Kerala High Court
M.Arshadha vs M.Salim on 12 August, 2021
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
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
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
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.
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.
R.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
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
