R.C.Rev.No.50 of 2022; R.C.Rev.No.55 of 2022; R.C.Rev.No.56 of 2022, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA,** ## **1944** ## **R.C.REV.NO.55 OF 2022** **AGAINST THE JUDGMENT DATED 31.01.2022 IN R.C.A.NO.8 OF 2020 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY** **(ADDITIONAL DISTRICT JUDGE - II), KASARGOD CONFIRMING THE ORDER DATED 06.01.2020 IN R.C.P.NO.1 OF 2016 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF), HOSDURG** ## **REVISION PETITIONER:** **N.AMBOOTY MASTER, AGED 85 YEARS, S/O ABU, SOORYA TENTS, KAYYUR ROAD, KUTTAMATH P.O., CHERUVATHUR, CHERUVATHUR VILLAGE, HOSDURG TALUK** **BY ADVS. PHILIP T.VARGHESE THOMAS T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA K.R.MONISHA SHRUTHI SARA JACOB ARJUN RAJA P.C. SREENATH VIJAYARAGHAVAN** ## **RESPONDENT:** **B.P.RAMESHAN,AGED 47 YEARS, S/O P.V. NARAYANAN, NANDAGOPURAM, VADAKKEKAVU, PEROLE, NILESHWAR, PEROLE VILLAGE, HOSDURG TALUK, KASARGOD – 671 315** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.03.2022, ALONG WITH RCRev.50/2022, 56/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV.Nos.50, 55 and 56 OF 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **R.C.REV.NO.50 OF 2022** **AGAINST THE JUDGMENT DATED 31.01.2022 IN R.C.A.NO.9 OF 2020 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - II), KASARGOD CONFIRMING THE ORDER DATED 06.01.2020 IN R.C.P.NO.2 OF 2016 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF), HOSDURG** ## **REVISION PETITIONER:** **M SUDHAKARAN, AGED 70 YEARS, S/O. CHIRUKANDAN, FRIEND UPHOLSTERY WORKS, KAYYUR ROAD, P. O. CHERUVATHUR, CHERUVATHUR VILLAGE, HOSDURG TALUK, PINCODE – 671 310.** **BY ADVS. PHILIP T.VARGHESE THOMAS T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA K.R.MONISHA SHRUTHI SARA JACOB ARJUN RAJA P.C. SREENATH VIJAYARAGHAVAN** ## **RESPONDENT:** **B.P. RAMESHAN, AGED 50 YEARS, S/O. P. V. NARAYANAN, NANDAGOPURAM, VADAKKEKAVU, PEROLE, NILESHWAR, PEROLE VILLAGE, HOSDURG TALUK, KASARGOD – 671 315.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.03.2022, ALONG WITH RCRev.55/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV.Nos.50, 55 and 56 OF 2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **R.C.REV.NO.56 OF 2022** **AGAINST THE JUDGMENT DATED 31.01.2022 IN R.C.A.NO.10 OF 2020 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - II), KASARGOD CONFIRMING THE ORDER DATED 06.01.2020 IN R.C.P.NO.3 OF 2016 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF), HOSDURG** ## **REVISION PETITIONER:** **SURESH KUMAR N.K,AGED 55 YEARS, S/O. E.V.KANDAN KORAN, WOOD ART, KAYYUR ROAD, P.O., CHERUVATHUR, CHERUVATHUR VILLAGE, HOSDURG TALUK, PINCODE -671 313.** **BY ADVS. PHILIP T.VARGHESE THOMAS T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA K.R.MONISHA SHRUTHI SARA JACOB ARJUN RAJA P.C. SREENATH VIJAYARAGHAVAN** ## **RESPONDENT:** **B.P. RAMESHAN, AGED 47 YEARS, S/O. P.V.NARAYANAN, NANDAGOPURAM, VADAKKEKAVU, PEROLE, NILESHWAR, PEROLE VILLAGE, HOSDURG TALUK, KASARGOD, PINCODE - 671 314.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.03.2022, ALONG WITH RCRev.55/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV.Nos.50, 55 and 56 OF 2022 4 ## **ORDER** ## **Anil K. Narendran, J.** These Rent Control Revisions filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, arise out of the common order dated 06.01.2020 of the Rent Control Court (Munsiff), Hosdurg in R.C.P.Nos.1, 2 and 3 of 2016 and the common judgment dated 31.01.2022 of the Rent Control Appellate Authority (Additional District Judge – II), Kasaragod in R.C.A.Nos.8, 9 and 10 of 2020. Since common issues are raised, these Rent Control Revisions are heard together and are being disposed of by this common order. 2. R.C.Rev.No.50 of 2022 arises out of R.C.P.No.2 of 2016, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Act seeking eviction of the tenant from the petition schedule shop room on the ground that the landlord, who is presently conducting electronic business under the name and style ‘Neethu Electronics’ at Nileshwar, in a tenanted premises, wants to shift his business to the petition schedule shop room and the adjacent shop rooms. In the Rent Control Petition, it is stated that the landlord purchased the petition schedule R.C.REV.Nos.50, 55 and 56 OF 2022 5 shop room on 05.07.2014 with an intention to shift his business from Nileshwar. At present, he is facing eviction proceedings in the tenanted premises at Nileshwar. Other than the petition schedule shop room and the adjacent shop rooms, he has no other building in the locality to shift his business. The landlord has also contended that the tenant is not depending upon the income derived from the business conducted in the tenanted premises for his livelihood. Before the Rent Control Court, the tenant filed counter statement opposing the order of eviction sought for in R.C.P.No.2 of 2016. 3. R.C.Rev.No.55 of 2022 arises out of R.C.P.No.1 of 2016, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Act seeking eviction of the tenant from the petition schedule shop room on the ground that the landlord, who is presently conducting electronic business under the name and style ‘Neethu Electronics’ at Nileshwar, in a tenanted premises, wants to shift his business to the petition schedule shop room and the adjacent shop rooms. In the Rent Control Petition, it is stated that the landlord purchased the petition schedule shop room on 05.07.2014 with an intention to shift his R.C.REV.Nos.50, 55 and 56 OF 2022 6 business from Nileshwar. At present, he is facing eviction proceedings in the tenanted premises at Nileshwar. Other than the petition schedule shop room and the adjacent shop rooms, he has no other building in the locality to shift his business. The landlord has also contended that the tenant is not depending upon the income derived from the business conducted in the tenanted premises for his livelihood. Before the Rent Control Court, the tenant filed counter statement opposing the order of eviction sought for in R.C.P.No.1 of 2016. 4. R.C.Rev.No.56 of 2022 arises out of R.C.P.No.3 of 2016, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Act seeking eviction of the tenant from the petition schedule shop room on the ground that the landlord, who is presently conducting electronic business under the name and style ‘Neethu Electronics’ at Nileshwar, in a tenanted premises, wants to shift his business to the petition schedule shop room and the adjacent shop rooms. In the Rent Control Petition, it is stated that the landlord purchased the petition schedule shop room on 05.07.2014 with an intention to shift his business from Nileshwar. At present, he is facing eviction R.C.REV.Nos.50, 55 and 56 OF 2022 7 proceedings in the tenanted premises at Nileshwar. Other than the petition schedule shop room and the adjacent shop rooms, he has no other building in the locality to shift his business. The landlord has also contended that the tenant is not depending upon the income derived from the business conducted in the tenanted premises for his livelihood. Before the Rent Control Court, the tenant filed counter statement opposing the order of eviction sought for in R.C.P.No.3 of 2016. 5. R.C.P.No.1 of 2016 was tried along with R.C.P.Nos.2 and 3 of 2016. On the side of the landlord Exts.A1 to A28 were marked and the landlord was examined as PW1. On the side of the tenants Exts.B1 to B5 were marked and RW1 to RW3 were examined. After considering the pleadings and evidence on record, the Rent Control Court passed an order of eviction under Sections 11(2)(b) and 11(3) of the Act in all the Rent Control Petitions. The Rent Control Court found that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bonafide; that the provisions under the first proviso to Section 11(3) of the Act has no application to the facts of the case; and that the respective R.C.REV.Nos.50, 55 and 56 OF 2022 8 tenants are not entitled to protection under the second proviso to Section 11(3) of the Act. Challenging the order of eviction granted by the Rent Control Court, the tenants filed R.C.A.Nos.8, 9 and 10 of 2020 before the Rent Control Appellate Authority, Kasaragod, which ended in dismissal by the common judgment 31.01.2022, thereby confirming the order of eviction granted by the Rent Control Court. Feeling aggrieved by the order of eviction granted by the Rent Control Court, which now stands confirmed by the Rent Control Appellate Authority, the petitioners-tenants in the respective Rent Control Petitions are before this Court in this Rent Control Revisions, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 6. Heard the learned counsel for the petitionerstenants in the respective Rent Control Revisions. 7. The issue that arises for consideration in these Rent Control Revisions is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court in the respective Rent Control Petitions, which now stands confirmed by the judgment of the Appellate Authority in the concerned Rent Control Appeals. 8. Section 11 of the Kerala Buildings (Lease and R.C.REV.Nos.50, 55 and 56 OF 2022 9 Rent Control) Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the first proviso to Section 11(2)(b), an application under this subsection shall be made only if the landlord has sent a registered notice to the tenant intimating the default and R.C.REV.Nos.50, 55 and 56 OF 2022 10 the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order. 9. I **n Ouseph Mathai v. Abdul Khader [(2002) 1 SCC 319]** the Apex Court noticed that the Kerala Buildings (Lease and Rent Control) Act is a social welfare legislation meant to protect and safeguard the interests of the tenants but it does not confer unfettered powers on the tenants to remain in possession of the leased premises notwithstanding the compliance with directions of the court or the provisions of the statute. The Act is intended to protect the interests of bona fide tenants in possession. The Act has put restrictions on the right of the landlord to seek eviction of the tenant on R.C.REV.Nos.50, 55 and 56 OF 2022 11 the ground of defaults in the payment of rent which are regulated by Section 11(2). A tenant is under an obligation to pay or tender the rent in respect of the building under his occupation within 15 days after the expiry of time fixed in the agreement of tenancy or in the absence of such agreement by the last day of next month falling for which the rent is payable. Non-payment of rent, as per contract and statutory provisions, entitles the landlord to seek possession only after compliance of sending a registered notice to tenants intimating the default. If after the receipt of such a notice a genuine tenant pays or tenders the rent together with interest at 6% per annum and postal charges, the right accrued to the landlord to get possession on this ground is defeated. Even after passing of the eviction order, a further right is conferred upon tenant in terms of Section 11(2)(c) of the Act. It is only such tenant who defaults to pay the rent at all the three relevant times, the law requires him to be dispossessed. 10. The Rent Control Court as well as the Appellate Authority found that the tenant in the respective Rent Control Petitions defaulted payment of monthly rent, which was demanded by issuing a statutory notice. After R.C.REV.Nos.50, 55 and 56 OF 2022 12 considering the pleadings and materials on record, the Rent Control Court and also the Appellate Authority found that the tenant in the respective Rent Control Petitions have kept in arrears the rent payable in respect of the petition schedule shop room from 01.07.2014. Though the tenants raised a plea of discharge, such a plea was not supported by any receipt as contemplated under Section 9(2) of the Act. After considering the pleadings and evidence on record, the authorities below have arrived at a conclusion that the landlord is entitled for an order of eviction under Section 11(2)(b) of the Act. The aforesaid finding of the authorities below, is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 11. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent R.C.REV.Nos.50, 55 and 56 OF 2022 13 Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 12. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing R.C.REV.Nos.50, 55 and 56 OF 2022 14 himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 13. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. 14. The bona fide need projected in the respective Rent Control Petitions, for seeking an order of eviction under Section 11(3) of the Act is that the landlord require the petition schedule shop room in the respective Rent Control Petitions for shifting his business from Nileshwar. The specific case of the landlord is that in the year 2014 he R.C.REV.Nos.50, 55 and 56 OF 2022 15 purchased the building in question with an intention to shift the business which he was conducting in a tenanted premises at Nileshwar, to his own building. The Rent Control Petition was filed in the year 2016. The fact that the landlord is conducting business at Nileshwar in a tenanted premises is not in dispute. Before the Rent Control Court, the tenants raised a contention that the petition schedule building is not suitable for conducting the business as proposed by the landlord. 15. In **Sait Nagee Purushotham and Co. Ltd. v. Vimalabai Prabhulal [(2005) 8 SCC 252]** the Apex Court held that, it is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. The landlord is the best judge of his need or requirement and the manner in which he should conduct his affairs. It is not for the tenant to dictate terms as to which premises will be suitable or not for the proposed business of the landlord, or to advice the landlord what he should do and what he should not do. Neither the tenant nor the Court can thrust upon its opinion or wisdom on the landlord and dictate R.C.REV.Nos.50, 55 and 56 OF 2022 16 terms in this regard. 16. The bona fide need projected in the Rent Control Petition is proved by the oral testimony of PW1. Nothing could be brought out during cross examination of PW1 to discredit his version. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected for seeking an order of eviction of the tenant in the respective Rent Control Petitions is bona fide and that finding is now confirmed by the Rent Control Appellate Authority in the appeals filed by the tenants, invoking the provisions under Section 18(1)(b) of the Act. The aforesaid finding of the authorities below, is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 17. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular R.C.REV.Nos.50, 55 and 56 OF 2022 17 case it will be just and proper to do so. 18. In **M.L. Prabhakar v. Rajiv Singal [(2001) 2** **SCC 355]** the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in **Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141]** , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and nondisclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in R.C.REV.Nos.50, 55 and 56 OF 2022 18 respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question. 19. In **Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21]** the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in R.C.REV.Nos.50, 55 and 56 OF 2022 19 possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. 20. In **Vasantha Mallan** , relying on the law laid down by the Apex Court in **M.L. Prabhakar [(2001) 2 SCC 355]** the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as R.C.REV.Nos.50, 55 and 56 OF 2022 20 not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non-occupation of the premises for his alleged needs. 21. In the Rent Control Petition, the landlord has made a specific averment that he is not having any other building in the locality for the need projected in the Rent Control Petitions. It is well settled that it is for the tenant to discharge the initial burden to attract the first proviso to Section 11(3) of the Act, by pointing out that the landlord is having vacant building in his possession, which is suitable for the need projected in the Rent Control Petitions. In the absence of any such case in the counter statement, the Rent Control Court and the Appellate Authority found that the first proviso to Section 11(3) of the Act has no application in the facts of the cases on hand. The aforesaid finding of the authorities below, is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. R.C.REV.Nos.50, 55 and 56 OF 2022 21 22. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 23. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only R.C.REV.Nos.50, 55 and 56 OF 2022 22 and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden R.C.REV.Nos.50, 55 and 56 OF 2022 23 of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 24. Insofar as the first limb of the second proviso to Section 11(3) of the Act is concerned, other than the oral testimony of RW1 to RW3, nothing was brought out to show that the tenants are depending mainly for their livelihood, on the income derived from the business conducted in the petition schedule shop rooms. Insofar as the second limb of the second proviso to Section 11(3) of the Act is concerned, the tenants have miserably failed to prove that there is on other suitable building in the locality where they can shift their business conducted in the petition schedule shop rooms. In the absence of any cogent and convincing evidence, the Rent Control Court and the Appellate Authority concurrently found that the tenants are not entitled to the protection under the second proviso to Section 11(3) of the Act. The aforesaid finding of the authorities below, is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this R.C.REV.Nos.50, 55 and 56 OF 2022 24 Court under Section 20 of the Act 25. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion. 26. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, R.C.REV.Nos.50, 55 and 56 OF 2022 25 even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘ ’ - propriety it cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 27. In **T. Sivasubramaniam v. Kasinath Pujari** **[(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an R.C.REV.Nos.50, 55 and 56 OF 2022 26 appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 28. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court R.C.REV.Nos.50, 55 and 56 OF 2022 27 under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional - court will not be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 29. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate R.C.REV.Nos.50, 55 and 56 OF 2022 28 evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 30. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 31. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenants under Section 11(3) of the Act is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the R.C.REV.Nos.50, 55 and 56 OF 2022 29 orders of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act. 32. The learned counsel for the petitioners-tenants would submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant in the respective Rent Control Petitions may be given at least six months' time to give vacant possession of the petition schedule shop rooms. 33. On the above request made by the learned counsel for the tenants, the learned counsel for the respondent-landlord would submit that a reasonable period for surrendering the vacant possession of the petition schedule shop room in the respective Rent Control Petitions can be granted, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 34. The learned counsel for the tenants would submit that the tenants are prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he give R.C.REV.Nos.50, 55 and 56 OF 2022 30 vacant possession of the petition schedule shop room to the landlord. 35. In such circumstances, these Rent Control Revisions are dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting six months' time to the petitioners-tenants, to surrender vacant possession of the petition schedule shop room in the respective Rent Control Petitions to the respondent-landlord, considering the situation prevailing in the country on account of COVID-19 pandemic, subject to the following conditions: - (i) The respondent-tenant in the respective Rent Control Petitions shall file affidavits before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule shop rooms to the petitionerlandlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid R.C.REV.Nos.50, 55 and 56 OF 2022 31 licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the respective Rent Control Petitions shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondenttenant in the respective Rent Control Petitions failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN