IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 RCRev..No. 329 of 2007() ------------------------ RCA.38/2003 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.139/2001 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- K.RUKIYA, W/O LATE P.HAMEED, AGED 52 YEARS, HOUSE WIFE, NEAR JYOTHIS, KANNUR AMSOM, THAYATHERU DESOM, KANNUR-2, KANNUR DISTRICT. BY ADV. SRI.A.K.ABDUL AZEEZ RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- K.M.ERAMU, S/O ABDULRAHIMAN, AGED 65 YEARS, TRADER, RESIDING NEAR JYOTHIS, KANNUR AMSOM, THAYATHERU DESOM, KANNUR, KANNUR DISTRICT. ADV. SRI.P.U.SHAILAJAN FOR R1 SRI.T.SHYAM PRASAD FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25-11-2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------------------- RCR. No. 329 of 2007 ----------------------------------------------- Dated this the 25th day of November, 2010 O R D E R Pius C.Kuriakose, J. The landlady is the revision petitioner. She filed the rent control petition invoking the ground of arrears of rent under Section 11(2)(b) and the ground of bona fide need for own occupation under Section 11(3). The ground of arrears of rent does not any longer survive as the order of eviction passed by the Rent Control Court under that ground stands already set aside under section 11(2)(c). The need projected by the landlady under sub-section (3) of Section 11 was to start a tailoring-cum-garment business in the petition schedule building. According to the landlady she has knowledge and experience in tailoring. All her children are married and are living separately. The landlady has no other source of income of her own. Hence her need. It was averred that she has no other building of her own in her RCR.329/07 -2- possession for accomplishing this need. It was also averred that she has the requisite funds for starting the business. The respondent tenant filed counter contending that the landlady's claim that the building has become vested in her by the operation of a Will executed by her husband is incorrect. The bonafides of the need was disputed. It was contended that the landlady has no genuine intention to start any tailoring business. It was pointed out that the landlady's husband was in Singapore for the last so many years and that the landlady and her family are financially very sound and further that the landlady has huge bank balance. It was stated that the three sons of the landlady are working abroad. Landlady's claim that she has knowledge and experience in tailoring was disputed. It was also contended that the building is not fit for conducting tailoring business. It was further contended that the intention of the landlady is to let out the building to new RCR.329/07 -3- tenants on higher rent. The tenant claimed protection of the second proviso to sub-section (3) of Section 11 contending that he is depending for his livelihood on the income derived from the business that he is conducting in the schedule building and further that other suitable buildings are not available in the locality for him to shift the business. 2. In the enquiry conducted by the Rent Control Court evidence on the side of the landlady consisted of her own testimony as PW-1, apart from documents Exts.A1 to A6. on the side of the tenant the same consisted of his oral evidence as RW-1, apart from Ext.B1. The Rent Control Court came to the conclusion that the need projected by the landlady is bona fide and that the tenant was unsuccessful in establishing that he satisfies the two ingredients of the second proviso. Accordingly, order of eviction was passed under sub-section (3) of Section 11, apart from ordering RCR.329/07 -4- eviction on the ground of arrears of rent. The Rent Control Appellate Authority considered an appeal preferred by the tenant and has by the impugned judgment set aside the order of eviction passed by the Rent Control Court under sub-section (3) of Section 11. 3. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Sri.A.K. Abdul Azeez, learned counsel for the revision petitioner would address strenuous arguments before us on the basis of the grounds. It was argued that the appreciation of the contentions and the evidence in this case by the learned Appellate Authority was grossly in an irregular manner justifying invocation of the revisional jurisdiction under Section 20. It was submitted that even the Appellate Authority confirmed the finding of the Rent Control Court that the need is bona fide. Reversal by the Appellate Authority was only in the context of the second proviso to RCR.329/07 -5- sub-section (3) of Section 11. The Appellate Authority has cast the burden of proof on the landlady. The Appellate Authority's view is contrary to the judgment of the Full Bench of this Court in Francis v. Sreedevi Varassier, 2003(2) KLT 230 (F.B) and that of the Supreme Court in Kunhamma v. Akkali Purushothaman, 2007(3) KLT 99 (SC). 4. Sri.P.U.Shylajan, learned counsel for the respondent would oppose all the submissions of the learned counsel for the revision petitioner. According to Mr. Shylajan, there is absolutely no warrant for interfering with the decision of the Appellate Authority. He submitted that under the statutory scheme, the Appellate Authority is the final court on facts and this court in revision is not expected to upset the findings of the Appellate Authority. 5. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the order of the Rent Control Court and the judgment of the RCR.329/07 -6- Appellate Authority. This is a case where the Rent Control Court and the Appellate Authority concluded concurrently that the need projected by the landlady is a bona fide one. The Appellate Authority interfered with the eviction order passed by the Rent Control Court only in the context of the second proviso to sub-section (3) of Section 11. It is trite that in order that a tenant becomes entitled for the protection of the second proviso to sub-section (3), he has to show that he satisfies the two ingredients of that proviso which are conjunctive and not disjunctive. The first ingredient is that the tenant should be depending mainly on the income that he derives from the business carried on by him in the tenanted premises. The second ingredient is that other suitable buildings are not available in the locality for him to shift his business. The Full Bench of this Court in Francis v. Sreedevi Varassier have laid down in very clear terms that the burden to plead and prove that a tenant is RCR.329/07 -7- entitled to the protection of the second proviso to sub- section (3) of Section 11 is on the tenant himself. It appears to us on a reading of the judgment of the Appellate Authority that the judgment of the Full Bench and that of the Supreme Court referred to above were not kept in mind by the Appellate Authority while deciding the appeal. As regards the finding on the second limb that the availability of other suitable buildings in the locality, we notice that the same is concurrent. According to us, even this finding is entered without proper application of mind as to the burden of proof. Yet we are inclined to approve the same in view of the concurrence in the findings. But then the tenant will also have to show that he is depending mainly on the income that he derives from the business in question. The Rent Control Court found very clearly and on giving cogent reasons that the tenant was unsuccessful in showing that he is depending mainly on the income that he derives from the RCR.329/07 -8- grocery business that he conducts in the schedule building. The Rent Control Court noticed that the bank pass book produced by the tenant will reveal that he has availed a loan and the evidence of the tenant was that he is liquidating that loan with the income from the business conducted by him in the schedule premises. According to the Rent Control Court, there was nothing in the pass book to indicate that it was a business loan that was availed by the tenant. The non-production of the accounts pertaining to the business conducted was, it appears, a circumstance kept in mind by the learned Rent Control Court. 6. The appreciation of the evidence adduced by the parties in the context of the first limb of the second proviso to sub-section (3) of Section 11 by the Appellate Authority was not proper. It is a fairly large scale grocery business that the tenant is conducting. The question is whether the tenant is deriving an income which is sufficient for RCR.329/07 -9- sustaining him, from the petition schedule building. The best evidence to prove this aspect is the accounts pertaining to the business conducted. No such accounts are produced. The Appellate Authority has casually approached the issue by observing that there is no case for the landlady that the tenant has some other business. The Rent Control Court noticed on the basis of the pass book that it is possible that the tenant is having another business. According to us, when the burden is on the tenant to show that he is depending mainly on the income that he derives from the business conducted by him in the tenanted premises he has to produce the best evidence to show that as to what exactly is the income from the business conducted by him. Then only the court will be able to come to a conclusion that the income derived by the tenant from the business conducted by him in the tenanted premises is sufficient enough for the tenant's sustenance. According to us, non- RCR.329/07 -10- production of documents relating to income by the tenant is an aspect which would justify drawal of adverse inference. There is absolutely no warrant to interfere with the finding of the Rent Control Court in the context of the second proviso to sub-section (3) of Section 11. The result of the above discussion is that the RCR is allowed. The order of eviction passed by the Rent Control Court under Section 11(3) is restored. The respondent tenant is granted time till 30-11-2011 for surrendering the premises subject to the following conditions: The respondent tenant shall file affidavit within one weeks of his obtaining copy of this order before the execution court undertaking to give peaceful surrender of the building to the landlady on or before 30-11-2011. It shall also be undertaken through the same affidavit that the entire arrears of rent if any will be discharged within two months from today and that occupational charges at the RCR.329/07 -11- current rent rate will also be paid without fail till actual surrender is made. We make it clear that the respondent tenant will get benefit of time as above only if he files affidavit on time and honours the undertakings therein. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ksv/- RCR.329/07 -12-