IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 RCRev..No. 172 of 2008() ------------------------ RCA.108/2004 of DISTRICT COURT, THALASSERY RCP.289/2002 of PRL.M.C.,KANNUR .................... (S): REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ CHERUKADA ACHUTHAN, S/O.KUNHIKUTTY, AGED 78 YEARS, GOLDSMITH, CHERUKADA HOUSE, CHIRAKKAL AMSOM, ALAVIL DESOM, P.O.ALAVIL, KANNUR - 8. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ C.K.AMARNAD, S/O.DEVAKI, AGED 64 YEARS, BUSINESS, PALLIKKUNNU AMSOM, CHALAD DESOM, P.O.CHALAD, KANNUR DISTRICT. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 SMT.M.M.DEEPA FOR R1 SRI.JAYKAR.K.S. FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.1667/08 DISMISSED. 17/10/200 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.172 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2008. O R D E R Ramanchandran Nair, J. The tenant is the revision petitioner. The order of eviction passed under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act') is under challenge. Both the authorities have concurrently found in favour of the landlord. 2. The landlord is doing the business of distribution of Kwality Wall Ice Cream and he is conducting the business in a rented building. He wants to expand the business to augment his income, for which the petition schedule building is required. The tenant contended that he has been doing business as a goldsmith in the room in question for decades and he is not having any other source of income and no suitable accommodation is available in the locality to shift his business. 3. The evidence consists of the oral evidence of P.W.1 and documents Exts.A1 to A3 marked on the side of the landlord. Ext.C1 is the report of the Commissioner. The evidence on the side of the tenant is the oral evidence of R.W.1. RCR 172/2008 -2- 4. The Rent Control Court found that the bonafide need pleaded is genuine. On an assessment of the oral evidence as well as the report of the Commissioner, the Rent Control Court found that the room occupied by the landlord at present was not sufficient to expand his business in ice cream. The evidence of P.W.1 showed that he wanted to put a freezer in the petition schedule room and other facilities to store ice cream. On an assessment of these facts, the Rent Control Court found that the bonafide need pleaded is genuine. The Rent Control Court found that both limbs of the second proviso to Section 11(3) of the Act has not been proved by the tenant. He has not adduced any evidence to show the income from the business conducted in the schedule room. He had not conducted any enquiry regarding the availability of alternate accommodation. In that view of the matter, eviction petition was allowed. The Appellate Authority also concurred with the findings of the Rent Control Court. 5. Learned counsel for the petitioner submitted that the tenant is conducting business as a goldsmith for about 50 years, he is aged 78 years now and he cannot get any room for doing his business. Learned counsel for the landlord pointed out that there is no evidence of conducting any business in the petition schedule room, even going by the evidence of the tenant. RCR 172/2008 -3- 6. We have gone through the pleadings and evidence in the case. The evidence shows that the landlord wanted to expand his business in distribution of Kwality Wall Ice Cream. He is carrying on the said business in a rented building at Kannur for about 10 years. Admittedly, the landlord is not having any other room for his use, i.e. for expansion of his business. Therefore, we are of the view that the authorities below have rightly held that the bonafide need pleaded is genuine. Then, the other question is regarding the benefit of the second proviso to Section 11(3) of the Act. The evidence on the side of the tenant is only his oral evidence. No details as regards the income derived from the business in the petition schedule room was adduced. The Appellate Authority was of the view that in the absence of any cogent evidence, the benefit cannot be given to the tenant of the first limb of the second proviso that he is depending mainly on the income derived from the business in the petition schedule room. Ext.A3 shows that he is having business in another place also. Regarding the second limb, i.e. non-availability of other building in the locality, no evidence has been adduced apart from the testimony of the tenant himself who was examined as R.W.1. On this aspect also, the burden of proof has not been discharged. There is no evidence to show that he has made enquiries in the matter. RCR 172/2008 -4- We find that the landlord has successfully proved that the bonafide need pleaded is genuine. The tenant is not entitled to the benefit of the second proviso to Section 11(3) of the Act also. No reasons are pointed out to interfere with the findings under Section 20 of the Act. For all these reasons, we dismiss the revision petition. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/