KALLAT KATHEESA Vs. EDAPPARA KUNHAMMED

JUDGEMENT

(1.) CONCURRENT findings of the Rent Control Court and the Rent Control Appellate Authority, against the revision petitioner herein in a proceeding for eviction brought under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') are under challenge in this revision brought by the landlady. The petition schedule building was entrusted to the respondent/tenant in 1991, and now the rent being paid by the tenant is Rs. 725/ - per month for the petition schedule building consisting of four rooms covering a total space of more than 500 sq. ft. The landlady filed R.C.P. No. 1/2007 before the Rent Control Court/Munsiff Court, Perambra under Section 11(3) of the Act on contention that she needs the petition schedule building for starting a lady's fancy shop of her own, for her livelihood. Her further case is that she does not have any other building in her possession for the said purpose, that the tenant is not solely dependent on the income derived from the business being conducted by him in the petition schedule building, and that so many vacant rooms are available in the same locality for shifting the business of the tenant, in case of eviction. The respondent/tenant entered appearance and filed counter statement contending that the need alleged by the petitioner is in fact a ruse for eviction, she is not in fact in need of having a business of her own when she has income from other sources, that the income from his business, being conducted in the tenanted premises, is his sole source of income for livelihood, and that there is no vacant room in the locality for shifting his business.

(2.) ON the basis of the pleadings, the trial court formulated the points for decision and the case proceeded for trial. During trial, the petitioner examined herself as PW1 and marked Exts. A1 to A6 on her side. The respondent/tenant and three other witnesses were examined on his side and Ext. B1 document was marked. On an appreciation of oral and documentary evidence, the trial court found that the need projected by the landlady is in fact bonafide, but she is not entitled to get an order of eviction under Section 11(3) of the Act for the reason that the tenant is entitled for the protection under the 2nd proviso to Section 11(3) of the Act. The finding of the trial court is that the tenant's business in the tenanted premises is his only source of income, and that vacant rooms are not available in the same locality for shifting the tenant's business. Accordingly, the trial court dismissed R.C.P. No. 1/2007 by order dated 4.11.2007. Aggrieved by the dismissal of the eviction petition, the landlady filed appeal before the appellate authority (District Court, Kozhikode) as R.C.A. No. 8/2008. The tenant also filed a cross objection challenging the findings of the trial court that the landlady bonafidely needs the building for her own purposes. By judgment dated 23.12.2010, the appellate authority dismissed the rent control appeal and also the cross appeal brought by the tenant, on the finding that the trial court has made correct findings and decisions on the points in dispute. Now the concurrent findings of the authorities below are challenged by the landlady in this revision petition, where the scope of enquiry is only to find whether there is any illegality, irregularity or impropriety in the decisions and orders of the authorities below.

(3.) NOW the very material question for decision is whether the tenant in this case is entitled for the protection under the 2nd proviso to Section 11(3) of the Act. On a perusal of the case records including the materials brought in as evidence, we find that the landlady has no definite case, and there is also no definite evidence, that the tenant has any other source of income, or that the business being conducted in the tenanted premises is not his only source of income, or that he is solely dependant on the said business for his livelihood. On the other hand the respondent/tenant is definite in his evidence that he has no other source of income and that he is solely dependant on the income derived from the business being conducted in the tenanted premises. The evidence given by the tenant on this aspect is acceptable. Of course, the landlady has produced Exhibits A4 to A6 documents to prove her case that vacant buildings are available in the locality. As regards Ext. A6 document relating to seven rooms there is the definite finding on the basis of the evidence given by RW4 that those buildings mentioned in Ext. A6 document are occupied by different tenants, and that none of these rooms is available as vacant room. The evidence of RW4 stands not discredited. As regards the rooms mentioned in Exts. A4 and A5 documents also there is the evidence of RW3 that none of these rooms is available now as vacant, and that all these rooms are occupied by different tenants. Of course, it is true that the burden is on the tenant to prove the protection under the twin limbs of the 2nd proviso. In discharge of the initial burden, the landlady produced Exts. A4 to A6 documents to substantiate her case that vacant rooms are available in the locality. But it stands proved by the evidence of RW3 and RW4 that all these rooms are occupied by different tenants. The landlady has no case that any other room or building than those covered by Exts. A4 to A6 documents is available as vacant room in the locality. In the above circumstances, we find that both the authorities below have come to the right finding that the tenant in this case is entitled for the protection of the 2nd proviso to Section 11(3) of the Act.