JUDGMENT : A. Muhamed Mustaque, J. Whether shifting of an existing business of the landlord from the first floor to the ground floor would attract Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act or not ? This is the simple question to be decided in this revision. 2. The tenant who is aggrieved by the concurrent findings under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act (for short ‘the Act’ hereinafter), questions the legality of the order in this revision. The niceties of the distinction between Sections 11(3) and 11(8) of the Act are drawn for our attention by the learned Counsel for the revision petitioner Sri.Saneesh Kumar K., who argued in extenso. According to him, if the need is to shift the existing business from the first floor to the ground floor, only Section 11 (3) of the Act would be attracted and not Section 11(8). According to him, it is not for the purpose of expansion of a present business, but the need is projected to shift the entire business from the first floor to the ground floor. He also raised the point of the non-consideration of the malafides attributed by the tenant in the pleadings by both authority. We shall also advert to these points at a later stage of the judgment. We also heard learned Senior Counsel Sri.Sudhi Vasudevan, who has been instructed to appear in this matter for the landlady. 3. He also raised the point of the non-consideration of the malafides attributed by the tenant in the pleadings by both authority. We shall also advert to these points at a later stage of the judgment. We also heard learned Senior Counsel Sri.Sudhi Vasudevan, who has been instructed to appear in this matter for the landlady. 3. We shall now advert to Section 11(3) of the Act, which reads thus: “(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.” Section 11(8) of the Act, reads thus: (8) 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 landlord in possession thereof, if he requires additional accommodation for his personal use. The bonafide need for a landlord to occupy a building may arise in different contexts. If such need arises, not in connection with any other building in occupation of the landlord, it necessarily mean that claim for eviction is under Section 11(3). If he is in occupation of a portion of the building and his need is to occupy the other portion of the existing building, he can opt; his need can be either under Sections 11(3) or 11(8). The distinction between Sections 11(3) and 11(8) is essentially relating to the occupation of the remaining portion of the building of the tenanted premises by the landlord. If any portion of the building is in occupation of the landlords, he can choose to evict the tenant either under Sections 11(3) or 11(8). The option is left to the landlord. In the sense, it is for the landlord to decide to project his need either under Sections 11(3) or 11 (8). 4. No doubt, the Sections 11(3) and 11(8) are mutually exclusive. See the judgment of this Court in Indian Saree House vs. Radhalakshmy [ 2006 (3) KLT 129 ]. If he chooses to evict the tenant under Section 11(8), the parameter to be decided as far as the protection to the tenant, may vary. 4. No doubt, the Sections 11(3) and 11(8) are mutually exclusive. See the judgment of this Court in Indian Saree House vs. Radhalakshmy [ 2006 (3) KLT 129 ]. If he chooses to evict the tenant under Section 11(8), the parameter to be decided as far as the protection to the tenant, may vary. In the sense, under Section 11(3) proviso, the tenant has to prove that his main source of income is derived from the business where he carries the tenanted premises and he has no alternative building in the locality to shift his business, whereas under Section 11(8), the Court has to satisfy the comparative hardship is more to the tenant to decline the eviction. 5. Nowhere in the statutory provision in it stipulated that the requirement that can be projected by the landlord is only to expand his existing business. Statutory provision is very clear, if the landlord is in possession of the remaining portion of the building, he can seek eviction of the tenant which may also come under Section 11(3) by moving an application under Section 11(8). No doubt, as rightly pointed out by the learned counsel for the revision petitioner, the landlord has to prove the bonafides in making such application as mandated under Section 11(10). 6. In this case, the landlady is having a dealership in Honda Scooter and landlady is having a show room on the ground floor and a spare parts business and service on the first floor. The tenant is in occupation of a portion of a ground floor having a width area of 160 sq.ft and is running the business in the backtrack. The landlady wants to shift the spare parts business completely to the ground floor and to occupy the first floor for the purpose of service. The need projected squarely falls under Section 11(8), for the simple reason that landlord is admittedly in occupation of the remaining portion of the building. Therefore, we are of the view that petition for eviction, coming within Section 11(8), is maintainable. 7. Learned Counsel for the revision petitioner relying upon the judgment of this Court in Welfare Stationery and Anr. The need projected squarely falls under Section 11(8), for the simple reason that landlord is admittedly in occupation of the remaining portion of the building. Therefore, we are of the view that petition for eviction, coming within Section 11(8), is maintainable. 7. Learned Counsel for the revision petitioner relying upon the judgment of this Court in Welfare Stationery and Anr. vs. South Indian Bank Ltd. and others [2014 KHC 252] argued that when the landlord seeks to evict the tenant on an independent need other than that related to the existing business, it would fall under Section 11(3) and not under Section 11(8). We are of the view that the ratio of the above case clearly would show that where the landlord pleaded additional accommodation for expansion of existing buildings, but in the evidence projected requirement of independent needs, in that context, the Court found that the landlord’s need was not a bonafide and will not attract Section 11(8). We have cautioned ourselves that in matters under rent control, especially relating to appreciation of facts under Sections 11(3) or 11(8), the judgments of higher Court cannot be treated as a precedent as a ratio of each case would vary from case to case. According to us, the judgment in Welfare Stationery and Anr. vs. South Indian Bank Ltd. and others [2014 KHC 252] will not support the revision petitioner’s case. 8. Coming back to question raised by the learned counsel for the revision petitioner that both authorities fail to advert to the malafide pleaded by the tenant. Learned counsel strenuously argued that mandate under Section 11(10) of the Act cannot be over looked by the Rent Control Authorities. 8. Coming back to question raised by the learned counsel for the revision petitioner that both authorities fail to advert to the malafide pleaded by the tenant. Learned counsel strenuously argued that mandate under Section 11(10) of the Act cannot be over looked by the Rent Control Authorities. The Section 11(10) of the Act states as follows: (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 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 aggregate.” 9. In a matter like this, certainly, the landlady has to prove her claim is bonafide. It is specifically pleaded by the tenant in paragraph 3 of his counter statement that in order to wreak his vengeance for raising a dispute with regard to parking in a common space available, the landlady has resorted to the eviction process. It is true that the Rent Controller had not adverted to these allegations, but curiously enough, we perused the appeal memorandum; except in raising that the Rent Controller erred in finding that the claim is genuine, nothing has been stated about the non-consideration of his pleading by the Rent Controller. The casual manner in which appeal grounds have been raised, would clearly show that the tenant was not serious about the allegation pleaded in paragraph 3 of the counter. Anyway, the first appellant authority is the first forum where the tenant could have raised this objection on factual matters. Having not raised specifically before the appellate Court, we are not able to pursue this argument, at this stage. Anyway, the first appellant authority is the first forum where the tenant could have raised this objection on factual matters. Having not raised specifically before the appellate Court, we are not able to pursue this argument, at this stage. It is to be also noted the tenant has also not specifically argued this ground before the appellate authority. Appellate authority had not mentioned any thing relating to the alleged malafides. Both the authorities found that the tenant is having a flourishing business and is an owner of 11 rooms in Calicut town and therefore no hardship will be caused to him by the order of eviction. Therefore, both the authorities found that the tenant is not entitled for any protection under Section 11(8), based on comparative hardships. We, therefore, find no merit in this revision. The Revision Petition is dismissed. 10. However, tenant is granted 6 months time from today to vacate the building on the following conditions: (a) The revision petitioner/tenant shall file undertaking that he will vacate the building within six months from today. The undertaking shall be filed within one month. (b) The tenant shall clear entire arrears of rent within one month and continues to pay the rent payable till he actually surrenders the building. No costs.