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2004 DIGILAW 568 (KER)

Jose v. Antony

2004-11-18

K.S.RADHAKRISHNAN, K.THANKAPPAN

body2004
Judgment :- Radhakrishnan, J. Tenants are the revision petitioners. Eviction was sought for by the respondent – landlord under section 11(8) of Act 2 of 1965. Tenanted premises form part of a two storeyed building. Landlord is occupying northernmost room on the ground floor. Tenant in C.R.P.No.1700 of 2002 is occupying southernmost room in the ground floor. Tenant in C.R.P.No.1745 of 2002 is occupying middle room in the ground floor. Upstair portion is in the occupation of the tenant in C.R.P.No.1750 of 2002. Building is facing the main road situated near a bus stand. Landlord is carrying on hotel business by name “Aiswarya Restaurant”. Landlord purchased the building in the year 1995 while he was tenant of the building along with other tenants. He bonafide required the tenanted premises for expansion of his hotel business and for additional accommodation for the existing hotel. 2. Tenants resisted the petition contending that the need is not bonafide and there is no necessity of additional accommodation. Further they also stated that the attempt of the landlord is for getting enhanced rent. Rent Control Court and the Appellate Authority on the basis of the oral and documentary evidence concurrently found that the need urged by the landlord is genuine and bonafide. We find no reason to hold otherwise in our revisional jurisdiction. 3. Rent Control Court however rejected the claim of the landlord under the first proviso to section 11(10) since it was satisfied that the hardship that maybe caused to the tenants by granting eviction will outweigh the advantage of the landlord. It would be profitable to extract the reasoning of the Rent Control Court in its own words. “But it is clear that the petitioner has got some other business and income. The benefit that may be accrued to the petitioner is the development of his hotel business. He has got other business and income. That means his livelihood is not only on the income from the hotel but from other business also. So the need for additional accommodation is only intended for getting more income to the petitioner. This is the benefit or advantage that may be accrued to the petitioner. On the other hand the hardship that may be caused to the counter petitioners if eviction is allowed are that they are not in a position to get suitable accommodation the nearby place. This is the benefit or advantage that may be accrued to the petitioner. On the other hand the hardship that may be caused to the counter petitioners if eviction is allowed are that they are not in a position to get suitable accommodation the nearby place. Even if they get accommodation they have to spend huge amounts. Moreover there is no guarantee that the business in the new place will run smoothly as now. Lastly they are depending for their livelihood mainly on the income from the schedule room. So when we weigh the hardship of counter petitioners and benefits of the petitioner, definitely the hardship of the counter petitioners will outweigh the advantages to the petitioner. If eviction is allowed, in monetary terms the petitioner will be benefited. In such case hardship will be caused to the counter petitioners and according to them, even their livelihood will be deprived of. No doubt, the hardship in case of eviction is more on the side of the counter petitioners. In such case the court must give due importance to the hardship of the counter petitioners than the mere economic benefit of the petitioner.” The appellant court did not support the above reasoning of the Rent Control Court. The Appellate Authority held as follows: “The advantage which the landlord would derive is very evident. He was carrying on the business of running a restaurant from 1987. He had invested amounts and had purchased the building in which he was carrying on the restaurant activity as also the adjacent building. To derive the advantage of his investment he must have the petition schedule buildings in his possession. If he gets buildings elsewhere that would not serve his specific purpose. The additional space if available would enable him to continue to run his present activity better, more advantageously and in a more profitable and lucrative manner. These advantages will not have if he had chosen to purchase another building at some other location. The landlord of course is shown to have several other business activities. But his case that the restaurant is his main activity is not shown to be unreal. His case that his restaurant activity is improving is not established to the hilt of course. But I cannot afford to ignore the nature of the claim. The landlord of course is shown to have several other business activities. But his case that the restaurant is his main activity is not shown to be unreal. His case that his restaurant activity is improving is not established to the hilt of course. But I cannot afford to ignore the nature of the claim. His claim is that he wants to expand his business and not specifically that the space available now is not sufficient. I do not in these circumstances find any reason not to accept the case of the landlord that he would derive great advantage by securing an order of eviction under Section 11(8).” The Appellate Authority ultimately on evaluation of the claim of the landlord found that the hardship that would be caused to the tenant by granting eviction will not outweigh the advantage derived by the landlord and allowed the appeal and ordered eviction under Section 11(8) of the Act. 4. The only question to be considered is whether the Rent Control Court and the Appellate Authority have properly applied the first proviso to Section 11(10) of the Act. First proviso to Section 11(10) of the Act reads as follows: “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 outweigh the advantage to the landlord.” The burden is on the tenant to establish the hardship that may be caused to him if he is evicted from the tenanted premises. Landlord has to discharge his burden to show the advantage that he would derive if he gets the premises vacated. 5. Advantage versus hardship. The advantage that the landlord would derive if the tenant is evicted under Section 11(8) of the Act is that he would get additional space so that he could expand his existing business. He could do more volume of business and gain more profit and also be able to complete with others in the same line of business. Definitely if the landlord expands his business his volume of business may increase, so also his profit, a definite advantage to the landlord. He could do more volume of business and gain more profit and also be able to complete with others in the same line of business. Definitely if the landlord expands his business his volume of business may increase, so also his profit, a definite advantage to the landlord. Even if the landlord has got other buildings elsewhere that would not satisfy his need for additional accommodation and such a plea may be available to a tenant under the first proviso to Section 11(3) in a petition under Section 11(3) but not under Section 11(8). By shifting the business elsewhere the landlord would not gain any advantage but may adversely affect his existing business. These are the advantages derive by the landlord in case he gets additional accommodation. 6. Now let us see what would be the hardship that may be caused to the tenant if he is evicted from the existing premises. Tenant will have to find out another accommodation if he is evicted from the premises. Non availability of building in the locality would affect the tenant especially in a case where the main source of livelihood is the income derived from the business conducted in the tenanted premises. But once availability of building in the locality is established the plea that the main source of livelihood of the tenant is the income derived from the business conducted in the tenanted premises as a defence is not available, though such a plea can be successfully raised by the tenant under the second proviso to Section 11(3) in a petition filed under Section 11(3) of the Act. Rent Control Court has opined that even if the tenant gets alternate accommodation he will have to spend huge amount for shifting the business and that there is no guarantee that the business in the new premises would run smoothly. Reasoning of the Rent Control Court in our view is unsound. It is entirely the look out of the tenant to successfully conduct his business in the new premises. Naturally shifting of the business would cause inconvenience to the tenant and such inconvenience cannot be termed as “hardship” under the first proviso to Section 11(10) of the Act. 7. The Rent Control Court also took the view that the tenant is depending on the income derived from the business conducted in the tenanted premises. Naturally shifting of the business would cause inconvenience to the tenant and such inconvenience cannot be termed as “hardship” under the first proviso to Section 11(10) of the Act. 7. The Rent Control Court also took the view that the tenant is depending on the income derived from the business conducted in the tenanted premises. Such a plea is not available to the tenant under the first proviso to Section 11(10) of the Act but under the second proviso to Section 11(3). 8. The Rent Control Court has to balance both and determine whether the hardship which may be caused to the tenant would outweigh the advantage derived by the landlord. When the Court finds that the hardship that may be caused to the tenant falls short of the advantage derived by the landlord, the court has to lean in favour of the landlord, so also if the hardship and the advantage balance or neutralize or counter poise still the court will lean in favour of the landlord. On the other hand if the court finds that the hardship that would be caused to the tenant will outweigh, offset or overbalance, the advantage derived by the landlord the balance will tilt in favour of the tenant and the claim for eviction has to be rejected. 9. Rent Control Court has not properly applied the principle of comparative hardship and committed an error in dismissing the application. The Rent Control Court and the Appellate Authority concurrently found that the landlord’s requirement of additional accommodation is reasonable and genuine and the claim under Section 11 (8) is bonafide. The Rent Control Court denied relief only on the proviso to Section 11(10). We fully concur with the view of the Appellate Authority that the landlord’s advantage will outweigh the hardship caused to the tenant. The additional accommodation is highly necessary for expansion of the landlord’s business. Facts would indicate that buildings are available in the locality. On evaluation of the entire evidence we are of the view that the appellate authority has rightly found that hardship that may be caused to the tenant is lesser than the advantage derived by the landlord. In such circumstances we find no reason to disturb the finding of the Appellate Authority. The revision petitions lack merits and the same would stand dismissed. 10. In such circumstances we find no reason to disturb the finding of the Appellate Authority. The revision petitions lack merits and the same would stand dismissed. 10. However, considering the facts and circumstances of the case, we are inclined to grant time to the tenant for vacating the premises upto 31.03.2005 on condition that the tenants should file an undertaking in the form of an affidavit that he would vacate the premises within the aforesaid time and would pay arrears of rent, if any, and future rent.