IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 RCRev..No. 347 of 2005() ------------------------ RCA.58/2004 of D.C. & SESSIONS COURT,KOZHIKODE RCP.142/2001 of ADDL.M.C.,KOZHIKODE-I .................... : REV.PETITIONERS/RESPONDENTS IN RCA: ---------------------------------------------------- 1. T. THANUJA SUNDERDAS, W/O. LATE N.V. SUNDERDAS, MOHALAYAM, KOTTOOLI AMSOM DESOM, KOZHIKODE. 2. DEEPA, D/O. LATE N.V. SUNDERDAS, MOHALAYAM, KOTTOOLI AMSOM DESOM, KOZHIKODE, REPRESENTED BY NEXT FRIEND 1ST REV.PETITIONER K. THANUJA SUNDERDAS. 3. SHILPA (MINOR), D/O. LATE N.V. SUNDERDAS, MOHALAYAM, KOTTOOLI AMSOM DESOM, KOZHIKODE, REPRESENTED BY NEXT FRIEND 1ST REV.PETITIONER K. THANUJA SUNDERDAS. 4. VISHNU (MINOR) S/O. LATE N.V. SUNDERDAS, MOHALAYAM KOTTOOLI AMSOM DESOM, KOZHIKODE, REPRESENTED BY NEXT FRIEND 1ST REVE.PETITIONER K. THANUJA SUNDERDAS. BY ADV. SRI.A.SUDHI VASUDEVAN SRI.RAHUL SHENOY RESPONDENTS: ------------- 1. SURYAMKANDI SISIRKUMAR RAJ, S/O. RAJARATHNAM, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. 2. SURYAMKANDI SREEMALKUMAR RAJ S/O. RAJARATHNAM, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. 3. SURYAMKANDI NIRAMLAKUMAR, S/O. RAJARATHNAM, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.P.BALASUBRAMANYAN FOR R2 SRI.NIRMAL. S FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 7/08/2008, THE COURT ON 18/8/2008 PASSED THE FOLLOWING: ORDER IN IA NOS.2467/05 & 2652/07 DISMISSED. 18/8/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.347 of 2005 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of August, 2008. O R D E R Ramachandran Nair, J. The petitioners herein are the tenants in a petition for eviction filed under Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (herein after referred to as 'the Act'). The Rent Control Court allowed eviction of the premises – a non-residential building - under Section 11(3) of the Act and disallowed the claim for eviction under Section 11(4)(i) of the Act. The appeal filed by the revision petitioners herein before the Appellate Authority having been dismissed, they have approached this court by filing this revision petition under Section 20 of the Act. 2. The respondents herein who are the landlords, sought eviction under Section 11(3) of the Act on the ground that their father Rajarathnam wants to start a stationery business and for the said purpose they are in need of the petition schedule building. It was contended that for starting the said business, the petitioners or their father have no other buildings in their possession. The tenants mainly contended that there are no other buildings RCR 347/2005 -2- available in the locality for their occupation if they are evicted and there are no other income also for them. They denied the allegation of subletting. The bonafide need pleaded for conduct of business by the father of the landlords was also disputed. 3. When the matter was heard on an earlier occasion, a Division Bench of this court as per a detailed order dated 6.9.2005 referred the matter for being considered by a Full Bench. The question that was referred before the Full Bench related to the burden of proof to be discharged by the tenant under the second proviso to Section 11(3) of the Act. The matter was considered in the light of the decisions of two Division Benches of this court in Kochappan Pillai v. Chellappan (1976 KLT 1) and Sadanandan v. Kunheen (1991 (2) KLT 628). The Full Bench answered the reference as per order dated 17.7.2006 and thus the matter has come back for being heard on the merits. 4. Learned counsel for the petitioners mainly raised two contentions: Firstly, that the claim under Section 11(3) has not been properly proved by the landlords in the evidence, in that there is no evidence to show that the father is a dependent on the landlords for doing business in the petition schedule building. It is contended that the landlords have not entered the RCR 347/2005 -3- box to depose the elements required for getting eviction and the only evidence is that of the father who was examined as P.W.1, which according to the learned counsel, is insufficient. As regards the benefit of the second limb of the second proviso to Section 11(3) of the Act is concerned, it is contended that the tenant has in his proof affidavit asserted that there are no other suitable buildings available in the locality or in the city for the purpose of doing business and in the absence of any cross-examination and other contra evidence the tenants' case ought to have been found as proved and the contrary view taken by the Appellate Authority on that aspect is not correct. 5. Before going into the merits of these contentions, we may have to advert to the findings rendered by the Full Bench in the order answering the reference, since learned counsel for the petitioners relied upon the decision of the Division Bench in Sadanandan's case (supra) which was considered by the Full Bench along with other decisions on the question of burden of proof for the purpose of the second proviso to Section 11(3) of the Act. 6. After considering the rival contentions in relation to the question referred, it was held by the Full Bench as under in para 5:- “It is settled proposition of law that the burden to prove an exception always lies on the party who claims the same and further that it has to RCR 347/2005 -4- be taken most strongly against the party for whose benefit it is made and it is for him who sets it up to establish it. This burden of proof would never shift even though the onus of the burden of proof in civil matters would keep on shifting from one party to the other depending upon the facts and circumstances of each case. .......................................Suffice it, however, to say that, to prove the exception carved out in the second proviso to Section 11(3) of the Act of 1965, the burden of proof is always on the tenant. The onus to discharge the burden of proof would keep on shifting during the course of trial. There is a marked distinction between burden of proof and onus of proof. Whereas burden to prove the exception is always upon the tenant and it never shifts, the onus of proof will shift. Once the parties get their evidence recorded, the burden of proof is important only where by way of not discharging the same put upon that party, it must eventually fall. However, as mentioned above, where the parties have joined the issue and have led evidence and the same can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic............” 7. The arguments of the learned counsel for the petitioners have to be examined in the light of the above binding decision of the Full Bench. The evidence in the case supports the case pleaded under Section 11(3) of the Act. A reference to the pleadings of the parties will be of assistance here. In the petition for eviction, it was clearly pleaded by the landlords in para 6 RCR 347/2005 -5- that the schedule room is required for the purpose of conducting a stationery business for their father who has retired from service from the Malabar Marketing Society and who has no other avocation in life. It is clearly averred that there are no other buildings either in the possession or enjoyment of their father or by them for starting the said business. It is further averred that their father Shri Rajarathnam solely depend on his children, the petitioners for getting a shop room for conducting business. In the counter statement filed by the tenants, the said averment is not specifically denied. While referring to the pleas raised in para 6 of the petition for eviction, the tenants were confining on two points, namely: that “the petitioners and the father of the petitioners are having many landed properties and many other business. Petitioners are very rich people. Petitioners are in possession of other shop rooms. The above said Rajarathnam did not have the health or intention to start a stationery business in the petition schedule shop.” Therefore, the sum and substance of the contention as noticed above, will not show that the specific averment made by the landlords that Rajarathnam is depending on his sons for getting a shop room for conducting his business, is not denied. Learned counsel for the petitioners submitted that since none of the landlords have chosen to RCR 347/2005 -6- enter the box and speak in support of the pleas raised, the sole evidence of their father Shri Rajarathnam who was examined as P.W.1, cannot be accepted. In the proof affidavit filed by P.W.1, it has clearly been stated that he retired from Malabar Marketing Society and he has no other job and is not getting any pension and he has no other income except the income he gets from the property. It is also stated that they are not in actual possession of any other building to conduct business and all rooms are in the possession of tenants. In the cross examination, the challenge is made only on the bonafide need pleaded, etc. and not in respect of the aspect whether the landlords have any other building for the use of their father. Thus, as regards the dependency of the father on the landlords, nothing was put to him. He has explained in cross examination that the landlords could not give oral evidence since they were not in station. There is no further challenge on this aspect in his cross examination. Therefore, the argument of the learned counsel for the petitioners, has to be examined in the light of the above evidence. 8. Both the authorities below have found that the father was having no avocation in life after his retirement and he is not getting any pension also. The Rent Control Court found in para 17 of the order, after referring to the above evidence and the pleadings, that there is a specific averment RCR 347/2005 -7- that as far as a building for starting business is concerned, P.W.1 is dependent of his children and the said fact is not disputed by the respondents in the counter statement. It is also found that the lack of any experience on the part of P.W.1 cannot be a ground to doubt the bonafides of the plea. After referring to the contention that P.W.1 has got landed properties, the court observed that even if a person has got properties of his own, it does not prevent him from starting a business of his own. Coupled with the fact that there are no vacant buildings in their possession to start the business of P.W.1, the court was of the view that the need urged by the landlords is genuine and bonafide. This finding has been affirmed by the Appellate Authority in the impugned judgment. The Appellate Authority has considered the matter in detail. In the light of the evidence given by P.W.1, the Appellate Authority was of the view that the non-examination of the landlords cannot be said to be fatal. The question was only whether his evidence could be accepted. It was found that in the absence of anything to show that the need pleaded by the respondents and spoken to by P.W.1 is oblique and ill-motivated, the Rent Control Court was correct in holding that the need pleaded is genuine and bonafide. The oral evidence of P.W.1 has been discussed in detail by the Appellate Authority in para 6 of the judgment. We find no reason to interfere with the factual finding rendered RCR 347/2005 -8- by the authorities below. In exercise of the powers of revision, this court cannot re-assess the evidence and substitute its own views to that of the authorities below. At any rate, it is not shown that the view taken is so perverse warranting interference. The question is whether the evidence to prove bonafide need is cogent and convincing. In that view of the matter, we hold that P.W.1 is competent to speak about the bonafide need pleaded and in the absence of anything in the counter statement filed by the tenants, specifically denying the averment in the Rent Control Petition that he is depending on the landlords for getting the room vacant for doing the business, we are of the view that the argument raised by the learned counsel for the petitioners that there should have been oral evidence on the part of the landlords themselves on that aspect, cannot hold good. We reject the said contention and affirm the finding rendered by the authorities below that the landlords have established the grounds pleaded under Section 11(3) of the Act and the bonafide need pleaded is genuine and honest. 9. The next contention to be considered is regarding the sufficiency of the evidence on the part of the tenant as regards the second limb of the second proviso to Section 11(3) of the Act. The evidence tendered by the tenants is that of R.W.1. In the proof affidavit, the crucial statement is to the effect that “ no other suitable buildings are available in the locality or in RCR 347/2005 -9- the city for the purpose of conducting the business.” The contention raised is that the same is sufficient for discharging the burden of proof on the part of the tenants especially in view of the fact that there has not been any challenge in the cross examination also. Reliance is placed on Sadanandan's case (supra). Our attention was invited to the following observations in para 7 of the judgment: “In fact since the proviso works as an exemption the person who desires to get the exemption has to prove the inte-grants of the proviso and to that extent there cannot be any doubt. But being a negative aspect and that too, the availability of a suitable building in the locality, the nature and quantum of evidence that has to be proved by the tenant may, in appropriate cases, be confined to a positive affirmation by the tenant before the court, that no suitable building is available in the locality not successfully challenged in Cross Examination. Then the burden shifts to the landlord since he can positively prove the fact that buildings/building are/is available.” Therefore, the contention is that the burden of proof stood discharged and hence it shifted to the landlords and as they have not discharged it by adducing any evidence, the tenants are entitled for the benefit of the said limb of the second proviso. It is pointed out that the Appellate Authority has held that they are entitled for the benefit of the first limb of the proviso. RCR 347/2005 -10- 10. We have already adverted to the conclusions arrived at by the Full Bench on the legal aspect regarding burden of proof. Learned counsel for the respondents pointed out that in Sadanandan's case (supra), their Lordships have not laid down any principle as such which is evident from the last sentence in the said para where their Lordships have made it clear that in that case “this question may not be of much importance and we leave the matter there.” In fact, the said decision was relied upon by the tenants before the Division Bench earlier and the Division Bench referred the matter to the Full Bench in the light of the heavy reliance placed by the learned counsel for the petitioners on the said decision. The Full Bench has elaborately considered the matter and ultimately after referring to para 7 of the judgment in Sadanandan's case (supra), their Lordships held that crucial observations made in that judgment were only by way of an illustration. It was further noticed that actually the question which arose in that case related to the first limb of the second proviso to Section 11(3) of the Act. We extract the following findings rendered by the Full Bench in this regard: “The facts in Sadanandan v. Kunheen would clearly manifest that the dispute between the parties pertained to the first limb regarding tenant depending for his livelihood mainly upon the income derived RCR 347/2005 -11- from the business carried in the building in question. The dispute between the parties did not pertain to the second limb of the second proviso to Section 11(3) of the Act. The observation contained in paragraph 7 that “the nature and quantum of evidence that has to be proved by the tenant may, in appropriate cases, be confined to a positive affirmation by the tenant before the court, that no suitable building is available in the locality not successfully challenged in cross examination and then the burden shifts to the landlord since he can positively prove the fact that buildings/building are/is available” were made by way of an illustration.” In that view of the matter, we find that the learned counsel for the petitioners is not right in submitting that the observations made by the Division Bench in Sadanandan's case are so crucial that the only inference that is possible is that the tenant is entitled for the benefit of the second limb of the second proviso to Section 11(3) of the Act. In this case, the question is whether, as held by the Full Bench, there is a shifting of the onus of proof from the part of the tenants to the landlords merely because of the assertion made by the tenants in the proof affidavit. A reading of the order of the Rent Control Court shows that the said court was of the view that the first limb of the second proviso to Section 11(3) of the Act has not been established by the tenants and therefore it is not examining the second limb of the said proviso and ultimately it was held that the tenants are not RCR 347/2005 -12- entitled to get the benefit under the second proviso to Section 11(3) of the Act. The Appellate Authority has considered both limbs of the second proviso to Section 11(3) of the Act. The Appellate Authority reversed the finding of the Rent Control Court regarding the benefit of the first limb of the second proviso and the finding therein is in favour of the tenants. As regards the second limb of the second proviso, it was found that there is no evidence to show that the tenants made any effective enquiry to ascertain whether rooms are available in the locality and in the absence of that, the mere assertion in the box is not sufficient. The question is whether the said finding is correct. 11. R.W.1 has not spoken in specific terms of any enquiry made by her as regards the availability of vacant rooms sufficient to accommodate their business. The issue as regards the burden of proof, as held by the Full Bench, is clearly on the part of the tenants themselves. There is a catena of decisions holding the view that the tenant will have to prove that he is depending for his livelihood mainly on the income derived from his trade or business and that there is no other suitable building available in the locality to carry on such trade or business. Learned counsel for the petitioners submitted that in the absence of any positive evidence on the part of the landlords, the finding by the Appellate Authority that the tenants ought to RCR 347/2005 -13- have made further enquiry, cannot be sustained and no such criteria can be imposed, as the onus of proof has mainly been shifted to the landlords. 12. Learned counsel for the respondents, by placing reliance upon a recent decision of the Apex Court in Kunhamma v. Akkali Purushothaman {2007 (3) KLT 599 (SC)} contended that in the absence of any enquiry by the tenants as regards the availability of vacant rooms in the locality, a mere assertion in the box will not be sufficient and by that process it cannot be held that the onus of proof has been shifted to the landlords. In Kunhamma's case (supra), the Apex Court has considered in detail the requirements of the second proviso to Section 11(3) of the Act. Their Lordships held in para 7, after referring to the Full Bench decision of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) as follows: “The onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business. We have perused the evidence on this aspect and are of the opinion that this onus has not been discharged and on the contrary the evidence shows that he was not using the premises for his business as he was an autorickshaw driver and, had, in addition, made absolutely no attempt to ascertain the availability of another suitable building to which he could shift his business as his statement in Court was that it was not possible to relocate on RCR 347/2005 -14- account of the high rents without giving any details of the enquiry etc. that he might have made in this regard.” (emphasis supplied by us.) Their Lordships have clearly laid down that the tenant therein had not made any enquiry as to the availability of another suitable building to which he could shift his business and the details of enquiry that he might have made, have also not been disclosed. Thus, the contention raised by the tenants relying upon the second limb of the second proviso was rightly rejected. 13. The second proviso to Section 11(3) of the Act reads as follows: “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.” To invoke the benefit of the second limb of the proviso, the tenant will have to prove that there is no other suitable building available in the locality for the tenant to carry on the trade or business he is engaged in. It has been held that the proviso is an exception to the rule embodied in Section 11(3) of the Act. Actually, the tenant is seeking the protection under the proviso and necessarily he must prove the facts by adducing cogent evidence to RCR 347/2005 -15- enable him to claim the exemption. We will now advert to the decision of the Division Bench in Kochappan Pillai v. Chellappan (1976 KLT 1). While considering the question of burden of proof, their Lordships held in para 7, after analysing the said provision in detail, in the following terms: “The use in the second proviso to Section 11(3) of the Act of the words, “there is no other suitable building” indicates that it is not proof of availability but proof of just the opposite that is insisted on. At first blush it may appear that there would be practical difficulty to prove it, being negative in form. But really it is not so. It is capable of easy and positive proof by examination of the Accommodation Controller or such other effective means.” Their Lordships held further in para 8 that “an exception has to be taken most strongly against the party for whose benefit it was made and it is for him who sets it up to establish it.” Therefore, the question is whether a mere assertion