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K.A. Prem & Others v/s K. Madhu

    RCRev. No. 55 of 2019

    Decided On, 18 February 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

    For the Petitioners: N. Raynold Fernandez, Amal George, Manu George Kuruvilla, Megha Chandran, Advocates. For the Respondent: George Thomas Mevada, Sr. Advocate, P.A. Abdul Jabbar, Advocate.



Judgment Text

K. Harilal, J.

1. The revision petitioners are the tenants, who are confronting with an order of eviction passed against them under Section 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as, 'the Act'] by the Rent Control Court and affirmed by the Rent Control Appellate Authority. The building consists of three floors and the tenants are in occupation of one room on the first floor and the entire remaining portion of the building, on the ground floor, first floor and the 2nd floor is in occupation of the landlord and he is conducting a shop by name KPK and Sons. It is a business of selling glass, plywood, laminated sheets and hardwares. He claimed eviction of the tenants stating that the space presently under his occupation is not sufficient for his business and that he bona fide requires the petition schedule room under the occupation of the respondents/ tenants, in the first floor, for additional accommodation.

2. The tenants resisted the claim for eviction

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contending that the need for additional accommodation is not bona fide. According to them, major portion of the building in the occupation of the landlord is being used for dumping waste materials and it would go to show that the need is not bona fide. Earlier, the landlord obtained vacant possession of the first floor by evicting another tenant. But the said space was not used for the purpose stated in that petition. The first respondent is conducting a law firm in the tenanted premises and it is his only source of income for his livelihood. Therefore, the hardship, which may be caused to the tenants, in the event of eviction, would certainly outweigh the advantage to the landlord. Thus, they prayed for dismissal of the petition.

3. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the need for additional accommodation is bona fide and the hardship, which may be caused to the tenants, would not outweigh the advantage to the landlord, by the order of eviction. In appeal, the appellate authority re-appreciated the evidence on record and affirmed the aforesaid findings of the Rent Control Court as such without any interference and dismissed the appeal. Thus, the legality and propriety of the concurrent findings of the courts below have come up in revision before us.

4. Heard Shri.George Thomas Mevada, the learned Senior counsel appearing for the revision petitioners/ tenants and the learned counsel for the respondent/ landlord.

5. The learned Senior counsel appearing for the revision petitioners advanced arguments exhaustively contending that the evidence on record would prove that the requirement for additional accommodation is not bona fide. The courts below failed to appreciate the same in its true and correct perspective. The findings of the courts below that the requirement for additional accommodation is bona fide is perverse, warranting interference of this Court in exercise of the revisional jurisdiction. In order to bring home the aforesaid argument, the learned counsel invited our attention to the pleadings and evidence, including the Commission Report and the photographs, which would show the present occupancy position of the tenanted premises. According the learned counsel, the aforesaid evidence would prove that the landlord has, in his possession, sufficient vacant space and that space is being used for dumping waste and scrap materials. In other words, according to the learned counsel, the 2nd floor is lying vacant, but the same is being used for dumping waste and scrap materials and resting room. Had the need been bona fide, certainly the landlord could have used the 2nd floor to satisfy his additional requirement.

6. Per contra, the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below that the need for additional accommodation is bona fide. According to the learned counsel, the evidence on record would show that no vacant space has been available in the possession of the landlord and the entire space in occupation of the landlord is being used for his business purpose only. The learned counsel invited our attention to the commission report and pointed out that the commission report would show that the 2nd floor is being used for storing materials, dumping wastes and scrap materials and for the recreation of the employees working in the shop and those are essentially required for conducting the business in accordance with various labour laws.

7. At the outset, we must remember the scope and extent of interference in revisional jurisdiction, which is confined to the legality, propriety and regularity of the findings of the courts below only. This Court is not allowed to re-appreciate the entire evidence on record, so as to arrive at a different finding, unless the findings of the court below on factual issues are perverse or vitiated by non-consideration of material evidence.

8. The sum and substance of the arguments advanced by the learned counsel for the tenants is that the 2nd floor is being used for dumping scrap and waste materials and that space could have been used for additional accommodation, had the need been a genuine one. Going by the commission report, it could be seen that the commissioner has specifically reported that there is no vacant space on the first floor and the entire first floor has been occupied for stocking the materials for sale. As regards the 2nd floor, the Commissioner has reported that the 2nd floor consists of three rooms and the first room had been used for storing articles in the cupboards fitted on the walls and the 2nd middle room is being used for dumping wastes and scrap materials and the 3rd room is being used for the recreation purpose of the employees working in the shop.

9. In view of the arguments at the bar, here arises a question, whether allotment of space for dumping waste or scrap materials and recreation of the employees would negate the bona fides of the need for additional accommodation, envisaged under Section 11(8) of the Act. Admittedly, the landlord has been conducting the business of selling glass, plywood, laminated sheets and different kinds of hardwares and the ground floor is used as a show room for the same. The nature of business would show that it would generate large quantity of scrap and waste materials, including cut pieces of plywood, laminated sheets, glass etc. and it is not possible to remove those scrap or waste materials immediately on each occasion from the shop. It follows that the owner of a hardware shop is liable to find out the space for dumping the waste and scrap materials also. Nowadays, almost all the shop owners are struggling to find space for dumping waste materials, as they are not allowed to throw it to the public place or to the neighbouring property owned by another person and the violation of the same is punishable under law also. Thus, this Court is of the view that the space for dumping scrap and waste materials is an essential requirement for any kind of business, whether it is big or small. In the case of a hardware business, sufficient space is required for storing the scrap and waste materials and such a shop cannot be conducted without space for dumping scrap and waste materials. In the above view, it cannot be said that the space set out for dumping waste or scrap materials can be used for expansion of the business after removing the same from that space.

10. Similarly, according to various labour laws, rules and orders made thereunder, the owner of a shop is liable to give due regard to his employees and he is liable to do all the needful to maintain the welfare of the employees working under him in his shop. It is needless to say, the violation of the same is punishable under law. It has come out in evidence that the landlord has '7' employees. Certainly, he is liable to set out sufficient space for resting and dining room or recreation room for them. The commission report shows that one room in the 2nd floor is being used as recreation room of the employees working in the shop. The Commissioner has found and reported that three tables and 7 chairs were there in the said room. In the above view, we further find that allotment of space for resting and dining or recreation of the employees can never be an unnecessary allotment of space and it is essentially required for the conduct of the business in accordance with the Labour Laws. So, it cannot be said that the space allotted as recreation room of the employees can be used to meet the additional requirement, envisaged under Section 11(8) of the Act, after converting the same.

In the above analysis, we find that the evidence on record would prove that the landlord has not been in possession of any vacant space and the entire space is occupied for his existing business and expansion requires additional space. We do not find any kind of perversity in the appreciation of evidence. Hence, this revision petition fails and is dismissed accordingly.

The learned counsel for the revision petitioners/ tenants prayed for sometime to vacate the tenanted premises. Having regard to the submission at the bar, the revision petitioners/ tenants are given six months' time from today to vacate the tenanted premises on the following conditions :-

1. The revision petitioners/ tenants shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within six months from today.

2. The revision petitioners/ tenants shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default.

3. In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/ landlord will be at liberty to proceed with the execution of the eviction order
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