Sajan vs Sajeev and Others

Pius. C. Kuriakose, J.—This revision petition u/s 20 of Act 2 of 1965 filed by the tenant is directed against the judgment of the Rent Control Appellate Authority confirming an order of eviction passed under Sub-section (3) and Sub Section 8 of Section 11 of Act 2 of 1965. The petition schedule building is one room in a larger building having as many as six rooms of equal dimensions. The landlord is conducting business in Hardwares in the room which is adjacent to the petition schedule building. The landlord''s case was that he bonafide needs the petition schedule building for his own occupation so that he can carry on his business in Hardwares. Alternatively his case was that he needs additional accommodation for his personal use. The bonafides of the need and claim was stiffly resisted by the tenant revision petitioner who contended inter alia that he is entitled for the protection of the second proviso of Sub-section 3 of Section 11 and also that the hardship which will be occasioned to him by the eviction order will out weigh the advantages if any which may enure to the landlord.

The Rent Control Court on evaluating the evidence which consisted of Exts.A1 to A13 and the testimonies of PWs 1 to 4 on the side of the landlord and the testimony of RW1 on the side of the tenant apart from Ext.X1 and X1(a) documents produced by the witnesses, concluded that the need and the claim projected by the landlord both under Sub-section 3 and Sub-section 8 of Section 11 was bonafide. The court also found that the tenant is not entitled to the protection of the second proviso to Sub-section 3 and further that the advantages which will enure to the landlord by getting the eviction will far out weigh the hardship which may be caused to the tenant. The Appellate Authority would re-appreciate the evidence and concur with all the conclusions of the Rent Control Court and confirm the order of eviction passed u/s 11(3) and 11(8).

We have heard the submissions of Smt. K.Nandini, learned Counsel for the petitioner/tenant and those of Sri.S.Shyam, learned Counsel for the respondent/landlord. Smt. Nandini would submit that sufficient opportunity was not received by the tenant for producing the evidence including documentary evidence to substantiate the contention that the tenant is entitled to the protection of Section 11(3) and that the hardship which will be occasioned to the tenant by the eviction will out weigh the advantages which may be gained by the landlord. She fervently appeal for an order of remand to the Rent Control Court so that opportunity is received by the tenant. Sri.S.Shyam, learned Counsel for the landlord would resist the submissions of Smt. Nandini.

We have anxiously considered the rival submissions addressed at the Bar. It will at once be noticed that it is a combined order of eviction u/s 11(3) and 11(8) which has been passed by the Rent Control Court and the Appellate Authority. It is by now trite by decisions of the Supreme Court in S.R. Babu v. T.K. Vasudevan and Ors. 2001(3) KLT 468 (SC) and of this Court in JCR Trading Pvt. Ltd. and Others Vs. A.J. Varghese and Others, that an order of eviction both u/s 11(3) and 11(8) cannot be passed. On examining the fact situation which obtains in this case, it is clear to our mind that the apposite provision for eviction which is applicable in this case is Sub-section 8 of Section 11. The room in the possession of the landlord has a carpet area of just 200 Sq.ft. and having regard to the nature of the business carried on by the landlord, it is only natural that his testimony that he requires the adjacent room also for expanding his business inspired confidence in the mind of the court. It is trite that the standards for establishing the bonafides of a need under Sub-section 8 of Section 11 is not so rigorous as the standards necessary for establishing the bonafides of a need under Sub-section 3 of Section11. We do not find any infirmity about the finding of the Rent Control Court and the Appellate Authority that the landlord''s case that he needs the petition schedule building which is adjacent to the room in which he is carrying out his business for additional accommodation for his personal use is bonafide. Sub-section 8 of Section 11 is qualified by Sub-section 10 with its proviso. We find from the orders of the authorities below that the question of comparative hardship and advantages has been correctly analysed and appreciated by the courts below. May be the tenant will be put to some inconvenience by the order of eviction passed. In our view such inconvenience to a great extent can be alleviated if the tenant is able to take another building on lease in the locality. The evidence adduced by the tenant in this case falls short of holding that other buildings are not available in the locality. There is nothing on record to show that the Rent Control Court decided the rent control petition hastily and denied the petitioner of adequate opportunity for substantiating his contentions. We find that even in the memorandum of revision filed before this Court, no such complaint is raised by the petitioner. This Court u/s 20 does not sit in appeal over the findings of fact entered by the Rent Control Court and the Appellate Authority. This Court is in a revisional jurisdiction where our enquiry is only whether the findings of the authorities below can be said to be vitiated by illegality, irregularity or impropriety. We do not find any such illegality, irregularity or impropriety warranting invocation of Section 20 of Act 2 of 1965.

Smt. Nandini would as a last submission request that atleast one year''s time be granted to the petitioner for surrendering the petition schedule building. The above request was resisted by Sri.S.Shyam tooth and nail. However, having regard to the facts and circumstances of this case we are of the view that by way of indulgence petitioner can be granted time till 15/12/2009.

The result of the above discussion is that the Revision Petition is dismissed. However, the execution court is directed to adjourn the execution petition to 16/12/2009 provided the following conditions are satisfied by the revision petitioner:

1) The revision petitioner files an undertaking in the form of an affidavit stating that he will peacefully surrender the petition schedule building to the respondent/landlord on or before 15/12/2009 and further that he will pay the rent which falls due till the date of surrender, promptly.

Once the execution court notices such an affidavit which is to be filed by the petitioner within three weeks from today, that court will adjourn the E.P. to 16/12/2009.