PARAMBATH MUHAMMED HARIS Vs. MADATHIL SOUDABI

JUDGEMENT

(1.) THE petitioner is the tenant in R.C.P. No. 35 of 2010 on the file of the Rent Control Court, Kannur, a petition filed by the respondent landlord for an order of eviction under sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act", for short. The landlord had in the petition for eviction averred that she bona fide needs the petition schedule building to enable her son who was examined as P.W. 1 to start a business in automobile accessories. She had also contended that the respondent owns a large number of buildings in Kannur town where the petition schedule building is situate. Upon receipt of notice, the tenant entered appearance and filed a counter statement denying and disputing the bona fide need put forward by the landlord. He also denied the averment that he is in possession of other buildings in the locality. He also contended that he is entitled to the benefit of the second proviso to section 11(3) of the Act.

(2.) BEFORE the Rent Control Court, the son of the landlord for whose benefit an order of eviction was sought, was examined as P.W. 1 and Exts. A1 to A4 were produced and marked. The tenant examined himself as RW1 and produced and marked Exts. B1 to B4. The rent control court considered the rival contentions and the evidence on record and held that the need put forward is bona fide. The rent control court also held that the tenant has not succeeded in establishing the ingredients of both the limbs of the second proviso to section 11(3) of the Act. The claim of the landlord for an order of eviction under section 11(4)(iii) of the Act was repelled on the ground that there is no pleading in support of the said contention. Consequently, an order of eviction under section 11(3) was passed directing the tenant to put the landlord in possession of the petition schedule building within two months from the date of order, namely 18.10.2010. Aggrieved thereby, the tenant filed R.C.A. No. 31 of 2011 on the file of the Rent Control Appellate Authority, Thalassery. By judgment delivered on 07.08.2015, the rent control appellate authority concurred with the rent control court and dismissed the appeal. Hence this revision petition.

(3.) THAT takes us to the question whether the tenant is entitled to the protection of the second proviso to section 11(3) of the Act. It is now well settled by a series of decisions of this court that the burden is on the tenant to prove the ingredients of both the limbs of the second proviso to sub -section (3) of section 11 of the Act. Apart from merely contending that he is entitled to the benefit of the second proviso to section 11(3) of the Act, the tenant has not produced the sales tax returns or income tax returns. It is not in dispute that the tenant is an assessee under the Value Added Tax Act, 2003. He had when examined as RW1 admitted that he is having 2/3rd share in a partnership business under the name and style "Farag Hostel and Lodging" and that he owns two residential buildings which have been let out on rent to the tenants. He had further admitted the fact that the building which formerly belonged to his mother, of which he is now a co -owner has been let out on a monthly rent of Rs. 9,000/ -. The tenant has also not taken steps to show that other suitable vacant rooms are not available in the locality. In such circumstances, as the tenant has not discharged the burden of proving the ingredients of both the limbs of the second proviso to section 11(3) of the Act, no exception can be taken to the finding in that regard entered by the rent control court and the appellate authority.