VARGHESE EAPEN Vs. VARGHESE

JUDGEMENT

(1.) THIS Civil Revision Petition is filed against the order in R. C. A. No. 57 of 1998 on the file of the Additional Rent Control Appellate authority, Kottayam, which was preferred against the order in R. C. P. No. 29 of 1996. R. C. P. No. 29 of 1996 was filed by the landlord on two grounds. The landlord filed the petition for eviction under Ss. 11 (3) and 11 (4) (iii) of the kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the act' ). The landlord required the building to meet the needs of his son in order to start a business in cool drinks and light refreshments in the building. The son who is married remains unemployed and the schedule building is required for the business aforesaid. The son depended on the landlord. Another ground for eviction was under S. 11 (4) (ii) of the Act.

(2.) THE allegation was that the tenant is in possession of another building close to the schedule building wherein he is conducting photostat business, telephone booth and typewriting job work. THE tenant in his objection contended that the building was previously under the occupation of his father and on his death in 1988 he took over the business and continued occupation of the building conducting bakery business. From time to time on the compulsion of the landlord and threat of eviction the rent was enhanced, which originally commenced at the rate of Rs. 40/- per month. He disputed the need alleged for the son of the landlord conducting that he has no experience in the business. THE son is having his own income and vocation and not a dependent on the father. THE need alleged, according to the tenant, was only a pretext for eviction for the purpose of collecting huge rent and security on his eviction from the premises. THE tenant denied of having possession over any other building. He also claimed the benefit of the Second Proviso to S. 11 (3) of the act.

(3.) THE next question is whether the tenant is entitled to the benefit of the Second Proviso to S. 11 (3) of the Act. THE Proviso has got two limbs; one is that the tenant should depend for his livelihood mainly from the income derived from the business conducted in the building and the other is that there is no suitable building available in the locality to carry out such trade or business. A reading of the Proviso shows that both of these facts have to be proved by the tenant. It is not enough, if the tenant proved that he is depending on the income derived from the business. He has to further prove that there is no other alternate building. If he fails to prove the above, he will not be entitled to the benefit of the Second Proviso. So far as the alternate accommodation is concerned, the tenant examined the Accommodation Controller as cpw3. CPW3 in his evidence stated that he brought the vacancy register from 1. 1. 1991. As per this, there is no vacant building. THE register is marked as ext. XI. In cross examination, he has stated that the vacancy will be noted only if he is informed. He further stated that the landlord may give building on rent without informing him. When he was confronted with Ext. A12, he submitted that it does not find a place in the register. Learned counsel for the petitioner contended that the decision reported in Kochappan Filial v. Chellappan-1976 KLT 1 says that the burden is on the tenant to prove that there is no building available in the locality. THE best evidence that the tenant can give is to get information from the Accommodation Controller regarding the availability of the building. When the authority is not able to find out any vacant building, the court has to accept that evidence. Before considering the arguments on this aspect, we will go through the evidence adduced by the parties on this question.