## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU**
**WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939**
**RCRev..No. 183 of 2017 () --------------------------**
**RCA 18/2012 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT - II), KALPETTA**
**RCP 11/2011 of RENT CONTROL COURT (MUNI-MAGI.COURT, MANANTHAVADY**
**--------------**
**REVISION PETITIONER(S)/APPELLANT/RESPONDENT:**
**-------------------------------------------**
**T.V.RAJAN, AGED 58 YEARS, S/O.KANNAN, R/AT "SRUTHI", PANAMARAM POST AND VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT**
**BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN**
**RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------**
**KEEZHATTA ABDUL NAZER, AGED 43 YEARS, S/O.MAMMU HAJEE, MAKKIYAD POST, KANHIRANGAD VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN-670645**
**BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**STK**
## **K. HARILAL & A.M.BABU, JJ.**
## **------------------------------R.C.R No.183 of 2017**
**----------------------------------** Dated this the 1[st] day of November, 2017
## **O R D E R**
## **K. Harilal J.**
The legality and propriety of the concurrent findings of the court below under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (in short, 'the Act') have come up in this revision filed by the respondent/tenant. The parties are referred to as in the Rent Control Petition. According to the landlord, he is in _bona fide_ need of the scheduled premises to start a hardware shop. Further it is stated that he is in vacant possession of two rooms in the first floor and two rooms in the rear side of the building. But those rooms are not sufficient to start the business and he has proceeded against other four tenants also to get vacant possession of those tenanted premises. Several other vacant rooms are available in the locality to shift the business of the
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respondent from the tenanted premises and he is not depending upon the income from the tenanted premises.
2. The respondent resisted the claim under Section 11(3) of the Act mainly contending that the need projected in the petition is a pretexted for eviction only. According to the respondent, the petitioner was working abroad and there was no need to start a business as he has so many other sources of income. Further, it is contended that the respondent is mainly depending on the income from the tenanted premises and no other vacant rooms are available in the locality to shift his business from the tenanted premises.
3. On the aforesaid rival pleadings, both parties have adduced evidence, both oral and documentary and after considering the said evidence, the Rent Control Court has passed the order granting eviction under Section 11(3) of the Act, on a finding that the need projected in the petition is _bona fide_ and the respondent
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is not entitled to get a protection under the second proviso to Section 11 of the Act. Even though, the respondent has preferred R.C.A.No.18/2012, after reappreciating the findings of the rent control court in view of the evidence on record, the appellate authority also confirmed the findings of the Rent Control Court and dismissed the appeal.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
5. The learned counsel for the respondent mainly contended that during the course of proceedings he got vacant possession of other rooms. But he has not started the business and those rooms are sufficient for starting the business. Therefore, the court below ought to have found that the claim under Section 11(3) of the Act was hit by the first proviso to Section 11(3) of the Act. It is also contended that the _bona fides_ of the need was not proved in evidence.
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6. Per contra, the learned counsel for the petitioner advanced arguments to justify the concurrent findings of the court below under Section 11(3) of the Act. It is submitted that the rooms adjacent to the petition schedule shop room, four in numbers also were required to start the said business. Hence the petitioner filed Rent Control Petition against them also and during the course of the proceedings some of the tenants surrendered vacant possession of their shop rooms to the petitioner and those rooms are lying vacant as such as the entire building is required to start the proposed business of hardware.
7. As regards the _bona fides_ of the need, it is the case of the petitioner that he was working abroad and now he lost his job and returned to his native place and now he has no avocation for his livelihood. He wants to start a hardware shop and for that the petition schedule shop room is also required. It has come out in evidence
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that he has initiated eviction proceedings against other tenants also and got vacant possession of some of the shop rooms and those rooms are remaining vacant without accommodating any other tenant for rent. The vacant possession of those rooms is admitted by the respondent also. We are of the opinion that the vacant possession of those rooms is sufficient to show the _bona fides_ of his need that the entire building is required for starting the proposed business.
8. The respondent also admitted that the petitioner has not rented out those rooms so far. It has come out by Ext.P8, copy of the passport that the petitioner has lost his job and returned to India. Therefore, there is no reason to suspect the _bona fides_ of his need. That apart, the petitioner was examined as PW1 and he has testified _bona fides_ of his need. The courts below after evaluating the evidence of PW1, it is held that nothing had been brought out in evidence to suspect the
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_bona fides_ of his need. Being a revision, this Court is inclined to re-appreciate the entire oral evidence particularly when the courts below placed a reliance on the oral testimony of PW1. In short, we do not find any reason to interfere the concurrent findings of the court below on the _bona fide_ need of the petitioner.
9. Coming to first proviso, the learned counsel for the respondent contended that during the pendency of the Rent Control Petition, the petitioner got vacant possession of other rooms, adjacent to the petition scheduled shop room. We have meticulously gone though the counter statement and we find that in that counter statement nowhere it is stated that the petitioner has any other vacant shop room of his own in his possession. In other words, the respondent has not pointed out any vacant rooms, in the possession of the petitioner. It is true that during the course of proceedings, he got vacant possession of other shop rooms from the tenants against
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whom he had filed Rent Control Petitions. But admittedly, those rooms are remaining vacant, awaiting the delivery of the petition scheduled shop room also to start the proposed business. But those vacant room would not fall under the 1[st] proviso, as the said rooms also are required for the proposed business. It is needless to say that the initial burden of proof under the first proviso to Section 11 (3) of the Act is on the tenant and the respondent has not discharged the initial burden of proof under first proviso to Section 11(3).
10. Coming to second proviso, it is trite law that the burden of proof under the second proviso is also on the tenant. Even though it is contended that the respondent is depending on the income from the tenanted premises, no evidence was produced to prove his approximate income and approximate living expenses. In **Shahul Hameed A v. P.E.Abdu Razak [2016(5) KHC 820]** this Court held that no tenant can claim protection under the
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second proviso after hiding his income and evidence must be produced to prove his approximate income from the trade or business and his living expenses. The oral assertion is not sufficient to discharge the burden of prove under the first limb of second proviso. As regards the second limb of the second proviso, the respondent himself admitted the availability of vacant room near KSEB office and he further admitted that he had not made any inquiry as regards the the availability of other alternative rooms in that locality. Absolutely, there is no evidence to prove that no other vacant shops are available in the locality to shift his business from the tenanted premises.
11. Thus, the courts below are justified in finding that the respondent is not entitled to get protection under second proviso under Section 11(3) of the Act. There is no legality or impropriety in any of the findings whereby the courts below granted an order of eviction under 11(3) of the Act. Hence, this revision petition will stand dismissed.
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The learned counsel for the respondent/tenant prayed for granting some time to surrender the vacant possession of the tenanted premises. Having regard to the
entire facts and circumstances of the case, the respondent/tenant is given six months' time from today to vacate the petition schedule building, on the following conditions.
(1). The respondent/tenant 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 three weeks from today.
(2). The respondent/tenant shall deposit entire arrears, if any, within one month from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to
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pay 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 respondent/landlord will be at liberty to proceed with the execution of the eviction order.
sd/-
**K. HARILAL, JUDGE**
sd/- **A.M.BABU, JUDGE**
**//TRUE COPY//**
**P.A. TO JUDGE**
**STK**
