IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRP.No. 2822 of 2002() ---------------------- RCA.86/1998 of D.C. & SESSIONS COURT,KOZHIKODE RCP.41/1995 of PRL.M.C.,KOZHIKODE-II .................... REVN. PETITIONER(S)/APPELLANT/RESPONDENT. --------------------------------------------------------- RAVEENDRAN, S/O.PEEDIKKAKANDI KUMARAN, AGED 51 YEARS, CHERUVANNUUR AMSOM DESOM, KOLATHARA, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENT/ PETITIONER ------------------------------------- 1. THIRUMALAKKAL KALARIKKAL BHASKARA PANICKER, S/O.KESAVAN, AGED 66 YEARS, FEROKE AMSOM NALLUR DESOM, KOZIKODE TALUK (DIED) ADDITIONAL RESPONDENTS 2. T.K.SANTHA , AGED 56 YEARS W/O LATE BHASKARA PANICKER 'VINODALAYAM', FEROKE AMSOM NALLUR DESOM, KOZHIKODE TALUK 3. T.K.VINOD KUMAR, AGED 39 YEARS S/O LATE BHASKARA PANICKER 'VINODALAYAM', FEROKE AMSOM NALLUR DESOM, KOZHIKODE TALUK 4. T.K.AJITHAKUMARI, AGED 35 YEARS D/O LATE BHASKARA PANICKER AMBALAPARAMBATH HOUSE VELLIYOD AMSOM BHOOMIVATHIKKAL DESOM VADAKARA TALUK CRP.No.2822/02 5. T.K.DINESH KUMAR, AGED 34 YEARS S/O LATE BHASKARA PANICKER 'VINODALAYAM' FEROKE AMSOM, NALLUR DESOM KOZHIKODE TALUK 6. T.K.HAREESH KUMAR, AGED 30 YEARS S/O LATE BHASKARA PANICKER 'VINODALAYAM' FEROKE AMSOM, NALLUR DESOM KOZHIKODE TALUK Additional respondents 2 to 6 are impleaded as legal heirs of the deceased sole respondent as per order dated 1-7-05 in C.M.P.no.7086/02 ADV. SRI.C.P.MOHAMMED NIAS FOR R5 SRI.C.P.MOHAMMED NIAS FOR ADDL.2 TO 6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - C.R.P..No.2822 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2009 ORDER Pius.C.Kuriakose, J. Tenant is the revision petitioner. Even though the grounds for eviction under Clause b of Sub Section 2 of Section 11 ( Arrears of rent), Clause-V of Sub Section 4 of Section 11 ( cessation of occupation) and Sub Section 3 of Section 11 ( bonafide own occupation) of the Kerala Buildings ( Lease and Rent Control ) Act 1965 were invoked, it is only the ground under Sub Section 3 of Section 11 which survives before us for consideration. 2. The need projected by the landlord was that he wants the building for accommodating his son who is a Chartered Accountant so that the building can be used by him as his office. The bonafides of the need and the claim were denied by the tenant. The tenant claimed the protection of the second proviso to Sub Section 3 of Section 11. 3. The Rent Control Court on evaluating the evidence which came on record including the oral evidence which was given by PW 2, CRP.No.2822/02 2 the dependent son, came to the conclusion that the need projected by the landlord under Sub Section 3 of Section 11 was bonafide. On considering the question whether the tenant is entitled to the protection of the second proviso, the Rent Control Court noticed that even going by the documents produced by the tenant relating to the business carried on by him in the building, the business was running at a loss and on that basis it was concluded that the tenant is not depending for his livelihood mainly on the income derived from the business. It was also found that the tenant was unsuccessful in establishing that he satisfies the second limb of the second proviso to Sub Section 3 of Section 11. 4. The Appellate Authority on re-appraising the evidence would concur with all the conclusions of the Rent Control Court and confirm the order of eviction. In this revision under Section 20 of the Rent Control Act, the tenant impugns all the findings of the Rent Control Court and the Appellate Authority on various grounds. 5. We have heard the submissions of Sri.P.V.Kunhikrishnan, learned counsel for the revision petitioner and those of CRP.No.2822/02 3 Sri.C.P.Mohammed Nias, learned counsel for the respondent/landlord. Though Sri.Kunhikrishnan addressed arguments on all the grounds raised in the revision petition, he would give thrust in his submissions to the following two points : a) The finding of the Rent Control Court and the Appellate Authority that the tenant is not entitled to the protection of the second proviso is on the reason that the accounts produced by the tenant discloses that the business of the tenant is running at a loss. b) The finding of the authorities below that the second limb of the second proviso to Sub Section 3 of Section 11 has to be decided against the tenant, is wrong since the other buildings referred to by the courts below as being available in the locality are all un-affordable for the tenant. 6. The submission of Sri.Kunhikrishnan were forcefully resisted by Sri.C.P.Mohammed Nias. Sri.Nias reminded us of the contours of this Court's revisional jurisdiction under Section 20. 7. We have anxiously considered the rival submissions addressed at the Bar. We have carefully gone through the order of the Rent Control Court and the judgment of the Appellate Authority. We have surveyed the evidence to the extent necessary for appreciating the arguments addressed at CRP.No.2822/02 4 the Bar. 8. As far as the findings of the authorities below that the landlord needs the building bona fide for occupation by his dependant son, a Chartered Accountant so that he can conduct his office, the said finding has been concurrently entered on the basis of acceptable evidence which came on record. The landlord as well as the dependant son gave evidence regarding the need. We do not find any infirmity in the authorities below having accepted the said evidence. 9. The second proviso to Sub Section 3 of Section 11 has two ingredients and both the ingredients are in the conjunctive. It is trite that the burden of showing that the tenant satisfies the two ingredients is on the tenant. There is evidence in the case to hold that other buildings are available in the locality. It is for the tenant to adduce evidence and prove that those buildings are not suitable for his purpose or that they are totally un-affordable for him. No such evidence has been attempted to be adduced by the tenant. Therefore, the finding of the courts below that the second ingredient of the second proviso has to be decided against the tenant is unassailable. Once the second ingredient is decided against the tenant, the tenant becomes disentitled to the protection of the second proviso to Sub Section 3 of Section 11. CRP.No.2822/02 5 10. May be it is true that it is solely on the basis of the Profit and Loss Account of the tenant's business for one year that the court below concluded that the business is running at a loss and therefore, the tenant is not dependent on the income from the business mainly for his livelihood. But, here again, the tenant claims that he is depending mainly on the income derived from the business in question for his livelihood. It is his obligation to adduce evidence and show that the income from the business is large enough to support him. That burden has not been discharged by the tenant. Necessarily, the finding of the courts below that the tenant has not succeeded in establishing that he is entitled to the protection of the second proviso to Sub Section 3 has to be approved. 11. As his last submission, Mr.Kunhikrishnan sought for one year's time to surrender the petition schedule building. Mr.Nias would oppose the request. We, however, are of the view that time till 31/01/2010 can be granted subject to the following conditions:- a) The revision petitioner shall file an affidavit before the execution court or the Rent Control Court, as the case may be, within one month from today undertaking to peacefully surrender the petition schedule building to the respondent on or before 31/01/2010 and undertaking further to discharge the entire arrears of rent due in respect of the building within one CRP.No.2822/02 6 month from today. 12. If such an affidavit is filed, the execution court shall not order and effect delivery till 31/01/2010. 13. This CRP is dismissed subject to the above directions. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE sv & kns/- CRP.No.2822/02 7