## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**&**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941**
**RCRev..No.438 OF 2019**
**AGAINST THE JUDGMENT IN RCA 4/2017 DATED 18-09-2019 OF ADDITIONAL DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA, IRINJALAKUDA AGAINST THE ORDER IN RCP 11/2012 DATED 08-06-2016 OF RENT CONTROL COURT, IRINJALAKUDA**
## **REVISION PETITIONER/APPELLANT/RESPONDENT:**
**BABU, AGED 54 YEARS S/O MUKKULAM MADHAVAN, MADATHIKKARA DESOM, PULLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**
**BY ADVS. SRI.E.C.POULOSE SMT.LAKSHMI RAMADAS SMT.BOBBY RAPHEAL.C**
## **RESPONDENT/RESPONDENT/PETITIONER :**
**SAJITHA, AGED 36 YEARS, W/O PALAYAMKOTT ABHILASH, IRINJALAKKUDA VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN- 680 121.**
**R1 BY ADV. K.S.RAJESH**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **ORDER**
## **Harilal, J**
The revision petitioner herein is the tenant against whom an order of eviction has been passed by the Rent Control Court, Irinjalakkuda in R.C.P. No.11/2012 under Section 11(3) of the Kerala Building (Lease & Rent) Control Act, 1965 and confirmed by the Appellate Authority, Irinjalakkuda in R.C.A.No.4/2017. The parties are referred to as landlord and tenant.
2. According to the landlord/respondent, she _bona fide_ needs the plaint schedule building for starting a tailoring shop, as she is a tailor by profession, and she has no other vacant building of her own in her possession to start the
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proposed tailoring shop. But several other vacant buildings are available in the locality to shift the business of the tenant from the plaint schedule building. According to her, the tenant is not mainly depending upon the income derived from the tenanted premises.
3. The tenant resisted the claim for eviction contending that the need projected is not _bona fide_ and it is a ruse for eviction only. It is also contended that he is depending mainly on the income derived from the business in the tenanted premises and no other suitable buildings are available in the locality to shift his business from the tenanted premises. With the aforesaid averments, tenant/revision petitioner prayed for dismissal of the rent control petition.
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4. On the rival pleadings both of them adduced evidence and the courts below found that the need projected is _bona fide_ and the tenant is not entitled to get protection under the provisos to Section 11(3) of the Act. Thus, the legality and correctness of the aforesaid findings, whereby the rent control court has passed an order of eviction, under Section 11(3) of the Act, and confirmed by the appellate court, are under challenge in this revision petition.
5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.
6. Being a revision filed under Section 20(b) of the Act, this Court is not inclined to re-appreciate the entire evidence on record, unless the factual
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findings are perverse or unsustainable under law.
The scope and extent of consideration in this revision are confined to legality, propriety and regularity of the findings, whereby the courts below have granted an order of eviction, under Section 11(3) of the Act.
7. Though this revision has been filed on various grounds, at the time of admission, the learned counsel for the tenant/revision petitioner has focused his arguments on the findings under the provisos to Section 11(3) of the Act. According to the learned counsel appearing for the tenant, the courts below have miserably failed to appreciate the entire evidence on record under the 2[nd] proviso to Section 11(3) of the Act in its correct perspective.
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8. In view of the arguments across the bar, the scope and extent of consideration in this revision is confined to the question whether there is any perversity in the findings; whereby the courts below have concurrently arrived at a finding, that the tenant is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act.
9. As regards the 2[nd] proviso to Section 11(3) of the Act, it is trite law that both limbs under the 2[nd] proviso, to Section 11(3) of the Act are conjunctive and the burden of proof is on the tenant. As regards the first limb of the 2[nd] proviso, it is for the tenant to prove that he is mainly depending on the income from the business in the tenanted premises. But in the instant case, there is no evidence other than the
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oral assertion of the tenant himself as PW1. No evidence has been adduced to prove the volume of income, which is being derived from the present business in the tenanted premises. In **Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820],** this Court held that no tenant can claim protection after hiding his income, and evidence must be produced to prove his approximate income from the trade or business and his approximate expenses for livelihood. Thus, disclosure of income or profit and the expenses for livelihood are indispensable to prove the first limb of the 2[nd] proviso. In the instant case, there is no evidence to prove the income, which is being derived from the business conducted in the tenanted premises. So the rent control appellate
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authority is justified in confirming the findings of the rent control court that the tenant has failed to discharge the burden of proof under the first proviso to Section 11 (3) of the Act.
10. Coming to the 2[nd] limb of the 2[nd] proviso to Section 11(3), it is for the tenant to prove that no other vacant buildings are available in the locality to shift his business from the tenanted premises. We find that there is no evidence other than the oral assertion of the tenant himself as RW1. Certainly, he could have taken out a commission to ascertain the non-availability of alternative buildings in the locality or he could have produced the records from the Municipality to show the non-availability of the vacant buildings in the locality for letting out. In the instant case,
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no such attempt was made to bring out the evidence to substantiate his oral testimony that no other buildings are available in the locality to shift his business from the tenanted premises. In the absence of any positive evidence to prove the non-availability of the vacant buildings in the locality, the courts below are justified in finding that the tenant/revision petitioner failed to discharge the burden of proof under the second proviso also.
11. In the above analysis, we find that there is no illegality, impropriety or perversity in any of the findings, whereby the courts below have concurrently passed an order of eviction, under Section 11(3) of the Act. Hence, this revision petition fails and it is dismissed accordingly.
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12. At this juncture, the learned counsel for the tenant/revision petitioner sought some more time to vacate the tenanted premises. Having regard to the nature of business, which is being
conducted in the tenanted premises, the tenant/revision petitioner is hereby granted six months' time from today to vacate the petition
schedule building, on the following conditions:
- _(1) The tenant/revision petitioner shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or_
- _the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today._
- _(2) The tenant/revision petitioner shall deposit the entire arrears, if any, within one month from the date_
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_of receipt of a copy of this order, before the Execution_
_Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default._
_(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the_
_landlords/respondents will be at liberty to proceed with the execution of the eviction order._
All the pending interlocutory applications will
stand closed.
**Sd/- K.HARILAL, JUDGE**
**sd/- C.S.DIAS, JUDGE**
AMV/07/12/2019
