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 17TH MARCH 2009 / 26TH PHALGUNA 1930 RCRev..No. 431 of 2004() ------------------------ RCA.66/1998 of ADDL. DISTRICT COURT, THALASSERY RCP.62/1993 of MUNSIFF COURT, THALASSERY .................... REVISION PETITIONER --------------------------------------- MANAPPATTY SANTHA, KADIRUR AMSOM, PULLIODA DESOM, THALASSERY. BY ADV. SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY RESPONDENT(S): --------------- KUNNUMMAL SEKHARAN, S/O.KUMARAN, KADIRUR AMSOM, PULLIODE DESOM, THALASSERY. ADV. SRI.R.SURENDRAN FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No.431 OF 2004 ------------------------ Dated this the 17th day of March, 2009 ORDER Surendra Mohan, J. This Rent Control Revision is by the landlady against the judgment of the Rent Control Appellate Authority in R.C.A.No.66/1998 dismissing RCP No.62/93 of the Rent Control Court, Thalassery. The Rent Control Petition was filed seeking eviction of the respondent under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease And Rent Control) Act, 1965 (hereinafter referred as ' the Act' for short). 2. The petition schedule shop room belonging to the petitioner was taken on rent by the respondent in December 1982 on a monthly rent of Rs.30/-. The respondent/tenant is conducting a tea shop in the premises. The Rent Control Petition was filed alleging that the rent was in arrears from May 1990. It was further alleged that the petitioner's son Sri.Rameshan, who is a handicapped person, needed vacant possession of the premises for starting a stationery business for his livelihood. 3. The Rent Control Petition was resisted by the respondent R.C.R.No.431/2004 2 denying that there was any arrears of rent. According to him, though the rent was paid, receipts were not given. He denied that the petitioner's son was a handicapped person. According to him, the petitioner's son was an autorickshaw driver earning sufficient income. The respondent/ tenant alleged that, the eviction was sought only with the intention of giving the premises to some other person on a higher rent. The respondent claimed that he had no other source of income and that he was depending on the income derived from the tea shop conducted in the petition schedule shop room for the livelihood of himself, and his family and that no other vacant rooms were available in the locality for shifting his business. 4. Before the Rent Control Court, the revision petitioner's son Sri.Remeshan was examined as PW1 and Exts.A1 to A4(b) documents were marked. On the side of the respondent, Rws.1 and 2 were examined as witnesses and Exts.B1 and B2 documents were marked. Ext.X1 summoned document has also been marked. 5. The Rent Control Court after considering the evidence on record granted eviction only on the ground of arrears of rent. R.C.R.No.431/2004 3 The revision petitioner challenged the order of the Rent Controller in RCA No.137/1994. The learned Appellate Authority allowed the appeal and found that the need alleged by the petitioner was bona fide. Therefore, the Appellate Authority remanded the matter to the Rent Control Court for the limited purpose of considering whether the respondent/tenant was entitled to the benefit of the second Proviso to Section 11(3) of the Act. 6. After remand, PW1 and RW2 were recalled and examined again. According to PW1, the respondent was conducting a chit business, was having other income from properties and by selling arrack. It was alleged that the respondent's wife was employed in a cashew factory and his son was working as a painter. According to him, some vacant buildings were available in the locality. The tenant deposed as RW2 that the statements made by PW1 were false and baseless. According to him, he is not capable of doing any other work and he had difficulty in speaking also. He was conducting his tea shop with the assistance of his wife. His only source of income is from the conduct of the tea shop in the petition schedule building. According to him, no other suitable shop room is R.C.R.No.431/2004 4 available in the locality. On the basis of the above evidence, the matter was considered by the Rent Control Court. The court found that the respondent was depending on the income from the business conducted in the shop room for his livelihood and that he was entitled to the protection of the second Proviso of Section 11(3). 7. The order of the Rent Control Court was challenged by the revision petitioner before the Rent Control Appellate Authority, Thalassery in R.C.A. No.66/1998. The Rent Control Appellate Authority on a reappraisal of the evidence on record and a consideration the rival contentions, found that the tenant was depending on the income earned from the tea shop conducted in the petition schedule building for his livelihood. Therefore, it was found that the first limb of the second proviso to Section 11(3) was satisfied by the tenant. With regard to the second limb of the second proviso of Section 11(3), the learned Appellate Authority found that there was no evidence available to justify a conclusion that other vacant buildings were not available in the locality for the tenant to shift his business. The Appellate Authority found that the respondent/tenant had not R.C.R.No.431/2004 5 fully discharged his burden of proving his entitlement for getting protection of the second limb of the second proviso to Section 11 (3) of Act 2 of 1965. The Appellate Authority has thereafter concluded as follows; “In order to get an order of eviction both limbs of second proviso to Section 11(3) are to be satisfied. That being the position of the respondent/tenant is entitled to the protection of first part of second proviso an order for eviction against him cannot be passed under section 11(3) of Act 2/65.” 8. We have heard the learned counsel appearing for the rival parties. The position of law regarding the protection of the second proviso to Section 11(3) of the Act is fairly well settled as can be seen from the various decisions of this court. It is sufficient to refer to the decision of the Division Bench of this court in Kunhiraman Nair v. Madhavi(2002(2) KLT 10) and the decision of the Full Bench in Francis v. Sreedevi Varassiar (2003 (2) KLT 230)(FB), wherein it has been clearly laid down R.C.R.No.431/2004 6 that the burden of proving both the limbs of the second Proviso to Section 11(3) is squarely on the tenant. Therefore, it is clear that the Rent Control Appellate Authority was in error in holding that the respondent/tenant was entitled to the protection of the first part of second proviso and that no order of eviction could be granted against him in view of the said protection. The said finding of the Rent Control Appellate Authority is therefore vacated. Since the respondent/tenant has not discharged his burden of proving both the limbs of the second Proviso to Section 11(3) of the Act, an order of eviction has to be passed against him as prayed for in the Rent Control Petition. In the above view of the matter, the Rent Control Revision is allowed and RCP NO.62/1993 of the Rent Control Court, Thalassery is allowed on the ground under Section 11(3) of the Act. The tenant is granted one month's time to surrender vacant possession of the shop room to the landlord. PIUS.C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE dpk