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2017 DIGILAW 286 (KER)

REJIMOL v. ABDUL NAZAR

2017-02-08

C.K.ABDUL REHIM, SHIRCY V.

body2017
ORDER : Shircy V., J. Challenge is with respect to the correctness of the judgment in R.C.A. No. 17/2015 on the files of the Rent Control Appellate Authority, Ernakulam by the tenant. The Landlord had filed the Rent Control Petition for eviction of the tenant under Section 11(2)(b) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act' for short). 2. Brief facts of the case: The Landlord/respondent is the owner of three rooms of a building known as 'kunnel building' and he is holding possession of one room in the first floor and one room in the ground floor. He is running business in stationary and fancy items in the ground floor of the building by name 'Dreams'. The tenant has taken the petition schedule room which is the other room in the first floor on a monthly rent of Rs.980/- which was subsequently enhanced to Rs.1500/- per month. Rent is in arrears from January 2013. The tenant is running a beauty parlour in the name and style "Mehandi Beauty Parlour". The other room in the first floor was also in the possession of the tenant and it was vacated for the use of the landlord. Large scale of items have to be stocked as the items kept in his shop are fast moving and are in demand. So there is lack of space and he intends to have an exclusive showroom for gift items and toys in the first floor to expand and develop his business so as to run his business in a more profitable way. Hence, a notice was issued to the tenant asking her to vacate the room in her possession as he requires additional accommodation for personal use. 3. The tenant refuted the claim contending that the need projected by the landlord is without any bona fides and if he genuinely needs to develop his business, he could do it with the space already in his possession. It is also contended that the business carried on in the tenanted premises is the only income she derives for her livelihood. Her husband is unemployed. No suitable rooms are available in the locality to shift her business and no rent is in arrears and hence contended that the petition is only to be dismissed. It is also contended that the business carried on in the tenanted premises is the only income she derives for her livelihood. Her husband is unemployed. No suitable rooms are available in the locality to shift her business and no rent is in arrears and hence contended that the petition is only to be dismissed. But the Rent Controller on evaluation of the evidence concluded that the bona fide need urged by the landlord is genuine and ordered eviction on the finding that the hardship that may cause to the tenant will not outweigh the advantage of the landlord. Even though the tenant has challenged the order of eviction before the Appellate Authority, the same was dismissed and so the concurrent findings is questioned in this revision petition. 4. Under Section 20 of the Act the power of the revisional court is very limited and only if the order is illegal, irregular or improper the revisional court has power to interfere. 5. The landlord admittedly occupying a portion of the building wants to expand his stationary business by having an exclusive show room for toys, gift items etc. As PW1, he adduced evidence to the effect that he needs the room to expand his business in the ground floor of the building by removing the wall separating the room in the first floor which is already in his possession and to convert it as an attractive show room. To deny or resist the claim of the landlord the tenant is expected to prove that the hardship that will be caused to her outweigh the advantage of the landlord. Here it is to be noted that even though the landlord is in possession of another room in the first floor, which is in his vacant possession for the last three years, it is admitted by the tenant that he has not let it out to anyone and the said fact would substantiate the claim of the landlord that the need projected is not a ruse for eviction. It could be gathered from evidence on record that his desire is to expand his business by having a show room so as to keep the articles which is having good market in that area as per his statement and hence for his personal use eviction has been sought for. It could be gathered from evidence on record that his desire is to expand his business by having a show room so as to keep the articles which is having good market in that area as per his statement and hence for his personal use eviction has been sought for. Section 11(8) of the Act, envisages that the landlord has to establish that he reasonably and bona fide requires the premises for his personal use and that the test of bonafide under Section 11 (10) shall be satisfied. Here the fact that he has not let out the adjacent room of the tenanted premises to anyone itself shows his bona fides that we genuinely wants to expand his business by utilizing the space of both the rooms. On the other hand, the tenant though contended that she earns her livelihood with the income derived from running the beauty parlour in the tenanted premises, she had admitted before the court that if she joins in any other beauty parlour she would get a monthly income of Rs.6000/- to Rs.8000/- as she is having sufficient expertise in the field whereas she is getting only Rs.3000/- to Rs.4000/- from the parlour run by her in the tenanted premises. So also she has not taken any steps to discharge her burden that no rooms are available in the locality to shift her business, on the other hand the presence of vacant rooms in the immediate vicinity is discernible from the commissioner report. Though the report was challenged by her, the failure to comply with the conditions imposed to get it set aside resulted in acceptance of it as such. The commissioner as RW2 substantiated the contention of the landlord regarding the availability of buildings in the locality for the requirement of the tenant if she wants an accommodation to shift her business. 6. On evaluating the evidence adduced by both the parties, we find that the landlord had established that his need is bonafide and proved that the hardship that will be caused to the tenant will not outweigh his advantage of expanding his business by utilizing the tenanted premises. 6. On evaluating the evidence adduced by both the parties, we find that the landlord had established that his need is bonafide and proved that the hardship that will be caused to the tenant will not outweigh his advantage of expanding his business by utilizing the tenanted premises. On a perusal of the records it could be seen that the Rent Controller as well as the Appellate Authority have meticulously gone through the evidence adduced and balanced and determined that the hardship caused to tenant will not outweigh the advantage derived by the landlord if he gets the premises vacated. Rent was kept in arrears from January 2013 till Ext.A1 notice dated 10/06/13. We are in agreement with the concurrent findings of comparative hardship of tenant and landlord by both the courts. So also we find no illegality, irregularity or impropriety in the order under challenge so as to invoke the jurisdiction under Section 20 of the Act. But on considering the fact that the tenant is a lady who is running a beauty parlour, we find it just and proper to grant time for a total period of six months from today to vacate the premises, subject to following conditions: (i) The tenant shall file an affidavit before the Rent Control Court within a month from today unconditionally undertaking to vacate the premises within a period of six months from today. (ii) The tenant shall pay/deposit the up to date arrears of rent within one month from today and shall continue to pay the rent/occupation charges at the agreed rate, till the date of vacating of the premises. (iii) If the tenant commits breach of any of the conditions mentioned above, the relief granted to her as per this order will stand vacated. The Revision petition is disposed of accordingly.