Partly allowed

P.K.Saibunniza v. M/S.Malabar Pioneer Hosiery Pvt. Ltd.

Kerala HC6 Jan 2011RCRev./264/2006

Case brief

AI extract

What is this about?

Kerala HC dismissed the tenant's revision challenging eviction orders by the Rent Control Court and Appellate Authority. The Court upheld the finding of bona fide need for business expansion and the application of the hardship proviso, granting time for surrender of possession.

What did the court decide?

Revision petition dismissed. Execution proceedings to remain suspended until 31/1/2012 subject to undertaking for peaceful surrender and payment of arrears.

P.K.Saibunniza Vs M/S.Malabar Pioneer Hosiery Pvt… — Execution and Attachment | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932

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RCRev..No. 264 of 2006() -----------------------RCA.172/2005 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.139/2004 OF RENT CONTROL COURT, KOZHIKODE

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REVN. PETITIONER/APPELLANT/RESPONDENT

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P.K.SAIBUNNIZA, AGED 48 YRS, W/O. A.K.AHAMMED ASHRAF, M/S. HYDAKER GREEN GARDEN, CHIRAKKARA P.O., THALASSERY, KANNUR DIST.

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BY ADV. SRI.C.P.MOHAMMED NIAS

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RESPONDENT(S): RESPONDENT/PETITIONER

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M/S. MALABAR PIONEER HOSIERY PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, REP. BY ITS EXECUTIVE DIRECTOR, V.K.ERADI, AGED 77 YRS, S/O. KRISHNAN MOOSAD, KALLAI ROAD, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 SRI.K.B.SIVARAMAKRISHNAN FOR R1

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER ON IA. NO. 1911/06 & 146/07

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DISMISSED

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SD/- PIUS C. KURIAKOSE, JUDGE. 6-1-2011 SD/- N.K.BALAKRISHNAN, JUDGE.

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(TRUE COPY)

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PS TO JUDGE.

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PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.

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RCR. No. 264 of 2006

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Dated this the 6^th day of January, 2011

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O R D E R

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Pius C.Kuriakose, J.

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Under challenge in this revision filed under section 20 by the tenant is the order of eviction concurrently passed by the Rent Control Court and the Appellate Authority under sub-section (8) of Section 11. The landlord had invoked the ground under Section 11(4)(iii) also for evicting the tenant and the Rent Control Court had actually ordered eviction under that ground also. But the Appellate Authority under the impugned judgment interfered with that eviction order and allowed the appeal to that extent. In the absence of any revision filed by the landlord we in this revision need be concerned only with the order of eviction passed by the statutory authorities under Section 11(8).

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We have gone through the order of the Rent Control Court as well as the judgment of the Appellate Authority in

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RCR. 264/06

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detail. We notice that it is making a thorough and critical analysis of the evidence adduced by the parties, i.e., oral evidence of PW-1 and RW-1 and documents Exts.A1 to A9 and B1 to B4 (series) and commissioner's report C-1 and C- 1(a) plan submitted by the Commissioner apart from the oral evidence of the Commissioners as CW-1 and CW-2, that the learned Rent Control Court concluded that the need of the landlord company by name Malabar Pioneer Hosiery Private Ltd. who are conducting textile business under the name and style Pioneer Textiles in a portion of the larger building which takes in the petition schedule building also to expand their business of Pioneer Textiles by utilising the petition schedule building is a bona fide one. The learned Appellate Authority also has made a threadbare analysis of the evidence pertaining to the issue. It is trite by various decision of this court that the standards of bonafides for establishing a need under sub-section (8) of Section 11 are

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RCR. 264/06

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not so rigorous as the standards for establishing the bonafides in a claim under sub-section (3) of Section 11. As for the present case it is evident that the petition schedule building is a portion of a larger building and that in the other adjacent portions of the larger building, Pioneer Textiles is being conducted. It is also evident through commissioners' reports and the oral evidence adduced by the commissioners that there is shortage of space in the building portion where Pioneer Textiles is being conducted. The requirement for additional space was sought to be proved by the landlord with reference to documents pertaining to their business conducted by them. The tenant in her counter evidence had nothing to say regarding the facts revealed by the documents produced by the landlord pertaining to the volume of business which the landlord was having. In short, the final finding by the Appellate Authority that the need for additional accommodation is bona fide in

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RCR. 264/06

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our view also is a very correct finding founded on evidence. Then the question is whether the proviso to sub-section (10) of Section 11 will apply. We find both the Rent Control Court and the Appellate Authority have considered the implications of the above proviso through right perspective. It has been found that the advantages which the landlord may gain will outweigh the hardship if any, which the tenant may sustain. These are findings entered concurrently by the fact finding authorities and we don't find any illegality, irregularity or impropriety about those findings.

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Sri.Mohammed Nias, learned counsel for the revision petitioner would assail the judgment of the Appellate Authority with all might at his hand. The learned counsel submitted that it is in evidence that manufacturing units belonging to the landlord have been closed down. When that is the situation, the case of the landlord that he

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RCR. 264/06

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requires additional accommodation for expanding his textile shop, which is selling only the products of his unit is inherently improbable. Mr.Nias would draw our attention to Annexure A1 notice produced along with the interlocutory application filed in this revision petition. The learned counsel submitted that Annexure A1 is issued by the landlord at the time of commencement of the present rent control petition itself to the tenants occupying adjacent shop rooms. The landlord admittedly have only three tenants. Drawing our attention to paragraph 2 of page No.2 of Annexure A1, Mr.Nias argued that the need projected therein is that all the tenants are liable to be evicted for expansion of auditorium and also to provide proper entrance to the auditorium. The conflicting versions of the landlord will show that the need urged in the present RCP for additional accommodation is only a ruse. The learned counsel further submitted that the statutory

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RCR. 264/06

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authorities, have not considered the implications of the proviso to sub-section 10 of Section 11. It is in evidence that hardship, which will be occasioned to the tenants by the eviction order, will be irreparable while the advantage to be gained by the landlord is practically nothing.

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In reply, Sri.R.Bindu Sasthamangalam would draw our attention to Ext.B4 and submitted that it is the petition schedule room that is immediately adjacent to the textile shop belonging to the landlord. The textile shop can be expanded only by utilising the petition schedule room. The rooms occupied by the other two tenants, on the contrary, are situated closer to the auditorium and it is by utilising those rooms only that the need of expanding the auditorium and providing proper entrance to the auditorium can be accomplished. The counsel submitted that first sentence in the second paragraph at page No.2 of Annexure A1 is the result of proper communication between the landlord

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RCR. 264/06

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and his counsel who authored Annexure A1.

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As a last plea, Mr.Nias submitted that two rent control petitions relating to other tenants were finally dismissed and the landlord has become obliged to institute fresh proceedings for evicting those tenants. According to the learned counsel, those proceedings are likely to take at least three years for conclusion and hence at least three years time be granted to the revision petitioner in case this court is not inclined to allow the rent control revision.

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The result is that revision petition fails. The Execution Court is directed to keep in abeyance proceedings for delivery till 31/1/2012 subject to the following conditions;

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The revision petitioner shall file an affidavit within one month from today before the Execution Court undertaking to give peaceful surrender of the building on or before 31/1/2012 and undertaking further that arrears of rent if

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RCR. 264/06

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any as on date will be discharged within one month from today and further that occupational charges at the rate finally fixed by the Fair Rent Court shall also be paid without fail.

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The petitioner will get the benefit of time granted above, only if he files the affidavit on time.

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(PIUS C.KURIAKOSE, JUDGE)

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(N.K. BALAKRISHNAN, JUDGE)

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ksv/dpk-

P.K.Saibunniza v. M/S.Malabar Pioneer Hosiery Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

P.K.Saibunniza v. M/S.Malabar Pioneer Hosiery Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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