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 28TH JUNE 2011 / 7TH ASHADHA 1933 RCRev..No. 255 of 2011() ------------------------ RCA.46/2009 of RENT CONTROL APPELLATE AUTHROITY , KOZHIKODE-III RCP.21/2007 of RENT CONTROL COURT-III, KOZHIKODE .................... PETITIONER/APPELLANT/RESPONDENT --------------------------------------------------- V.P.ABDUL BASHEER, AGED 49 YEARS, S/O.V.P.ABOOBACKER, IDEAL BUILDERS, ENGINEERS AND BUILDERS, ARAKINAR.P.O., KOZHIKODE DISTRICT. BY ADV. SRI.K.ABDUL JAWAD SRI.M.MUHAMMED SHAFI RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ T.R.SIVADASAN, AGED ABOUT 64 YEARS, S/O.LATE C.S.SARADA, HARMIUM, CIVIL STATION.P.O., VENGERI VILLAGE, KOZHIKODE-20. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 255 OF 2011 ------------------------ Dated this the 28th day of June, 2011 O R D E R Balakrishnan, J. The tenant is in revision. The Orders of eviction were passed under Section 11 (2)(b) and 11(3) of the Act. So far as the order of eviction under section 11(2)(b) is concerned, the counsel for the revision petitioner submits that one month time may be granted to get that order vacated by filing petition under Section 11 (2)(c). Hence, that request is allowed. 2. The surviving challenge is against the order of eviction passed under Section 11(3). The landlord contends that he bona fide needs the petition schedule building to have his consultancy office conducted in the petition schedule building. The landlord is a retired civil engineer. 3. The need set up by the landlord is resisted by the tenant contenting that in 2005 a notice was sent by the landlord contending that the building is required for accommodating his RCR.No.255/2011 2 son for conducting business. That ground was not pursued. Thereafter, in 2007 another notice was sent contending that the landlord himself wants to start his consultancy office in the petition schedule building and so that itself would indicate the lack of bona fides. It is also contended that the tenant is depending mainly on the income derived from the business conducted in the petition schedule building and that there are no other suitable vacant buildings available in the locality. The tenant claimed protection under the second proviso to sub section (3) of Section 11. The landlord was examined as PW1 and Exts.A1 to A15 were marked. The revision petitioner was examined as RW1. The Rent Control Court on evaluating the evidence found that the need set up by the landlord is bona fide. It was also found that the tenant could not prove the two limbs of the second proviso and as such the protection claimed under the second proviso was also declined. Thus, the learned Rent Controller ordered eviction under section 11 (3). 4. The learned Appellate Authority on a reappraisal of the evidence confirmed the order of eviction passed under Section 11 (3). RCR.No.255/2011 3 5. Sri.K.Abdul Jawad learned counsel appearing for the revision petitioner would submit that there is absolutely no bona fides in the claim made by the landlord. There were attempts on earlier occasions also to evict the revision petitioner and it was for that purpose in 2005 a notice was sent stating the need of his son. The very fact that it was not pursued would show that there was no bona fides at all. It is further contended that the landlord is getting sufficient income as pension, as a retired civil engineer. It is also contended that his wife is a practising lawyer and his sons are employed abroad and so at his old age it cannot be believed that the landlord would start consultancy service in the petition schedule building, the learned counsel submits. 6. The Rent Control Court found that since the landlord is a retired civil engineer and since he has given evidence to the effect that he bona fide needs the petition schedule building for starting his consultancy in the civil engineering work, it cannot be said that the need projected by him is tainted with mala fides. The trial court was impressed by the evidence given by PW1. On a reappraisal of the evidence the learned Appellate Authority RCR.No.255/2011 4 also concurred with the view taken by the Rent Controller. We have gone through the order passed by the Rent Control Court and also the judgment of the Appellate Authority. We find no reason to upset the concurrent findings entered by the two authorities below. 7.The learned counsel for the revision petitioner/tenant would make strenuous efforts to canvas for the position that though the landlord has stated about some of the vacant buildings, the revision petitioner in his evidence has stoutly denied that there are no vacant buildings available in the locality. It is trite by various decisions of this court that the burden is entirely on the tenant to prove that the there are no other vacant buildings available in the locality. Therefore, even if the tenant succeeds in proving that he is depending mainly on the income derived from the business conducted in the petition schedule building, he cannot get the protection under the second proviso since he did not take out any commission nor examined the owners of the buildings referred to by the landlord. Therefore, both the courts were perfectly justified in negativing the claim for protection under the second proviso also. RCR.No.255/2011 5 Therefore, the revision fails and the same will stand dismissed. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk