IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 RCRev..No. 452 of 2005() ------------------------ RCA.123/2004 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.136/2003 OF RENT CONTROL COURT, VADAKARA .................... REVISION PETITIONER/RESPONDENT/RESPONDENT: ---------------------------------------- M.P. RAMESAN, 50 YEARS, S/O. SANKARAN, MEETHALE PERATIYETH HOUSE, CHORODE AMSOM, ERAPURAM DESOM, VADAKRA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S)/APPELLANTS/PETITIONERS: ------------------------------------------------- 1. JAYANTHI, D/O. GOPALAN & W/O. BHARATHAN (LATE), 42 YEARS, RESIDING AT INDU NIVAS, P.T. ROAD, VADAKARA, VADAKRA AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. SREELAKSHMI, D/O. BHARATHAN (LATE) 22 YEARS, RESIDING AT INDU NIVAS, P.T. ROAD, VADAKARA, VADAKRA AMSOM, VADAKRA DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 3. RAGHURAM, S/O. BHARATHAN (LATE) 18 YEARS, RESIDING AT INDU NIVAS, P.T. ROAD, VADAKRA, VADAKRA AMSOM, DESOM AND TALUK, KOZHIKODE DISTRICT. ADV. SRI.BIJU ABRAHAM FOR R1 TO 3 SRI.B.G.BHASKAR FOR R1 TO 3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO. 2352 OF 2005 DISMISSED SD/- PIUS C.KURIAKOSE, JUDGE. 14-12-09 SD/- K.SURENDRA MOHAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 452 of 2005 ``````````````````````````````````````````````````````` Dated this the 14th day of December, 2009 O R D E R Pius C. Kuriakose, J. The tenant is in revision being aggrieved by the judgment of the Rent Control Appellate Authority finding that an order of eviction is liable to be passed against him on the ground under sub-section (3) of Section 11. In fact, the only issue which came up for consideration before the Rent Control Appellate Authority was whether the revision petitioner is entitled to the protection of sub-section (3) of Section 11. The finding that the need projected by the landlady under sub-section (3) of Section 11 was a bonafide one had virtually become final even earlier. The Rent Control Court, under its order which was impugned before the appellate authority, after finding that the need is bonafide, did not become inclined to order eviction in view of its finding that the tenant is entitled to the protection of the second proviso to sub- section (3) of Section 11. In the impugned judgment, the appellate authority has reversed that finding and ordered eviction. RCR.452/05 : 2 : 2. In this revision filed under Section 20, various grounds have been raised challenging the finding of the appellate authority that the tenant is not entitled to the protection of the second proviso to sub-section (3) of Section 11. 3. Sri.C.Jayachandran, learned counsel for the revision petitioner, addressed us extensively on all those grounds. Sri.B.G.Bhaskar, learned counsel for the landlady, would resist all the submissions of Sri.C.Jayachandran. 4. We have considered the rival submissions. We have very carefully gone through the judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court, which was interfered with by the appellate authority under that judgment. 5. It is trite by two Full Bench decisions of this Court that the burden of establishing that a tenant is entitled for the protection of the second proviso to sub-section (3) of Section 11 is on the tenant himself. It is equally trite that the two ingredients of the second proviso to sub-section (3) are in the conjunctive and that in order that a tenant is given the protection of the second RCR.452/05 : 3 : proviso to sub-section (3) of Section 11, one will have to establish not only that he is depending mainly on the income that he derives from the business carried on in the building, which is the subject matter of the eviction proceedings, but also to prove that other suitable buildings are not available in the locality for him to shift his business. 6. We notice from the judgment of the appellate authority that the appellate authority has made a thorough reappraisal of the evidence adduced by the parties in the context of the second proviso to sub-section (3) of Section 11. The appellate authority noticed that apart from the 12.4 Ares of garden land belonging to the tenant in his own name, the tenant was a sharer to other immovable properties left behind by his father. That authority noticed that though the tenant had produced some evidence as to what was the income that the tenant derives from the business carried on in the petition schedule premises, there was no acceptable evidence as to what was the income that the tenant was deriving from the property covered by Ext.B3 and the other properties which devolved upon him. When it is shown that a RCR.452/05 : 4 : person has income from several sources, it is for that person, if he is a tenant claiming protection of the second proviso to sub- section (3) of Section 11, to place evidence pertaining to income from all those sources and prove before the Court that the income from the tenanted premises is the main income. Coming to the second ingredient of the second proviso to sub-section (3), it was noticed by the appellate authority that the tenant did not dispute the fact that in building by name J.T. Tourist Home, vacant rooms were available. But the tenant's version was that on enquiry with the owner of the J.T.Tourist Home, he was informed that the rooms therein were not meant to be let out. Significantly, the owner of J.T.Tourist Home is not examined as a witness. It became evident that a multi storied building was available near B.Ed.Centre, apart from another new building constructed at a place where Taj building previously stood. The tenant had not made any serious enquiry with the owners of those buildings as to whether rooms are available in those buildings and whether the owners will be prepared to let out those buildings to him. The appellate authority also noticed that the tenant has not made any RCR.452/05 : 5 : serious enquiry regarding the availability of other buildings situated in front of Keerthi Talkies, Asha Hospital, Town Hall near KVR Motors etc. The appellate authority would also notice that even the Rent Control Court was of the opinion that rooms were available in the above buildings but the Rent Control Court took the view that the locality as envisaged by the second limb of the second proviso to Section 11(3) is a very small area and many of the buildings shown to be vacant are situated outside the locality. But, the appellate authority has rightly taken the view that locality does not mean the immediate vicinity of the petition schedule building. 7. In this jurisdiction under Section 20, this Court is not expected to substitute factual conclusions by this Court for such conclusions of the appellate authority which under the statutory scheme, is the final court on facts. This Court enquiry is only as to whether the judgment of the appellate authority is vitiated by any illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction under Section 20. Having scanned the judgment of the appellate authority, we are of the view that there is RCR.452/05 : 6 : no warrant for invocation of the revisional jurisdiction for correcting the findings of that authority which are to the effect that the tenant had failed in proving that his satisfaction over all the ingredients of the second proviso to Section 11(3). 8. The result of the above discussion is that the RCR necessarily has to fail. However, considering the last request of Sri.Jayachandran that a reasonably long period be given to the revision petitioner to surrender the premises, even as we dismiss the RCR confirming the order of eviction passed under Section 11 (3), we direct the execution court not to order and effect delivery of the petition schedule building to the respondents till 30-06-2010 subject to the following conditions:- The revision petitioner shall file an affidavit before the execution court within three weeks from today, undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 30-06-2010. Through the very same affidavit, it should be undertaken by him that arrears of rent, which fallen due in respect of the building in question after the RCP was instituted(less any amount paid during the pendency of the RCP) RCR.452/05 : 7 : within one month from the date of filing of the affidavit. It will also be undertaken through the very same affidavit that occupational charges at the current rent rate(Rs.750 per mensem) will also be paid as and when the same falls due till 30-06-2010. Once such an affidavit is noticed by the execution court, the Execution Petition will be adjourned to 01-07-2010. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks