IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 RCRev..No. 126 of 2005() ------------------------ RCA.23/2001 of DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY,, KASARAGOD RCP.7/2000 of PRL.MUNSIFF'S/RENT CONTROL COURT, KASARAGOD .................... REVISION PETITIONER/RESPONDENT/TENANT ------------------------------------------------------ RAGUNANDAN SHENOY AGED 39 YEARS S/O. RAMDAS SHENOY, HINDU, G.S.BRAHMIN, BUSINESSMAN RESIDING AT NEAR UMA NURSING HOME, KARANDAKKAD OF KASARAGOD KASBA VILLAGE, P.O.KASARAGOD. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT: APPELLANT/LANDLORD ------------------------------- A.A.ABDULLA, AGED 27 YEARS, UNEMPLOYED, S/O. ABDUL RAHIMAN, MUSLIM, RESIDING AT THAYALANGADI OF KASARAGOD TOWN, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, P.O.KASARAGOD. BY ADV. SRI.A.M.SHAFFIQUE SRI.A.M.SHAFFIQUE SMT.PRIYA KRISHNAMOORTHY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR 126/2005 ORDER ON I.A.NO.1045/2005 DISMISSED. 10.01.2008 SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- P.N.RAVINDRAN, JUDGE. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- R.C.R. NO. 126 OF 2005-F ----------------------------------------- Dated 10th January, 2008. ORDER Balakrishnan Nair, J. The tenant is the revision petitioner. The respondent is the landlord. The landlord sought eviction of the petition schedule building under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as “the Act”). But, the landlord only pressed the ground under Section 11(3) before the Rent Controller. The Rent Controller upheld the bona fide need urged by the landlord. But, he was non-suited on the ground that the tenant is entitled to get the protection of the 2nd proviso to Section 11(3). It was further held that the protection under Section 11(17) was also available in this case to the tenant. The landlord appealed. The appellate authority reversed both the above said findings of the Rent Controller. Hence this Rent Control Revision. 2. The landlord was a Gulf returnee. He was unemployed. He has no other income. He purchased the scheduled building from the original RCR 126/2005 2 owner Smt.Khadeeja in 1997. He wanted to start a business in furniture in the said room. He has no other rooms in his possession. Therefore, the landlord sought eviction of the petition schedule building. The tenant resisted the petition, contending that the need alleged by the landlord is a ruse to evict him. He is mainly dependent on the income from the tenanted premises for his livelihood. There are no other suitable rooms in the locality to shift his business. It was also contended that the tenant's predecessor-in- interest took the scheduled room on rent in 1926. Since the commencement of the tenancy is before 1.4.1940, he is entitled to get the protection under Section 11(17) of the Act. 3. Before the Rent Controller, the landlord got himself examined as PW1 and marked Exts.A1 to A4. The tenant was examined as RW1 and Exts.B1 to B21 were marked. The landlord being unemployed and without any business, his claim for on occupation was held to be bona fide by the Rent Controller. But, as mentioned earlier, the claim of the tenant for the protection of the 2nd proviso to Section 11(3) and also protection of Section 11(17) was upheld. The appellate authority noticed that the bona fide need urged on behalf of the landlord was not seriously disputed by the tenant. Though the claim under Section 11(17) was seriously pressed, the same was repelled by the appellate authority, relying on the Full Bench RCR 126/2005 3 decision of this Court in Narayanan v. Shalima [2003(2) KLT 317 (FB)]. We find nothing illegal with the said decision, as the above Full Bench decision was recently affirmed by the decision of a Five Judges' Bench, reported in Prabhakaran v. Sulaikabi [2007(2) KLT 103 (FB)]. Therefore, the claim of the tenant under Section 11(17) was rightly rejected by the appellate authority. 4. The learned counsel for the revision petitioner submitted that in fact, the original tenant was a partnership firm and the same firm, though there is change in the partners, is continuing the business and therefore, the revision petitioner is entitled to get the benefit of Section 11(17). But, we notice that the tenant does not have any such case in his counter statement filed before the Rent Controller. No evidence was also let in on this point. Therefore, we cannot consider the said claim of the revision petitioner- tenant. 5. The learned counsel for the revision petitioner further pointed out that the protection of the 2nd proviso was wrongly denied to the revision petitioner by the appellate authority. The appellate authority noticed that in view of Ext.A5, the tenant is admittedly in possession of another shop room, where he is doing business. It is a caveat petition filed by the tenant under Section 148A of the C.P.C., against the landlord of the said room. The RCR 126/2005 4 tenant does not dispute the genuineness of the said document. But, at the appellate stage, the tenant explained that the said building is used as a godown for the business run by him in the petition schedule building. The appellate authority held that the tenant can shift his business to that premises, as admittedly he is in possession of another room. Therefore, the appellate authority found the second limb of the second proviso to Section 11(3) against the tenant. We find that it is a plausible view on the facts disclosed by the records, with which this Court cannot interfere. 6. Regarding the first limb of the second proviso to Section 11(3), the appellant authority found that the tenant failed to produce necessary materials to show that he is depending mainly on the income from the scheduled building. The burden is heavy on the tenant to show that he is depending on the income from the tenanted premises for his livelihood. We notice that there are no materials on record to show that the revision petitioner has some other business. The materials regarding his income from the tenanted premises are two fold. Copy of the profit and loss account prepared by the Chartered Accountant for the financial year ending March, 1992 has been produced as Ext.B19. The same would show that he earned a profit of about Rs.84,000/- from the business conducted in the room. At the time when he was examined as a witness in 2001, he deposed RCR 126/2005 5 that he is getting a daily income of Rs.150/- from the room. So, it cannot be said that his income is too marginal to support him and his family and therefore, he should have some other income. So, the materials on record would show that he is getting reasonable income from the room and he has no other income from other sources. Therefore, we are of the view that the finding on the first limb of the second proviso to Section 11(3) should be in favour of the revision petitioner. But, he has failed to prove the non- availability of rooms in the locality to get the benefit of the 2nd proviso. As mentioned earlier, it was rightly found against him by the appellate authority, taking note of the room, admittedly available in his possession. So, the revision petitioner is not entitled to get the protection of the second proviso to Section 11(3) of the Act. In the result, the revision petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/