IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RCRev..No. 1 of 2011() -------------------------------- RCA.33/2009 OF DISTRICT COURT, KOLLAM B.R.C.O.P. NO.3/2005 OF MUNSIFF COURT/RENT CONTROLLER, KARUNAGAPPALLY .................... PETITIONER/RESPONDENT/PETITIONER ----------------------------------------------------------- NOOHUKKANNU ANZAR, ANZAR NIVAS, PAIKUZHI MURI, OACHIRA VILLAGE. BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE, ADV. SRI.SADER E.REAZ, SMT.K.DEEPA (PAYYANUR). RESPONDENT/APPELLANT/RESPONDENT -------------------------------------------------------------- THANGAL KUNJU, S/O. MAITHEEN KUNJU, PROPRIETOR OF SANTRA FOOTWEAR, NEAR TOWN MOSQUE, OACHIRA, RESIDING AT SANTHAMANGALATHU VEEDU, KRISHNAPURAM VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 1 OF 2011 = = = = = = = = = = = = = = = = Dated this the 7th day of June, 2011. O R D E R Balkrishnan,J. The landlord is in revision. The claim for eviction u/s 11(3) was disallowed by the Rent Control Court and also by the Appellate Authority. The need projected by the landlord was for his son to start an automobile workshop. He is a diploma holder in automobile engineering as evidenced by Ext.A6 and has got experience as an apprentice in K.S.R.T.C. Regional workshop for nearly six months as evident from Ext.A7. The Rent Control Court found that the need alleged by the landlord is bonafide but found that the tenant/respondent is entitled to the benefit under the 2nd proviso to S.11(3) and R.C.R. NO. 1 OF 2011 -:2:- hence the RCP was dismissed. The Rent Control appeal filed by the landlord also met with the same fate but confirmed the finding regarding bonafide need. 2. Sri.K.Gopalakrishna Kurup, learned senior counsel appearing for the revision petitioner would submit that the learned Appellate Authority was not justified in holding that the respondent is mainly depending on the petition schedule building for his livelihood and there are no other rooms available in that locality for conducting his business. Learned counsel would submit that the learned Appellate Authority has mainly relied upon a stray sentence in the evidence of PW1 that the tenant's livelihood is the only source of income from the petition schedule building. Learned counsel submits that the answer given by PW1 was misconstrued and there was no admission to the effect that he is mainly depending on the income R.C.R. NO. 1 OF 2011 -:3:- from the petition schedule building. Sri.Subash Chandra Bose learned counsel for the tenant/respondent would submit that the tenant is conducting a footwear business in the petition schedule building and there is no case for the landlord that he has any other source of income and as such finding on that point entered by the learned Appellate Authority is only to be sustained. 3. It is the settled position of law that the burden is entirely on the tenant to prove both limbs of the 2nd proviso to S.11(3). Mere oral vibration of the tenant that he depends on the income from the petition schedule building is not sufficient. The business that is conducted in the building is business in footwear. One would certainly expect him to keep accounts relating to the income and expenses of the said business. Even if there is no sales tax registration for the business he R.C.R. NO. 1 OF 2011 -:4:- conducts still he cannot rest content saying that there are no accounts at all. When the burden is on the tenant to prove that he is mainly depending on the income from the business conducted in that premises he has to prove positively as to what is the profit he is getting and what is the amount he required for eking out his livelihood. No such acceptable evidence was adduced by the tenant and as such the finding of the learned Appellate Authority that the tenant is mainly depending on the petition schedule building for his livelihood cannot be sustained. 4. It was contended by the landlord that so many buildings have come up in that locality and that if the tenant wants to shift his business he can get another room in that building but no evidence was adduced to show that no other suitable buildings are available in that locality. No Commission was taken out R.C.R. NO. 1 OF 2011 -:5:- to prove that there are no vacant buildings available in the locality. Sri.Gopalakrishna Kurup drew our attention to the deposition of RW1, from which it can be gathered that so many buildings have come up in that locality and that vacant rooms are available. Since the burden is on the tenant to prove that there are no vacant buildings available in that locality tenant cannot be heard to contend that he has substantiated the two limbs of the 2nd proviso so as to get protection under the 2nd proviso and as such the finding on that point entered by the learned Appellate Authority has to be set aside. In view of the finding that bonafide need projected by the landlord is true an order for eviction u/s 11(3) should necessarily follow. 5. In the result this revision petition is allowed and an order of eviction in favour of the landlord u/s 11(3) of the Act is passed and the tenant/respondent is directed to put the R.C.R. NO. 1 OF 2011 -:6:- landlord in possession of the petition schedule building. 6. Sri.Subash Chandra Bose, learned counsel for the respondent would submit that in fact a suit for specific performance was filed by the plaintiff as against the verdict of which R.F.A.723/10 was filed by the respondent-tenant as an agreement was entered into between the respondent and the predecessor-in-interest of the revision petitioner. The appeal R.F.A.723/10 filed by him is reported to be pending before this Court. Learned counsel submits that in fact the suit was filed by him in the year 2003 and it was only thereafter the RCP was filed by the revision petitioner in 2005. Whatever that be, if respondents ultimately succeed in the R.F.A he can certainly seek restitution u/s 144 of Code of Civil Procedure. The further submission made by the learned counsel is that at least two years time may be granted to him to R.C.R. NO. 1 OF 2011 -:7:- vacate the petition schedule building. The rent presently paid is Rs.500/- per month. Learned counsel for the landlord seriously opposed the request for granting such an unusually long period of time. Considering all these aspects we are inclined to grant one year time to the respondent/tenant to vacate the petition schedule building but only on the following conditions. 7. The respondent will file an affidavit before the Rent Control Court or the execution Court as the case may be, within one month from this day undertaking that he will give peaceful surrender of the petition schedule building to the landlord/revision petitioner on or before 15.6.2012 and undertaking further to discharge the arrears of rent within one month from today and to pay occupation charges at the rate of Rs.750/- per month with effect from 1.7.2011 promptly and regularly as and when the same R.C.R. NO. 1 OF 2011 -:8:- falls due till the date of actual surrender. It is made clear that the tenant will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE, JUDGE. N.K. BALAKRISHNAN, JUDGE. ul/-