Thayakath Jamal Nassar v. Chundantavida Abdul Sathar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** **RCRev..No. 292 of 2017** **AGAINST THE ORDER/JUDGMENT IN RCP 164/2012 DATED 31-12-2012 of RENT CONTROL COURT (PRL.MUNSIFF IN CHARGE OF ADDL.RENT CONTROLLER), KANNUR** **AGAINST THE JUDGMENT IN RCA 28/2013 DATED 24-11-2016 of RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY** ## **REVISION PETITIONER/RESPONDENT/PETITIONER :** **THAYAKATH JAMAL NASSAR, S/O.S.A.P.USMAN, AYISHABAD, NALUVAYAL, KANNUR I AMSOM, KODAPARAMBA WARD, KANNUR DISTRICT, PIN-670 003.** **BY ADVS.** **SRI.P.U.SHAILAJAN** **SMT.D.N.NISHANI** **SMT.VIDYA KURIAKOSE SRI.M.SURESH KUMAR SRI.V.SREEJITH (K/1398/2000)** ## **RESPONDENT/APPELLANT/RESPONDENT :** **CHUNDANTAVIDA ABDUL SATHAR, S/O. MOIDEEN KUNHI, DOOR NO.AL 359, RUBEENA FANCY, NEAR D.I.S.HIGHER SECONDARY SCHOOL, KANNUR DISTRICT, PIN-670 009.** **BY ADVS.** **SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH** **SRI.E.MOHAMMED SHAFI** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No. 292 of 2017 2 ## **ORDER** ## **Harilal, J** Being aggrieved by the judgment passed by the Rent Control Appellate Authority, Thalassery in R.C.A.No.28/2013, the revision petitioner/landlord has approached this Court with this revision. (Parties are referred to as in the status of the rent control petition). The petitioner/landlord filed rent control petition under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 [for short, the Act] on the ground that he _bona fide_ requires the petition schedule building to start a business of fancy and stationery items. He has no other buildings of his own in his possession to start the said business and several other vacant buildings are available in the RCRev..No. 292 of 2017 3 locality to shift the business of the respondent/tenant from the tenanted premises. The respondent/tenant resisted the said contention that the need projected in the petition is not _bona fide_ and he is entitled to get protection under the second proviso to Section 11(3) of the Act. Both parties adduced evidence and after considering the evidence on record, the rent control court found that the need projected by the petitioner/landlord in the petition is _bona fide_ and the claim for eviction is not barred by the first proviso and the respondent/tenant is not entitled to get protection under the second proviso to Section 11(3) of the Act. But in the appeal, the appellate authority reversed the findings of the rent control court and found that the respondent/tenant is entitled to get protection under the second proviso RCRev..No. 292 of 2017 4 to Section 11(3) of the Act. Thus, the legality and propriety of the divergent findings under the 2[nd] proviso to Section 11(3) of the Act has come up in this revision. 2. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 3. The learned counsel for the revision petitioner highlighted the sole point that the rent control appellate authority went wrong by reversing the findings of the rent control court, on the second proviso to Section 11(3) of the Act, on a finding that the assertion of the respondent/tenant to the effect that he is mainly depending on the income derived from the business in the tenanted premises and no other buildings are available in the locality to shift his RCRev..No. 292 of 2017 5 business from the tenanted premises, is sufficient to discharge the burden of proof under the second proviso to Section 11(3) of the Act. The learned counsel for the revision petitioner/landlord in order to fortify the said argument cited the full bench decision of this Court in _**Francis v. Sreedevi Varassiar**_ [ **2003 (2) KLT 230]** . Therefore, the sole question to be considered in this revision petition is whether there is any illegality or impropriety in the findings of the appellate authority that the mere assertion of the respondent/tenant alone is sufficient to discharge the burden of proof under the second proviso to Section 11(3) of the Act. 4. As rightly submitted by the learned counsel for the revision petitioner and going by the impugned judgment, we are also find that the RCRev..No. 292 of 2017 6 appellate authority reversed the findings of the rent control court under the second proviso to Section 11(3) of the Act on a finding that the oral assertion of the respondent alone is sufficient to discharge the initial burden of proof cast on him. As rightly pointed out the learned counsel for the revision petitioner the full bench of this Court considered the question on whom the burden of proof lies under the second proviso to Section 11(3) of the Act and the full bench held as follows: _1. The second proviso carves out an exception to the rule embodied in_ _S.11(3). The burden of proving the relevant facts lies on the tenant. The_ _tenant has to prove that he is dependent_ _on the income from the trade or_ RCRev..No. 292 of 2017 7 _business being carried on by him in the premises in dispute for his livelihood. He is to further prove that a suitable alternative accommodation is not available._ 5. Further in _**Shahul Hameed A. v. P.E.Abdu**_ _**Razak**_ [ **2016 (5) KHC 820]** another Division Bench of this Court held that no tenant can claim protection under the second proviso to Section 11(3) of the Act after hiding his income from the court and it is for the tenant to prove his income by adducing positive evidence. Similarly, the burden of proof is on the tenant, to prove the non availability of vacant and suitable shop rooms in the locality, by producing positive evidence. In the instant case, no evidence other than an oral assertion of the tenant was RCRev..No. 292 of 2017 8 adduced to discharge burden of proof under the second proviso. In the light of the decisions referred above, we hold that the appellate authority went wrong by reversing the findings of the rent control court and held erroneously that a mere assertion of tenant alone is sufficient to discharge the burden of proof under the second proviso to Section 11(3) of the Act. Hence, we are inclined to reverse the findings of the appellate authority and restore the findings of the rent control court that the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act and we do so. 6. Consequently, the order of eviction passed by the rent control court will stand restored on the files and the respondent/tenant is directed to put the RCRev..No. 292 of 2017 9 petitioner in possession of the petition schedule building. 7. At this juncture, the learned counsel for the respondent/tenant sought one year time to vacate the tenanted premises. Having regard to the nature of business, which is being conducted in the tenanted premises, the respondent/tenant is hereby granted eight months' time 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 eight months from today._ - _(2) The respondent/tenant shall deposit the entire_ RCRev..No. 292 of 2017 10 _arrears, if any, within one month 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, 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 revision petitioner/landlord will be at liberty to proceed with the execution of the eviction order._ Sd/- **K.HARILAL, JUDGE** sd/- **P.SOMARAJAN, JUDGE** AMV/30/01/2019 RCRev..No. 292 of 2017 11