IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 RCRev..No. 403 of 2006() ------------------------ RCA.17/2002 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.70/1999 OF RENT CONTROL COURT, KANNUR .................... REVN. PETITIONER/APPELLANT/PETITIONER ---------------------------------------------------------- NALAMBRATH SATHYAVATHI, D/O. SARADA AMMA, AGED 59 YRS, HAVING NATIVE PLACE AT PUZHATHI AMSOM DESOM, KAKKAD, KANNUR, NOW RESIDING AT FACT NAGAR, TRIPUNITHURA. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------- THEKKEPURAYIL PREMARAJAN, S/O. GOVINDAN, AGED 48 YEARS, AJANTHA SAFE WORKS, MUZHATHADAM WARD, KANNUR. ADV. SRI.V.PREMCHAND THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13-8-2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------ RCR. No. 403 of 2006 ----------------------------------------------- Dated this the 13th day of August, 2009 O R D E R Pius C. Kuriakose, J. The landlady is in revision and she challenges the order of the Rent Control Court and the judgment of the Appellate Authority declining eviction. The landlady sought for eviction on the ground of bona fide own occupation under sub section 3 of Section 11 and tenant's possession of another building under clause-3 of Sub section 4 of Section 11. The eviction sought under Section 11(4)(iii) was declined concurrently by the Rent Control Court and the Appellate Authority. 2. Having gone through the order of the Rent Control Court and the judgment of the appellate authority, we find that the finding of the Rent Control Court and the Appellate Authority that the landlord was unable to prove that the tenant has acquired possession of another RCR. N0. 403/06 -2- building in the same town or village sufficient for his requirements is founded on evidence. We do not find any illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction under Section 20 for correcting the decision of the authority to the extent the same pertains to Section 11(4)(iii). The Rent Control Court as well as the Appellate Authority, concurrently found that the need and the claim projected by the landlady under Sub Section 3 of Section 11 that she wants to occupy the petition schedule building for the conduct of garment making business is bona fide. The authorities, however, would hold that the tenant is entitled to the protection of the second proviso to sub-section (3) of Section 11, it was held by the authorities that the tenant is depending mainly on the income which he derives from the business carried on in the petition schedule building for his livelihood. It was also held that other suitable buildings are not available in the locality for the tenant to RCR. N0. 403/06 -3- shift his business. Challenging the order of the appellate authority, the landlady has come up in revision. 3. Sri.V.R.K.Kaimal, the learned counsel for the revision petitioner would submit at the very outset that the revision petitioner/landlady is more aggrieved by the finding of the authorities below that the tenant is entitled to the protection of the second proviso to sub-section 3. He submitted that positive evidence in the form of Exts.A5 and A5(a), certified copies of the Property Tax Assessment Register, pertaining to the building situated in the locality was produced. Mr.Kaimal submitted that the entries in those documents are to be accepted in terms of Section 26 of the Rent Control Act as proof of the facts recorded therein. Accordingly, drawing our attention to the judgment of a Division Bench of this Court in Kochappan Pillai v Chellappan (1976 KLT 1) and the judgment of the Full Bench in Francis v Sreedevi Varassiar (2003(2) KLT 230). Mr.Kaimal argued that the RCR. N0. 403/06 -4- Rent Control Court and the Appellate Authority have wrongly cast the burden to prove the tenant's eligibility for the protection of second proviso to sub section (3) on the landlady. Mr.Kaimal also submitted that the judgment in Francis v Sreedevi Varassiar (2003(2) KLT 230) has been approved by the Supreme Court by judgment in Kunhamma v Akkali Purushothaman (2007(3) KLT 599 S.C.). According to him, the burden to show that the tenant satisfies both the ingredients of the second proviso of sub-section (3) is on the tenant only. 4. All the above submissions of Mr. Kaimal were forcefully resisted by Mr.Premchand. He drew our attention to a more recent judgment of this Court in Thanuja Sunderdas v Sisirkumar Raj (2008(4) KLT 241 (F.B). Mr.Premchand submitted that it has now been finally held by the above Full Bench judgment that once the tenant affirms that he satisfies the two ingredients of the second proviso to sub-section (3) of section 11, the RCR. N0. 403/06 -5- onus of proof will shift to the landlord and under such a situation, it is the landlord's burden to establish that the tenant does not depend mainly on the income derived from the business carried on in the RCP schedule premises for his livelihood and that other suitable buildings are available in the locality for the tenant to shift his business to. 5. We have anxiously considered the rival submissions addressed at the Bar in the light of the relevant statutory provision, viz., second proviso to sub-section (3) of section 11 of Act 2 of 1965 and the judicial precedents to which our attention was drawn by counsel on either sides. We have also made a survey of the evidence adduced in the case to the extent the same pertains to the tenant's eligibility for the protection of the second proviso to sub-section (3) of section 11. The judgment of the Division Bench of RCR. N0. 403/06 -6- this Court in Kochappan Pillai v. Chellappan, (1976 KLT 1) is a leading light on the crucial question which arises in this case - Who has the burden to establish that the two ingredients of the second proviso to sub- section (3) of Section 11 are satisfied in this case and whether the two ingredients are in the disjunctive or in the conjuctive?. It was held in the above decision without any room for ambiguity that since the proviso carves out an exception to the main provision it is for the tenant who claims protection of the proviso to plead and prove that both the ingredients which are in the conjunctive are satisfied in his case, so that even when the landlord proves that his need for own occupation under subsection (3) of Section 11 is bona fide, an order of eviction will not be passed in his favour. A Full Bench of this Court examined the position threadbare in Francis v. Sreedevi Varassiar RCR. N0. 403/06 -7- (2003(2) KLT 230. It was reiterated by that judgment that since the second proviso carves out an exception to the rule embodied in the main provision 11(3) the burden of proving the relevant facts lies on the tenant who has to prove not only that he is depending mainly on the income derived from the trade or business carried on the building for his livelihood but also that a suitable alternative accommodation is not available. The Full Bench held that while adjudging the suitability of the alternative accommodation, the court shall not insist on a mathematical equivalence of the area or rent. The only thing that the court has to see is that the tenant should be able to carry on his existing activity in the new premises. The area may even be less. The rent should be almost equal to that which the premises in dispute would fetch at the relevant time. The Full Bench goes on to hold “It RCR. N0. 403/06 -8- may happen that a building as old as that occupied by the tenant is not available. The rent for the new building is likely to be higher. In such a situation, the court shall be entitled to consider – Can't the tenant pay the higher rent at all? Can he do his business in a lesser area? The mere fact that the rate of rent is higher shall not be enough. The relief shall be denied to the landlord only when it is found that the tenant cannot under any circumstances, pay for or carry on his business in the new premises”. Later another Full Bench of this Court in Thanuja Sunderdas v. Sisirkumar Raj (2008 (4) KLT 241 (F.B.) considered the issue again. The later Full Bench also approved the earlier Full Bench and held that the burden of proof in the context of the second proviso to subsection (3) of Section 11 is always on the tenant though the onus to discharge the burden of proof RCR. N0. 403/06 -9- would keep on shifting during course of trial. We are extracting hereunder the words of the Full Bench in Thanuja Sunderdas's case. “To prove the exception carved out in the second proviso to S. 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 fail. 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 proof becomes academic. No straitjacket formula with regard to the time when onus to prove shifts can be laid and it all depends on the facts and circumstances of each case, where a particular party has led sufficient evidence thus shifting the onus to prove on a particular issue upon the adversary.” It is necessary to notice the decision of the Supreme Court in a Kerala case – Kunhamma v. Akkali Purushothaman (2007(3) KLT 599 (SC). Significantly, approving the RCR. N0. 403/06 -10- judgment of the Full Bench in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (F.B.) the Supreme Court lays down in very clear terms that 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 is no other suitable building to which he could shift his business. We have appreciated the evidence adduced by the parties to the extent the same pertains to the tenant's eligibility for protection of the second proviso to sub-section (3) of Section 11 and we are of the view that in the teeth of Exts.A5(a) and A5(b) which are property tax assessment registers relating to vacant rooms available in the locality – documents of the nature envisaged by section 26 of Act 2 of 1965 the onus was very heavy on the tenant to prove by examining owners of A5(a) and A5(b) buildings that those rooms are not available or by adducing evidence in the nature of reports by local inspection commissioners RCR. N0. 403/06 -11- that those rooms are not suitable for the tenant's purpose. In fact, the oral evidence of the tenant is to the effect that he has not made any enquiry in the locality regarding the availability of vacant buildings for him to shift. Thus the available evidence conclusively shows that the tenant has miserably failed in establishing that he satisfies the second ingredient of the second proviso to sub-section (3) of Section 11. Since both the ingredients are in the conjunctive it has to be held that the tenant is not entitled to the protection of the proviso even if we have to approve the finding of the courts below that the tenant has satisfied the first ingredient of the second proviso. 6. Challenging the concurrent findings of the Rent Control Court and the Appellant Authority that the need and the claim projected by the landlady for occupying the petition schedule building for conduct of garment making business is bona fide it was submitted by Mr.Premchand, RCR. N0. 403/06 -12- counsel for the tenant that the real motive of the landlady is either to let out the building to fresh tenants on much higher rent or to dispose of the building for an attractive price. Taking exception to the above allegation Mr.V.R.K.Kaimal, counsel for the revision petitioner landlady submitted that the landlady will be willing even to suffer orders restraining her from selling or letting out the building though sufficient safeguards have been provided under sub-section (1) of Section 11 to protect the interest of the tenant. 7. We will at once notice that we do not find any infirmity about the finding concurrently entered by the courts below that the need projected by the landlady under sub-section (3) of Section 11 is bona fide. Nevertheless, in view of the apprehensions voiced by the learned counsel for the tenant and the stand taken by the learned counsel for the landlady we are inclined to incorporate additional safeguards for protecting the interest of the tenant. RCR. N0. 403/06 -13- 8. The result of the above discussion is that the RCR will stand allowed. It is found that the tenant is not entitled to the protection of the second proviso to sub-section (3) of Section 11. Hence an order of eviction is passed against the tenant under subsection (3) of Section 11. The tenant is directed to file an affidavit before the execution court or Rent Control Court as the case may be undertaking to give peaceful surrender of the building to the landlady on or before 28-2-2010 and also to discharge arrears of rent if any, and to pay occupational charges at the current rent to the landlady till such time his actual surrender of the building is made. The tenant will be entitled for benefit of time granted herein above only if he files affidavit on or before 30th September, 2009. The landlady is restrained from selling the building which is subject matter of the rent control petition for a period of two years from now. She is similarly restrained from letting out the building to anybody RCR. N0. 403/06 -14- for a period of three years from now. The landlady is reminded about the statutory consequences provided for in sub-section 12 of Section 11 in case she does not occupy the building for the purpose projected by her in the rent control petition. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE css/ksv/-