Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 330 (KER)

Arumugham v. R. Leena

2005-06-01

K.R.UDAYABHANU, R.BHASKARAN

body2005
Judgment :- Bhaskaran, J. This Rent Control Revision is filed by the respondent in R.C.P.No.119/1994 on the file of the Rent Control Court, Thiruvananthapuram. The Rent Control Court as well as the Rent Control Appellate Authority have allowed the claim of the landlord. 2. According to the landlord, the original tenant was the wife of the respondent in the R.C.P. and after her death, the present tenant executed a fresh rent deed on 4-12-1991 agreeing to pay monthly rent of Rs.350. Originally the landlord’s father was conducting bakery business in the entire building. When he became old and was unable to make bakery items he decided to continue the business by purchasing bakery items from outside and to do business in a portion of the building and the remaining portion was let out to the respondent’s wife. For that purpose a temporary partition was made of the room where the bakery business was conducted. After the death of the father, the petitioner continued the business. The husband of the petitioner is not having any source of income. Both the landlord and her husband are now engaged in the bakery business. They want to expand the business and for that purpose the petition schedule shop room also is required. There are several other rooms available for the respondent in the R.C.P. to shift his business. 3. The tenant contended that he is not in possession of any other shop room. The petitioner's husband has his own business. There is sufficient space available with the petitioner and there is no need for evicting the tenant to expand thy business. There are no other building available in the locality for shifting the business. The comparative hardship which may be caused to the respondent would be much higher if an order of eviction is passed. 4. On the above pleadings the Rent Control Court considered the question whether the hardship caused to the tenant will outweigh the benefit of the landlord by an order of eviction. In support of the petitioner’s claim the husband of the petitioner was examined as P.W.1. An Advocate Commissioner was appointed to report about the accommodation available in the present bakery shop and to ascertain whether additional accommodation is required. The Commissioner filed Exts.C-1 and C-2 reports. She was also examined as C.P.W.2. The respondent was examined as C.P.W.1. In support of the petitioner’s claim the husband of the petitioner was examined as P.W.1. An Advocate Commissioner was appointed to report about the accommodation available in the present bakery shop and to ascertain whether additional accommodation is required. The Commissioner filed Exts.C-1 and C-2 reports. She was also examined as C.P.W.2. The respondent was examined as C.P.W.1. After analyzing the evidence on both sides, the Rent Control court found that the landlord required the petition schedule premises also for the expansion of the bakery business. The Rent Control Court found that the petition schedule building is situated on the side of Statue-General Hospital Road, a very important business centre in Thiruvananthapuram and there are six bakeries on the same road side. The Rent Control Court considered the question as to whether the order of eviction will cause hardship to the tenant which will outweigh the benefit of the landlord. The Rent Control Court found that the tenant has not proved that there are no other buildings available in the locality and therefore it cannot be said that an order of eviction will cause much hardship to the tenant. The Rent Control Court therefore granted an order of eviction as prayed for. 5. In appeal, the Rent Control Appellate Authority has confirmed all the findings of the Rent Control Court. After hearing the learned counsel on both sides and perusing the records and orders of the authorities below we are not in a position to hold that the need for additional accommodation set up by the landlord is not bona fide. As a matter of fact the original landlord was doing business in the entire building. It was on account of his old age and other personal problems that he had to restrict his business to a portion of the building. Now the present landlord wants to do business in the entire building and the commission report suggests that there is congestion in the existing space for display of bakery items and additional space is really required and the landlord has given other evidence also to the same effect. There is no reason for us to doubt the correctness of the concurrent findings of the authorities below. The only contention of the tenant was that there was vacant space behind the existing building where, if necessary, the landlord could make additional constructions. There is no reason for us to doubt the correctness of the concurrent findings of the authorities below. The only contention of the tenant was that there was vacant space behind the existing building where, if necessary, the landlord could make additional constructions. Such contention cannot be accepted as what is required by the landlord is space in the room facing the road and the tenant cannot contend that the landlord may construct another building for additional accommodation. In so far as the need alleged is for expansion of the bakery shop room, the space available must be on the road side itself. 6. The only other contention to be considered is whether there are other buildings available in the locality to which the tenant can shift his business. Learned counsel appearing for the revision petitioner contended that the only reason for holding that there are other rooms available in the locality for the tenant to shift his business is the reliance made on Ext.A-3 advertisement in Kerala Koumudi about the existence of a shop building to be let out. According to the learned counsel the paper publication by itself is not admissible in evidence without examining the author of the publication. For the above purpose he relied on the decision of the Supreme Court reported in Quamarul Islam v. S.K. Kanta A.I.R. 1994 S.C. 1733. In that case the Supreme Court relied on the earlier decision of the Supreme Court reported in Laxmi Raj Shetty v. State of Tamil Nadu (1988 (3) S.C.C. 319) holding that a report in a newspaper is only hearsay evidence. Such reports are inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing the fact reported. The Supreme Court was considering the validity of an election conducted in respect of one of the Constituencies in Karnataka State. The appellant, returned candidate denied making of the offending statement. In such circumstances the Supreme Court held that the various newspaper reports, advertisement and messages as published in Bahmani Newspaper cannot be treated as proof of the facts stated therein and cannot be used against the appellant in the absence of any evidence aliened. Under Sec.81 of the Evidence Act, though newspapers are admissible in evidence without formal proof, the paper itself is not proof of its contents. As a matter of fact Ext. Under Sec.81 of the Evidence Act, though newspapers are admissible in evidence without formal proof, the paper itself is not proof of its contents. As a matter of fact Ext. A-3 is not the only item of evidence to show that there are other buildings available in the locality. The complaint of the learned counsel for the revision petitioner is that the approach made by the authorities below in considering the question of availability of other buildings in the locality was as though the entire burden is on the tenant like the one required under the second proviso to Sec.11 (3) of the Rent Control Act. According to the learned counsel it is a case where both the landlord and the tenant have to adduce evidence. As held by a Division Bench of this Court in Arjunan v. Eranu (1991 (2) K.L.T. 279) both sides should lead evidence substantiating the facts stated in the 1st proviso to Sec.11 (10) of the Act. The Division Bench relied on the decisions of the Supreme Court reported in P. B. Desai v. C. M. Patel (A.I.R. 1974 S.C. 1059) and Bega Begum v. Abdul Ahad Khan (A.I.R. 1979 S.C. 272). That decision also is authority for the proposition that the final finding regarding the greater hardship is a finding of fact. As already noticed if the Rent Control Court and the Appellate Authority had relied only on the advertisement in Ext.A-3 with regard to the availability, of other rooms in the same locality then it could be said that the finding is based on no evidence. But in this case we notice that apart from Ext. A-3 there are other evidence available. 7. What is to be considered under the 1st proviso to Sec.11(10) of the Act is the comparative hard ship, which may be caused to the tenant by granting an order of eviction which will outweigh the advantage to the landlord. The question whether the tenant is exclusively depending on the income from the petition schedule building and whether he has got other source of livelihood and whether there are other available rooms where he can shift the business etc. are all relevant considerations when the landlord seeks eviction on the ground of additional accommodation. The question whether the tenant is exclusively depending on the income from the petition schedule building and whether he has got other source of livelihood and whether there are other available rooms where he can shift the business etc. are all relevant considerations when the landlord seeks eviction on the ground of additional accommodation. It is also settled law that the yardstick to decide whether the landlord requires the remaining portion of the room for additional accommodation is not the same as in the case of an application for eviction on the ground of bona fide need. In deciding the question whether the landlord has established the requirements of additional accommodation the desire of the landlord for expansion of the business cannot be doubted except where there is evidence to show that such claim is made without any bona fides. 8. P.W.1 is the husband of the petitioner. He has stated that for the respondent there is one more business by name Vimala Electronics where repairs of fridge etc. are done. He also stated that, the respondent is a dealer in Air conditioner and the same is conducted in T.C. 27/2280. One of his children is an Engineer and the other is an Advocate. P.W.1 has stated that there are rooms available in the locality if the tenant, wanted to shift. He has pointed out three rooms in Archana Buildings and shop rooms in Bishop Memorial Shopping Complex. He also stated that the shop room which was advertised to be let out is available even at the time of his giving evidence. He also stated that there are two rooms near the petition schedule shop room available to be let out. He gave room numbers as 27/2257 and 27/2250. He also deposed that when the Advocate Commissioner came to inspect the properties he was not given notice and he had gone to attend his brother's son’s marriage and he could not point out the rooms to the Commissioner. In cross ­examination he was asked about the further details of the rooms mentioned by him in chief examination and he has given the names of the owners of those buildings. Nothing was there to disbelieve his evidence with regard to the existence of other buildings in the locality. 9. C.P.W.1 is the tenant of the building. He has denied the existence of any other business for him. Nothing was there to disbelieve his evidence with regard to the existence of other buildings in the locality. 9. C.P.W.1 is the tenant of the building. He has denied the existence of any other business for him. According to the learned counsel for the revision petitioner there is only oath against oath and unless there is something to show that other rooms are available the findings of the authorities cannot be sustained. He also contended that the Commissioner has reported the non-existence of other rooms in the same road. The report of the Commissioner has been explained already stating that she visited the property in the absence of the petitioner and at the time of second inspection when the landlord wanted to point out the shop rooms, the Commissioner told him that the purpose of her inspection was only to find out the accommodation available with the adjacent room of the petition schedule building. In the decision reported in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada (2003 (2) S.C.C 320) the Supreme Court has held that in cases of claim for additional accommodation the burden of proving greater hardship by the order of eviction is on the tenant. In that decision it was held as follows: “The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city, that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.” In this case as already discussed it cannot be said that the tenant has discharged that burden. The findings of the authorities below do not call for any interference. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.” In this case as already discussed it cannot be said that the tenant has discharged that burden. The findings of the authorities below do not call for any interference. In the result the Rent Control Revision is dismissed and the tenant is granted three months’ time from today to vacate the premises on condition that he deposits the entire arrears of rent, if any, within one month from today and also files an affidavit before the Rent Control Court undertaking to vacate the premises on or before, the expiry of three months from today. The affidavit must also be filed within one month from today.