IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 RCRev..No. 70 of 2011() ----------------------- RCA.10/2008 of RENT CONTROL APPELLATE AUTHORITY KOLLAM RCP.63/2005 of PRL.M.C., KOLLAM .................... PETITIONER/APPELLANT/COUNTER PETITIONER ----------------------------------------------------------- THANKAMANI, S/O.PONNAPPAN PANICKER, MECHANIC ENFIELD INDIA GARRAGE POLAYATHODU, THEKKEVILA CHERRY, MUNDAKKAL VILLAGE, KOLLAM. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): PETITIONERS/PETITIONER -------------------------- 1. KESAVARAJAN, AGED 49 YEARS, S/O.KARUNAKARA, ANANDABHAVAN, POLAYA THODU, KOLLAM. 2. MERCY RAJAN, AGED 48 YEARS, W/O.KESAVARAJAN, ANANDABHAVAN, POLAYA THODU, KOLLAM. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.70 OF 2011 ------------------------ Dated this the 10h day of February, 2011 O R D E R Balakrishanan, J. The tenant is in revision. An order of eviction was passed against him under Sections 11(3) and 11(4)(ii) of Act 2 of 1965. The landlords (husband and wife) contended that they need the petition schedule building for conducting business in fire wood and hay. It was also contended that the tenant has used the petition schedule building in such a manner as to reduce its value and utility materially and permanently by replacing the roof with metal sheets after removing the tiles. 2. The claim was resisted by the tenant contending that the respondents herein are actually cine artists and tele film artists and are getting huge income and that they are residing in Thiruvananthapuram and as such it is mostly unlikely that they would come down to Kollam to conduct business in firewood and hay. The allegation that the building was used in such a manner as to reduce its value and utility materially and RCR.No.70/2011 2 permanently was also resisted by the tenant contending that only because of the damage caused, the roof was replaced. On evaluating the evidence adduced by the parties, the learned Rent Controller found that Ext.B9 the Directory would show that the petitioners /landlords are Teli film artists but it could not be found that they are getting sufficient income for eking out their livelihood. It was also found that they are not reputed stars so as to confine themselves to cine or teli film activities. The learned Rent Controller found that the bona fide need alleged by the landlords is true. Relying on the commissioner's report and Mahazar marked as Exts.C1 an C2 respectively, the court below found that the petitioner/tenant used the building in such a manner as to reduce its value and utility materially and permanently. Hence, eviction was ordered on the ground of bona fide need and also under Section 11 (4)(ii) of the Act. 3. The learned Appellate Authority after reappraisal of the evidence concurred with the findings entered by the Rent Controller and thus the appeal was dismissed. 4. Sri.Raja Vijayaraghavan, learned counsel for the revision petitioner, has made strenuous arguments. The learned counsel RCR.No.70/2011 3 submits that only when Ext.B9 directory was produced, PW1 admitted that they used to act in teli films and cinemas. Though questions were put regarding the income they were getting, no definite answer was given by them. Therefore, learned counsel for the revision petitioner submits that the evidence given by PW1 should not have been accepted by the courts below. It is also pointed out that earlier there was an attempt on the part of the landlords to forcefully evict the tenant and at that time the tenant was constrained to file a suit for injunction as O.S. No.712/2003 against forceful dispossession. In the written statement filed in that suit, no plea was raised by the landlords that they intend to start business in firewood and hay in the petition schedule building. But the courts below rightly found that the written statement in that suit was filed about two years prior to the filing of the rent control petition. That apart, since that suit was filed against dispossession, there was no necessity for the landlords to put forward the ground of bona fide need for own occupation. The learned counsel has argued that it can never be believed that the landlords would come to Kollam only to conduct business in fire RCR.No.70/2011 4 wood and hay. The very fact that the building is aged about 50 years as admitted by the tenant may suggest that the said building is not suitable for conducting any business. Whatever that be, it is not for the tenant to say what should be the business that can be conducted by the landlords. Both the statutory authorities have concurrently found that the need projected by the landlords is genuine and honest. Sitting in revision under Section 20 of the Act, this court cannot re- appreciate the evidence to come to a different conclusion. 5. The burden is on the tenant to prove that he is entitled to the protection of the second proviso to sub section (3) of Section 11, for which he has to prove that he is depending mainly on the income derived from the business conducted in the petition schedule building. It was stated that the tenant was conducting a workshop in the petition schedule building. But it could not be proved satisfactorily that he was depending mainly on the income derived from the business carried on in the petition schedule building. The second limb of the second proviso to sub section (3) of Section 11 also could not be substantiated by producing acceptable evidence. Thus, both RCR.No.70/2011 5 the authorities found that the tenant is not entitled to the protection under the second proviso to sub section (3) of section 11. 6. Accepting the commission report (Ext.C1) and Mahazar (Ext.C2), both the courts found that the tenant has used the building in such a manner as to reduce its value and utility materially and permanently. We find no reason to upset that finding also. The revision petition must fail and the same will stand dismissed. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk