IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RCRev..No. 60 of 2007() ----------------------- RCA.84/2001 of ADDL. DISTRICT COURT (ADHOC), THALASSERY RCP.292/1999 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT. --------------------------------------------------- MAYIPPANTAKATH NASEEMA, D/O.KHADER KUNHI, AGED 36 YEARS, NOW RESIDING AT DHARUNNAJA, THAYYIL, KANNUR-3. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): APPELLANT. ------------------------- 1. MULLALI MOIDU, S/O.ABDULLA, AGED 78 YEARS, NO OCCUPATION, SAINABHA NIVAS, M.P.WARD, P.O.THAYYIL, KANNUR-670 003, KANNUR DISTRICT. 2. JUTICE FERNANDEZ, AGE AND FATHER'S NAME NOT KNOWN, BUSINESS, BUILDING NO.M.P.10, MAIDANAPPALLI WARD, THAYYIL P.O., KANNUR-3. ADV. SRI.N.NAGARESH FOR R1 SRI.K.BABU FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 60 OF 2007 ------------------------ Dated this the 24th day of November, 2009 O R D E R Pius C.Kuriakose, J. The landlady is in revision. She sought to evict the respondents/tenants on the ground of bona fide own occupation and also on the ground of sub letting. In the context of ground of sub letting, the allegation was that the first respondent is the tenant in the RCP and he has sub let or transferred the premises unauthorisedly to the second respondent in the RCP. The need projected in the context of ground under sub section (3) of Section 11 was that the landlady wants to conduct tailoring business in the petition schedule building, so that the family income of the landlady can be augmented. Separate statements of objection were filed by the respondents 1 and 2 in the RCP. It was contended that the sub lease or transfer is alleged without any foundation. It was also contended that the need and the claim raised by the landlady is without any bona fides. It was further contended that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. Before the RCR.No.60/2007 2 Rent Control Court, the evidence on the side of the landlady consisted of Ext.A1 to A14 and her own oral testimony as PW1. On the side of the tenant and the alleged sub tenant the same consisted of Exts.B1 to B11 and the oral evidence of tenant as RW1. The Rent Control Court on appreciating the evidence found that the landlady was unsuccessful in establishing that the tenant had unauthorisedly sub let or transferred the petition schedule premises to the second respondent in the RCP. Accordingly, eviction was declined on the ground of sub letting. It was found that the need projected by the landlady was a bona fide one. It was further found that though the tenant was able to establish that the other suitable buildings are not available in the locality, the tenant was unsuccessful in establishing by adducing the best evidence that the tenant is depending mainly on the income derived from the business carried on by him in the petition schedule building. Accordingly, it was found that the tenant is not entitled for the protection of the second proviso to sub section (3) of Section 11. Resultantly, eviction was ordered against the tenant on the ground of bona fide on occupation. 2. The tenant preferred RCA 84/2001 before the Rent RCR.No.60/2007 3 Control Appellate Authority. That Authority did not interfere with the finding of the Rent Control Court that the need of the landlady was bona fide. However, that authority found that there was no cross examination on the tenant's version that he was depending mainly on the income derived from the petition schedule building and therefore concluded that the tenant was successful in establishing that he satisfies the first ingredient of the second proviso to sub section (3) of Section 11. Accordingly, reversing the order of eviction passed by the Rent Control Court, the Appellate Authority dismissed the Rent Control Revision. 3. We are informed by the learned counsel for the respondents that the respondents filed RCR No.284/2007 before this court challenging the finding of the Appellate Authority that the need of the landlady is bona fide and that the above Rent Control Revision was dismissed by this court. Under the above circumstances, the finding concurrently entered by the authorities below that the need projected by the landlady for own occupation is a bona fide one has become final. The only question that arises for consideration by us is whether the Rent RCR.No.60/2007 4 Control Appellate Authority was justified in finding that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. It is trite by judgments of two Full Benches of this court that the burden to establish that the tenant satisfies both the ingredients of the second proviso to sub section (3) of Section 11 is on the tenant himself. As indicated by the Rent Control Court, the tenant's endeavor to prove that he is depending mainly on the income derived from the business carried on in the petition schedule building was by adducing oral evidence only. According to the Rent Control Court, on an aspect which is capable of documentary evidence, the tenant should have adduced evidence himself. But, as noticed by the appellate authority there was no effective cross examinations on the version of the tenant that he has no other source of income. The same is the position regarding the second ingredient of the second proviso to sub section (3) of Section 11. We do not find even formal cross examination on the version of the tenant that the other suitable buildings are not available in the locality. It appears to us that in view of the importance that was given by the parties to the eviction ground of sub lease, the parties were RCR.No.60/2007 5 more concerned during trial about that ground. We feel , having regard to the entirety of the facts and circumstances attending on this case, that the issue as to whether the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11 should be reconsidered by the Appellate Authority. In terms of Sections 18(3) and 21 of the Act and Rule 16 (2) of the Kerala Buildings (Lease & Rent Control) Rules, the power of the Appellate Authority to hold enquiry is co-terminus with that of the Rent Control Court itself. Therefore, setting aside the judgment of the Rent Control Appellate Authority to the extent the same pertains to the tenant's eligibility for protection of the second proviso to sub section (3) of Section 11, we remand the RCA to that authority. The Appellate Authority is directed to hold enquiry into the question whether the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11 keeping in mind that the burden to establish that the tenant is entitled for the protection of the second proviso of sub section (3) of Section 11 is of the tenant himself. If the tenant adduces further evidence, the landlord should be permitted to adduce counter evidence. The Appellate Authority is directed to RCR.No.60/2007 6 complete enquiry within six weeks of the parties entering appearance pursuant to this order of remand and to pass revised judgment in accordance with law. The parties will enter appearance before the Appellate Authority, Thalassery on 7/12/2009. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk