LUCY VARGHESE Vs. KARUNAKARAN ACHARY

JUDGEMENT

(1.) Under challenge in his revision petition under Section 20 filed by the landlady and the legal heirs of deceased original landlord is the judgment of the Rent Control Appellate Authority dismissing the Rent Control Petition which was filed to evict the Respondent tenant on the ground of bona fide need of own occupation. The first revision Petitioner is the widow of the deceased landlord and other revision Petitioners are the children of the deceased landlord. The petition schedule building is one room in a larger building consisting of two main rooms with veranda in the front and a lean-to at the back. In the adjacent building the brother of the deceased husband of the first revision Petitioner is conducting business in stationery and cool bar. But during the pendency of the RCP he changed his business to dry fish. The need projected by the landlady was that she needs the petition schedule premises so that she can conduct business in vegetables and fruits. She averred in the Rent Control Petition that after the demise of her husband she is short of funds for maintaining herself and her family, that if the proposed business is conducted in the petition schedule building, she will have the support and assistance of her brother-in-law who is doing business in the adjacent room. In anticipation of a contention that tenant is entitled for protection to second proviso, it is averred in the RCP itself that tenant is not depending mainly for his livelihood on the income derived from the petition schedule building and that other buildings are available in the locality for the tenant to shift his business if he so desires. The bona fides of the need was disputed by the tenant before the Rent Control Court. It was pointed out that the lean-to portion of the building, where the husband of the first revision Petitioner was conducting business, is vacant and that if it becomes necessary, it will be possible for the first revision Petitioner to conduct business in that portion. The tenant also contended that he satisfies both the ingredients of the second proviso to Sub-section (3) of Section 11 and hence even if the need is found to be bona fide he is not liable to be evicted. The Rent Control Court enquired into the matter and at trial evidence consisted of Exts. A-1 to A-6, B-1 and B-2 and commission report C-1 & sketch C-1(a). Oral evidence consisted of P.W. 1 the first revision Petitioner landlady, P.W. 2 the Advocate Commissioner, P.W. 3 the Secretary of the Panchayat and P.W. 4 Binukumar who is the witness cited by the landlady to show that other buildings are available in the locality. On the side of the tenant the solitary evidence was his own evidence as C.P.W. 1. Learned Rent Control Court on evaluating the evidence came to the conclusion that need was bona fide and that the lean-to portion of buildings where the brother of the husband of the first revision Petitioner is conducting the business is not suitable for conducting business proposed by the first revision Petitioner. It was also found that the tenant was unsuccessful in proving that he satisfies either of the ingredients of the second proviso. Accordingly order of eviction was passed against the tenant. The tenant preferred an appeal to the Rent Control Appellate Authority. That authority under the impugned judgment has reversed all the findings of the Rent Control Court and dismissed the RCP.

(2.) In this revision petition under Section 20 various grounds have been raised assailing the findings entered by the Appellate Authority on the various aspects of the case and Sri M. Narendrakumar, learned Counsel for revision Petitioners addressed us very extensively on the basis of all those grounds. All the submissions of Mr. Narendrakumar were stiffly resisted by Sri B. Pramod, learned Counsel for the Respondent, who supported the impugned judgment of the Rent Control Appellate Authority on the various reasons stated in that judgment. Mr. Narendrakumar submitted that the appreciation of the oral evidence adduced by P.W. 1 by the learned District Judge was erroneous. P.W. 1 was a widowed woman and her evidence that she needs to do business in the petition schedule building was not shaken in cross-examination. It is not suggested to P.W. 1 that on account of any physical or mental infirmity she is incapable of conducting the proposed business. That being so, lack of experience should not have been a reason for holding that the need projected by P.W. 1 is not bona fide. One can gain experience only by starting something. The Appellate Authority has by passing the impugned judgment denied the opportunity to the first revision Petitioner to start business and gain experience by doing business. There is no challenge on P.W. 1 's version that she will have the support of her brother-in-law, who is admittedly an experienced businessman. The burden of the proof in the context of the second proviso was wrongly cast by the learned District Judge on the landlady. Learned District Judge did not have any regard for the various decisions of this Court including the decision in Kochappan Pillai v. Chellappan,1976 KerLT 1 and Francis v. Sreedevi Varassiar, 2003 2 KerLT 230 (F.B.). Lean-to portion of the building where the husband's brother is conducting business admittedly and evidently does not have frontage of road. In order that proposed business is conducted profitably it is necessary that the customers should be able to access the building from the main road.

(3.) Sri Pramod, learned Counsel for the Respondent submitted that within an year or two of the demise of her husband the first revision Petitioner filed an original suit before the Munsiff Court seeking to evict the Respondent. In that suit the need which was projected by the first revision Petitioner was the need of conducting tailoring business, a business which could be conducted in premises which does not have main road frontage. That suit was dismissed on account of extension of the rent control statute to the area in question and it is based on the dismissal that the present RCP was instituted invoking an entirely different need. The absence of bona fide in the claim is evident from this, according to Mr. Pramod. Mr. Pramod submitted that when both sides have adduced evidence on a particular aspect, burden of proof is academic. The revision Petitioners of their own enshouldered burden to show that tenant is not entitled for protection to second proviso but miserably failed in their endeavour. The Appellate Authority was justified in holding on the basis of evidence adduced by landlords that such evidence fall short of holding that the tenant has other source of income and that other buildings are available in the locality for conducting business.