IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RCRev..No. 421 of 2011() ------------------------ R.C.A. NO.129/07 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE IN RCP NO. 176/2006 OF RENT CONTROL COURT, KOZHIKODE. REV.PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------- P.C.JAYARAMAN, S/O.KARUNAKARA MENON, AGED 60 YEARS, RESIDING AT ANJALI, NELLIKODE AMSOM DESOM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ MALLARKANDY SMITHA, D/O.SADANANDAN, RESIDING AT MALLARKANDI HOUSE, YMCA CROSS ROAD, KASABA VILLAGE, KALATHINKUNNU AMSOM DESOM, CALICUT POST, KOZHIKODE-673 001. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ R.C.R.No. 421 OF 2011 ------------------------ Dated this the 8th day of November, 2011 O R D E R Harilal, J. The judgment, confirming the order passed by the Rent Controller/Munsiff - I, Kozhikode in RCP.No.176/2006, passed by the Rent Control Appellant Authority, Kozhikode in RCA No.129/2007 is challenged in this revision petition. The revision petitioner/tenant was the appellant before the Appellate Authority and the respondent before the Rent Controller. The petition was filed under Section 11(2)(b), 11(3) and 11 (4)(ii) of the Kerala Buildings (Lease & Rent Control) Act 1965. The need projected for eviction is that the respondent/landlady needs the petition schedule building for starting a tailoring and fancy shop. The landlady completed age of 45 years and she is depending for her livelihood on the income of her father who is a retired engineer only. Her parents were ailing due to terminal deceases R.C.R.No.421/2011 2 and she has no other source of income. 2. The revision petitioner/tenant filed a counter contending that the bona fide need alleged in the rent control petition is false and only ruse to evict him. Further it is contended that the landlady's father is getting pension and he has bank deposits also. There is no necessity for the landlady to eke out her livelihood by conducting a tailoring and fancy business in the petition schedule building and she has no intention to do such business. The upstairs portion of the landlady's house is rented out and her father is getting good amount as rent. Further it is contended that landlady's father has other sources of income also. 3. The landlady was examined as PW1 and the tenant was examined as RW1. Exts.A1 to A4 were marked for the landlady and Exts.B1 to B7 series were marked for the tenant. A commission report was also marked as Ext.C1. Even though the petition was filed under Section 11(2)(b) and 11 (4) (ii) also, at the time of trial, petition under Section 11(2)(b) was not pressed and there was no cross appeal against the dismissal of the relief under section 11 (4)(ii) and the findings attained finality. R.C.R.No.421/2011 3 4. We have heard Sri. P.A. Harish, the learned counsel for the revision petitioner. The learned counsel submits that the court below erred in holding that the need alleged by the landlady is bonafide. The landlady is frail and unhealthy so as to conduct a tailoring unit and a fancy shop. Merely the fact that the landlady came to the box wearing a dress stitched by her when she gave evidence before the court, is not sufficient to prove her skill and capacity to conduct a tailoring shop. No document is seen produced to show her skill of tailoring. The counsel further submits that the revision petitioner has succeeded in proving the ingredients of second limb of second proviso to subsection (3) of Section 11 of the Kerala Building (Lease and Rent Control) Act. The court below ought to have held that no suitable buildings are available in the locality. The court below went wrong by believing Ext.C1 commission report. 5. We have given anxious consideration to the submissions made by the learned counsel. The landlady- tenant relationship is admitted. Then the only question to be considered is whether the findings of the court below are R.C.R.No.421/2011 4 vitiated by illegality, impropriety and irregularity. To answer this question, the first point to be considered is whether the respondent-landlady bonafide needs the petition schedule shop room as claimed. Both the courts below concurrently found that the need projected in the Rent Control Petition is a bonafide one. The landlady examined as PW1, but nothing brought out to discredit the need spoken to by the landlady in the box. Considering the age of the petitioner, it is too late to find out a permanent source of income. According to the revision petitioner also she is not healthy. Tailoring is a skilled work for which certificate is not essential to get customers, if ability is proved. Therefore, lack of tailoring certificate has no significance at all. There is nothing to suspect the need put forward by the petitioner. It can be taken to be genuine and bonafide in the absence of any other circumstance showing any malafide or ulterior motive. We have considered the totality of circumstances. We also confirm the finding that the bonafide need projected by the landlady is natural, real, sincere, honest and not a desire or pretense. R.C.R.No.421/2011 5 6. Then the point to be considered is that whether the tenant is entitled to get protection under the Provisos to Sub Section (3) of Section 11 of the Buildings (Lease & Rent Control) Act. The tenant has no case that the landlady is in possession of other vacant rooms. His case is that the landlady can conduct the proposed business in her residential house. According to the tenant the landlady's house is situated 50 meters away from the main road. So, we find that the residential house is not suitable for the tailoring and fancy shop. Moreover the tenant has no right to dictate the terms of the proposed business of the landlady intended to be conducted in her own building. Thus nothing wrong in finding that the bonafide need is not hit by 1st proviso. 7. The tenant claimed protection under the second proviso to section 11 (2)(b). It is settled law that the burden is on the tenant to prove both limbs of IInd proviso. Even though the courts below found the first limb of the second proviso in favour of the tenant, the second limb of the second proviso was not found in favour of the tenant. On gong by the Judgment it could be seen that the tenant admitted the availability of the R.C.R.No.421/2011 6 alternate buildings in the locality to shift his business. But RW1 has not stated why rooms, which are available in the locality, are not suitable for his business. There is also no evidence to show that the rent demanded for the rooms is very high which he cannot afford under any circumstances. The evidence of RW2 also was not sufficient to hold that the rooms are not available in the locality to shift the business of RW1. Though RW2 stated that he has made enquiries regarding the availability of rooms for shifting the business of RW1, he could not say about the details of persons with whom he allegedly made enquiries. The IInd proviso to sub section (3) of Section 11 is conjunctive. Thus, the tenant miserably failed to discharge the burden to get the protection under the second proviso to sub section (3) of Section 11. Therefore, the tenant is not entitled to get protection. On going by the findings, it could be seen that there is no illegality, irregularity or impropriety in the judgments passed by the Courts below concurrently. Considering the limited jurisdiction provided under Section 20 of the Buildings ( Lease & Rent Control ) Act, we are not inclined to re appreciate the R.C.R.No.421/2011 7 evidence. Hence, the revision fails and will stand dismissed. PIUS C.KURIAKOSE,JUDGE K.HARILAL,JUDGE. dpk