computer centre that provides services like internet caffe, games zone, DTP, photocopy, spiral binding, computer sales and service, hardware and software training centre and software consultancy centre. The husband of the revision petitioner was examined as PW1. In this context, it is to be noted that one of the objections of the respondent is that the revision petitioner had not mounted box. Virtually, this contention was repelled by both the Rent Control Court as well as the Rent Control Appellate Authority. Going by Section 120 of the Evidence Act "in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In the said circumstances, it can only be held that the said objection of the respondent was rightly repelled by the Rent Control Court and the Rent Control Appellate Authority. The husband of the revision petitioner, who was examined as PW1, deposed in tune with the pleadings in the Rent Control Petition. PW1 has given evidence to the effect that the petition schedule shop room is a portion of the building by name 'A.R.Plaza' belongs to his wife and that a RC.Rev.NoS.80 & 269 of 2017 19 computer centre in the name and style 'A.R.Software Consultancy and Service Centre' is being run in the building in question. He deposed that he is a retired Labour Officer and himself and his wife possess the technical qualifications to run computer centre. Exts.A2 series and Ext.A3 series of documents go to prove the same. There is no conflict in the findings on that aspect by the Rent Control Court and the Appellate Authority. That apart, in tune with the case of the revision petitioner he deposed to the effect that the revision petitioner is running a computer centre in the building with the assistance of PW4. PW4 endorsed the same. While being examined he deposed to the effect that the revision petitioner is running a computer business in A.R. Plaza and one section of the building software consultancy and service centre are being conducted and he is assisting them in the said business. PW2 is the Advocate Commissioner who conducted local inspection of the building and filed Ext.C1 report dated 29.8.2013. He would depose that at the time of his inspection he noticed the fact that the revision petitioner was conducting business in one of the shop rooms. It is to be noted that to controvert the case and evidence of the revision petitioner regarding occupation the respondent relied on Exts.B1, B9 and B13 and the oral evidence of DW4 who was the then postman attached to the RC.Rev.NoS.80 & 269 of 2017 20 post office within whose jurisdictional limit the building in question situates. Ext.B1 is a registered letter sent in the business address of the revision petitioner viz., in the address of her business establishment which was returned by DW4. Ext.B9 is a postal cover sent to PW4 in the business address which was returned with the endorsement 'closed down'. Ext.B13 is the reply received by the counsel for the respondent to Ext.P11 application to the Public Information Officer of Balaramapuram Grama Panchayat, to the effect that licence was not seen issued to PW4 (Suneer Shah), Touch World Solutions. However, the contention of the respondent that the revision petitioner and the respondent are not running computer centers, made relying on Exts.B1, B9 and B13 and the oral evidence of DW4 was not accepted or acted upon by the Rent Control Court as obviously, in its opinion even on excluding the case of the revision petitioner that she was running computed centre her bonafides to occupy the petition schedule shop room as additional accommodation with the remaining portion of the building to run computer centre could not be doubted. In paragraph 24 of the order the Rent Control Court held:-
"The petition schedule room is a part of shopping complex namely A.R.Plaza. DW1 stated in the affidavit filed in lieu of chief examination that the building is RC.Rev.NoS.80 & 269 of 2017 21 having 10 shop rooms and 2 shop rooms are leased and the remaining rooms lying vacant. The said allegedly vacant rooms are under the possession of the petitioner. Thus, it is admitted fact that the petitioner is occupying a part of the building. The said contention laid down by Sec.11(8) of the Act has been established."
16. Thus, it can be seen that the Rent Control Court virtually mistook the position of law in respect of the factors to be established to get en eviction under Section 11(8) of the Act. In other words, the difference between the expressions 'occupation' and 'possession' for the purpose of application of the provision under section 11(8) of the Act, was not properly understood and applied by the Rent Control Court. It is true that with respect to the possession of 8 out 10 shop rooms in A.R.Plaza by the revision petitioner there is no dispute, rather, it is admitted by the respondent tenants. True that, for the purpose of Section 11(8) of the Act what is to be established is not mere legal possession but, occupation of part of the building which is being shared by the tenants, by the Landlord. We have also found that the Appellate Authority has also committed a legal flaw. Though the exposition of law by the Apex Court is to the effect that the bonafide need of additional accommodation for personal use in the case of non-residential building can be for starting a new business or for the expansion of the existing business this was not properly imbibed by the Appellate Authority, with RC.Rev.NoS.80 & 269 of 2017 22 reference to the factual position while tendering the impugned judgment. Thus, the position obtained in the case on hand is that both the Rent Control Court and the Appellate Authority have erroneously interpreted and applied the legal position to the factual position revealed by the evidence on record. In the said circumstances and taking into account the fact that the Rent Control Petition was filed in the year 2012 we do not think it proper and justifiable to remand the matter as what is required is only appropriate application of the position of law to the factual position, taking note of the materials on record.
17. As already noticed the ownership of the revision petitioner over the building in question where the tenant is conducting business and her possession over 8 out of the 10 shop rooms are not at all in dispute. When that be so, taking into account the fact that eviction was sought for under section 11(8) of the Act the first question to be decided is whether the revision petitioner had succeeded in establishing occupation of any space in the said building so as to proceed with the matter. We have no hesitation to hold that in that regard we need not consider whether the revision petitioner is actually running any business in any space of the building which she shares with the tenant, in the light of the decisions referred supra. In the light of RC.Rev.NoS.80 & 269 of 2017 23 the decision of a Division Bench of this Court in Simon's case (supra) 'possession' must combine with something more to make it 'occupation' for the purpose of Section 11(8) of the Act. Therefore, we will examine whether that 'something more' required to make 'possession' as 'occupation' is available in the case on hand. While considering the same we are to remember the exposition of law in Davis' case (supra) and Moidootty Haji's case(supra) to the effect that in the case of non- residential building use it could be for expansion of existing business or for setting up a new business. There is no case for the parties that the building in question is a residential one and in other words, the building in question is admittedly a non-residential one. The evidence on record would reveal that the revision petitioner intends to start a computer centre that provides services like internet caffe, gams zone, DTP, photocopy, spiral binding, computer sales and service, hardware and soft ware training centre and software consultancy centre. She had applied for necessary permission/licence therefor. PW1 who is none other than the husband of the revision petitioner deposed to that effect. Ext.A4 is the project report prepared therefor, by PW3 and he has deposed to that effect. PW2 is the Advocate Commissioner who prepared Ext.C1 report. His report together with his oral testimony would reveal that he had seen tables, chairs, computers etc., in a space RC.Rev.NoS.80 & 269 of 2017 24 in the building, shared by revision petitioner with the tenants, in the possession of the revision petitioner. There is nothing on record which would discredit the said piece of evidence of PW2 with Ext.C1 report. In such circumstances, it can only be said that 'something more' than possession of a space in the building was established by the revision petitioner so as to make the possession as occupation. Certainly, when ground under Section 11(8) is raised for evicting a tenant it is incumbent on the landlord to establish the bonafides. This question was considered and found in favour of the revision petitioner by the Rent Control Court. On a careful analysis of the evidence on record we are of the considered view that there is absolutely no reason for upturning the conclusions arrived at by the Rent Control Court that the revision petitioner had succeeded in establishing occupation of the building in question and the bonafide requirement of additional accommodation for her personal use, in view of the materials on record.
18. It is to be noted that yet another contention of the respondent that the landlady got other shop rooms in the building complex and that the petition schedule shop room is not suitable to conduct business are rejected by the Appellate Authority, as can be seen from the impugned judgment, upholding the contentions of the RC.Rev.NoS.80 & 269 of 2017 25 revision petitioner founded on the decision of the Apex Court in Davis' case (supra). Based on the said decision, the Appellate Authority held that though the landlady is possessing other shop rooms she could not be directed by the tenant to start the business in rooms other than the plaint schedule shop rooms as being the landlady it is for her to decide the said matter. It is also relevant to note that the Appellate Authority, as per the impugned judgment, rejected the contention of the respondent-tenant that the Rent Control Court did not consider the question of comparative hardships as envisaged under Section 11(10) of the Act. While repelling the said contention of the respondent herein the Appellate Authority found that that question was considered by the Rent Control Court in paragraphs 36 of its order. In the contextual situation, it is relevant to refer to Section 11(10) of the Act. Section 11(10) reads thus:-
"11(10) The Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7) or sub-section (8) is bonafide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application:
Provided that, in the case of an application made under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will RC.Rev.NoS.80 & 269 of 2017 26 outweigh the advantage to the landlord:
Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate."
19. Weighing the comparative hardship is a delicate process. Going by the decision in Ashok Kumar v. Sitaram reported in AIR 2001 SC 1692 where the landlord fails to establish that his need is bonafide, the question of comparative hardship would not arise. In the decision in Nand Rani v. Additional District Judge, Moradabad & Another reported in AIR 1980 All 148 it was held that the stage of comparative hardship would reach only after the finding of bonafide requirement in favour of the Landlord. In the case on hand, though the contention of the respondent that the process of weighing comparative hardship was not undertaken by the Rent Control Court was rejected by the Appellate Authority it did not hold that in the case on hand, such a stage had not reached or it was not required whereas, after referring to paragraph 36 of the order of the Rent Control Court it was held that the comparative hardship was considered.
20. It is after finding the question of bonafides in favour of the revision petitioner that the Rent Control Court went on to consider RC.Rev.NoS.80 & 269 of 2017 27 the comparative hardship of the Landlord and the tenant. The case of the revision petitioner is that the respondent has got in his possession shop rooms in another building. It was not refuted and in fact, it was admitted. Ext.A9 would prove the same. The Rent Control Court took note of the fact that no satisfactory evidence was adduced by the respondent to bring out any circumstance that would hamper the shifting of the business to the building referred to in Ext.A9. It is based on the same that the Rent Control Court arrived at the conclusion that the hardship may be caused to the respondent by granting order of rejection will not outweigh the advantage to the landlord. To put it succinctly, a careful scrutiny of the impugned judgment passed by the Appellate Authority would reveal that it is the wrong presumption that to establish occupation the landlord is bound to establish a running business in a portion of the building where he shares space with tenant/tenants, in terms of the provision under Section 11(8) of the Act, that made the Appellate Authority to upturn the finding of the Rent Control Court that revision petitioner is entitled to get evicted the respondent under section 11(8) of the Act. In short, the granting of prayer for eviction under Section 11(8) by the Rent Control Court is bound to be restored after setting aside the impugned judgment passed by the Appellate Authority.
RC.Rev.NoS.80 & 269 of 2017 28R.C.Rev. No.269 of 2017
21. The above revision arises from the judgment dated 06.04.2017 in RCA No.26/2016 of the Additional Rent Control Appellate Authority-III, Thiruvananthapuram reversing the order dated 08.02.2016 in RCP No.19/2012 of the Rent Control Court, Attingal. The Rent Control Court ordered eviction of the respondent herein, the tenant under Section 11(8)of the Act. On the side of revision petitioner, the landlady the same persons who were examined as PWs 1 to 4 in RCP No.18 of 2019 were examined, (of course not in the same order), as PWs 1 to 4 and Exts.A1 to A9 were marked. On the side of the respondent therein/the respondent herein DW1 and DW2 were examined and Ext.B1 series of OP records issued by Medical College Hospital, Thiruvananthapuram were marked. The judgment of the appellate authority as also the pleadings in the appeal would reveal that there is absolutely no case for the parties that the Rent Control Court had wrongly stated the evidence in the order. In other words, the contention of the respondent before the appellate authority was that the evidence on record were not properly appreciated by the Rent Control Court. We have already taken note of the well-nigh settled position that merely because the appellate authority is having the RC.Rev.NoS.80 & 269 of 2017 29 power to re-appreciate the entire evidence substitution of a different conclusion is not justifiable or permissible in a case where the Rent Control Court arrived at plausible conclusions based on the evidence on record. Bearing in mind the aforesaid position we will consider the question whether the contention of the revision petitioner that no interference with the order of the Rent Control Court under Section 11(8) of the Act was called for in the case on hand. In the Rent Control Petition it is averred that the respondent is conducting a Bakery in the plaint schedule shop room bearing No.AMC-XI/1527 in "AR Plaza" and that she is in occupation of some portion of the same building and is in urgent need of the plaint schedule shop room as well for conducting a Computer Centre, which includes DTP, Photocopy, Spiral Binding, Computer sales and service, hardware and software training centre and software consultancy centre, along with her husband. Further more, it is stated that she has already started software consultancy and service centre in the said building. The husband of the revision petitioner was examined as PW1. The Rent Control Court found that his evidence is in tune with the pleadings in the Rent Control Petition. A scanning of the impugned judgment of the Appellate Authority would reveal that his oral testimony was not given due credence on the ground that his version regarding occupation and the commencement of business is not RC.Rev.NoS.80 & 269 of 2017 30 fully supported by pleadings in the Rent Control Petition. In this context, we think it only appropriate to refer to decision of this Court in Fathima v. Stella John reported in 2006 (2) KLT 285. This Court held that meticulous pleadings is not necessary to prove the case in rent control matters as Rent Control Petition is only summary proceedings. Though this decision was cited before the Appellate Authority, it found the same inapplicable to the case holding that the case being one under Section 11(8) of the Act it is incumbent on the landlord who seeks eviction thereunder to establish that he occupies the building in which he proposes to do business and that the space presently being occupied by him is not enough for the expansion of his business. After holding thus the Appellate Authority in paragraph 18 of the impugned judgment held thus:
"Thus the Section itself shows that sufficient pleading is necessary to attract the above section, therefore, the above ruling is not applicable to the facts on the case."
22. We may hasten to add that while holding that the above ruling is not applicable to the facts of the case, the Appellate Authority had failed to consider the relevant aspect as to whether the necessary basic pleadings are taken in the Rent Control Petition and evidence was RC.Rev.NoS.80 & 269 of 2017 31 adduced to prove the same. We have already noted that specifically it was pleaded in the Rent Control Petition that the respondent tenant is conducting fire works business in plaint schedule shop room bearing No.AMC No.XI/152 in the building by name "AR Plaza" belonging to the revision petitioner and that a portion of the same building is occupied by the revision petitioner whereon she has already started software consultancy and service centre. The evidence of PW1 would reveal that he had spoken to that effect while being examined as PW1. The Appellate Authority discarded his evidence on the ground that the number of the shop room whereon the said business was started was not specifically pleaded in the Rent Control Petition. In the contextual situation it is relevant to note that the evidence of PW1 regarding occupation of some portion of the building and commencement of software consultancy and service centre is supported by the evidence of PW 2 to PW4. PW2 is the Advocate Commissioner who conducted inspection in 'AR Plaza', the building which is being shared by the revision petitioner and the respondent tenant and also the adjacent building where the respondent is in possession of two shop rooms on rental basis. While being cross-examined, PW2, the Advocate Commissioner who deposed to the effect that he had seen signs of conduct of business from the shop room that situates on the southern side of RC.Rev.NoS.80 & 269 of 2017 32 the plaint schedule shop room, was asked whether in that room an institution is being conducted. PW2 answered it in the affirmative. It can be seen that the respondent herein has elicited the same from PW2 thus:-
"പട ക കകട ടമറ യകട ക കവശ കടമറ ഹർജ ക ര occupy
ക യ ട ല എന പറയന. (Q) ഞ ൻ ക നപ ൾ കടയ സ ധന സ മഗ കള
ഉണ യ രന."
23. In this context, it is to be noted that Exts.C1 and C2 reports would reveal that at the time of inspection he had noted the existence of the said institution in the building in question and also had noted all that he had seen inside the said room including tables and computers. It is also relevant to note that while being cross-examined a suggestion was also put to PW1 as to whether the computer business is being done through Touch world. PW1 replied that question in the affirmative. PW3 is a Chartered Accountant by profession. He would depose that he prepared Ext.A4 project report to enable the revision petitioner to start the computer centre. Ext.A7 is the certified copy of the application submitted by the revision petitioner before Attingal Municipality for starting computer business. Ext.A8 is the receipt issued therefor, by the Municipality. The evidence of PWs 1 to 4 and the RC.Rev.NoS.80 & 269 of 2017 33 suggestions put to PW1 while he was being cross-examined, as noticed hereinbefore and also the commission reports would indicate that the revision petitioner was able to establish that as relates the building in question she is not only having legal possession but also has some space in her occupation. This occupation of space is in the same building the respondent-tenant is conducting. In the said circumstances, in the light of Simon's case (supra) and taking note of the ingredients required for the purpose of Section 11(8) of the Act it can only be taken that the revision petitioner has succeeded in proving occupation of some portion of the building where the tenant is also occupying a shop room. A scanning of the impugned judgment of the Appellate Authority would reveal that the finding of the Rent Control Court, based on the evidence on record, that the revision petitioner is in occupation of a portion of the plaint schedule building, was interfered with on the ground that according to the Appellate Authority for the purpose of establishing occupation evidence for expansion of a running business in the building in question is required. As noticed hereinbefore, besides the evidence of oral testimonies of PWs1 to4 the suggestions put to PW1 while he was being cross-examined would reveal the fact that what was established by the revision petitioner by adducing evidence is not mere possession of a portion of the building RC.Rev.NoS.80 & 269 of 2017 34 but occupation of a portion of the building. The suggestion put to PW1 as to whether the business is being conducted through PW4 viz., Suneer Shaw and the answer in the affirmative elicited should also go against the respondent. Exts.A7 and A8 as also the project report (Ext.A4) prepared for the revision petitioner by PW3 would also reveal the bonafide intention of the revision petitioner to start a computer business therein. The Rent Control Court found that in Ext.C1 report submitted by PW2 it is stated that in the nearby building by name "Shahnaz building" the respondent possesses one shop room in the ground floor and another in the first floor. Further, it is noted therein in the said shop room in "Shahnaz building", which is in the ground floor the respondent is conducting Bakery and no business is being conducted in the room possessed by him in the first floor. Nothing was brought out to disbelieve PW2. As relates his inspection in the building in question he reported that a board carrying the name "AR Software Consultant Centre And Service Centre" was seen installed in front of the shopping complex and in front of the shop room where the revision petitioner is conducting the business. That apart, he has stated that the room was separated by a curtain and two computers, one computer CD drive, two hard disc, one computer supply unit, some electric materials, one table and four chairs were seen kept in the said room. Merely RC.Rev.NoS.80 & 269 of 2017 35 because the respondent takes up a contention that they were brought solely to convince the Advocate Commissioner at the time of his visit regarding occupation when the fact is that such materials were found in the building belonging to the revision petitioner the version of the Advocate Commissioner who was examined a PW2 would not become valueless. When the statutory requirement to maintain a petition under Section 11(8) is that the landlord also shares a portion of the building where the tenant is in occupation,we are at loss to understand as to how the finding of the Rent Control Court that the revision petitioner had succeeded in establishing occupation of a portion of the building by name "AR Plaza" could be upset by the Appellate Authority holding that in the Rent Control Petition the details such as number of the shop rooms being occupied by the revision petitioner was not specifically mentioned in the rent control petition. As already noticed, the revision petitioner has specifically stated in paragraph 6 of the petition that she has already started software consultancy and service centre in the said building. It is also to be noted that the person by name 'Suneer Shah' who is assisting the revision petitioner in the said business was also examined as PW3. He would depose that he is assisting the running of the computer centre by the revision petitioner and her husband. We have already referred to the decision of the Apex Court in Davis case RC.Rev.NoS.80 & 269 of 2017 36 (supra) that the additional accommodation required by an occupant landlord in a building, if it is for non-residential purpose, can be for expansion of running business or for starting a new business. In this context, it is relevant to note that the revision petitioner has produced the application submitted before the Local Self Government Institution concerned for permission to start the said business. PW2 (PW4) is the Chartered Accountant, who prepared a project report (Ext.A4) for the revision petitioner for the purpose of starting a Computer Centre. Though he was cross-examined nothing was elicited to discredit him. In short, it could be seen that the evidence adduced by the revision petitioner to establish that she is an occupation of a portion of the building by name 'AR Plaza', belonging to her, where the respondent tenant occupies a shop room and conduct bakery was accepted and acted upon by the Rent Control Court based on the evidence on record. The impugned judgment would reveal that it is holding lack of specific pleadings in the Rent Control Petition that the Appellate Authority declined to accept them and found fault with the Rent Control Court in accepting the evidence of the revision petitioner. We have no hesitation to hold that it is the wrong understanding of the position of the law settled and the relevant position under Section 11(8) that constrained the Appellate Authority to interfere with the finding of the RC.Rev.NoS.80 & 269 of 2017 37 Rent Control Court based on the evidence. We have already noted that there is absolutely no case for the respondent that the Rent Control Court did not correctly state the evidence in the order. The judgment of the Appellate Authority would also reveal that the Appellate Authority also did not find that the Rent Control Court has incorrectly stated the evidence in the order impugned before it. The finding of the Appellate Authority is that in the absence of specific pleading with respect to the details of the shop room where the revision petitioner started the business it should have been taken as a ground to discard the evidence adduced by the revision petitioner to establish occupation of the building for the purpose of claim for eviction under Section 11(8) of the Act. Though the order of the Rent Control Court is infected with some legal flaw, as mentioned hereinbefore, it can be seen that the Rent Control Court had arrived at lawful and plausible conclusion with respect to the entitlement of the revision petitioner herein to get an order of eviction under Section 11(8) of the Act.
24. In the result, R.C.R.No.80 of 2017 is allowed. The judgment dated 23.11.2016 in R.C.A.No.19/2016 of the Additional Rent Control Appellate Authority-III, Thiruvananthapuram is set aside and the order dated 8.2.2016 in R.C.P.No.18/2012 of Rent Control Court, Attingal ordering eviction of the respondent is restored.
RC.Rev.NoS.80 & 269 of 2017 38
R.C.R.No.269 of 2017 is allowed. The judgment dated
06.04.2017 in RCA No.26/2016 of the Additional Rent Control Appellate Authority-III, Thiruvananthapuram is set aside and the order dated 08.02.2016 in RCP No.19/2012 of the Rent Control Court, Attingal ordering eviction of the respondent is restored.
Sd/-
C.T.RAVIKUMAR Judge Sd/-
MARY JOSEPH Judge spc/TKS