THANUJA SUNDERDAS Vs. SISIRKUMAR RAJ

JUDGEMENT

(1.) Suryamkandi Sisirkumar Raj, s/o Rajaratnam along with his two sons Suryamkandi Sreemalkumar Raj and Suryamkandi Nirmalkumar, the landlords of the premises of Room No. 3/546 B of Calicut Corporation sought eviction of the tenants T. Thanuja Sunderdas, widow of V. M. Sunderdas, her daughter Deepa, and another minor daughter Shilpa and also minor son Vishnu, under Ss. 11(3) and 11(4) (i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as "the Act"). The Additional Munsiff I, Kozhikode exercising the power of Rent Controller vide orders dated 21st Aug., 2003, has held that the second petitioner required the tenanted room for starting a business for his father dependent on him and ordered eviction under Sec. 11 (3) of the Act of 1965. Aggrieved by the order aforesaid, the tenants carried an appeal which was dismissed by the District Judge, Kozhikode, exercising the power of the Rent Control Appellate Authority vide orders dated 8th April, 2005. Still aggrieved, the tenants have filed this revision challenging the aforesaid orders.

(2.) The learned Division Bench, before which the matter came up for hearing, while first adverting to the contentions raised by the tenants with regard to the landlord not offering himself for examination to prove the bona fides of his need of the building leased out and therefore the requirement of the landlord having not been proved, by referring to the judicial precedents for and against the parties observed that, "We may, perhaps be able to say that the factum of bona fides to be proved is like any other facts which could be proved by adducing cogent evidence, even in the absence of the landlord being volunteering for an examination in court". Having observed so, learned Division Bench further observed that the "issue could not he solved on determination of the rival contentions of the learned counsel for the parties as mentioned above, as the tenant has sought the protection of the second proviso to Sec. 11(3) of the Act".

(3.) The protection contained in the second proviso to Sec. 11(3) of the Act is in two limbs. The first limb of the second proviso is as to whether the tenant is mainly dependent upon the income derived out the business conducted in the tenanted premises; the second limb of the said proviso pertains to there being no other suitable building in the locality for such tenant to carry on such trade or business. The learned Division Bench observed that a finding on the first limb of the second proviso too would not give a quietus to the dispute between the parties as the consideration has to step over to the second limb of the second proviso to Sec. 11 (3) of the Act. On the second limb of the second proviso to Sec. 11(3) of the Act, the learned Division Bench further observed that, it is the duty of the tenant to prove that there are no other suitable building to which his business could be shifted in case an order u/S 11(3) of the Act is passed in favour of the landlord. On this issue, the tenant had relied upon the decision in Sadanandan Vs. Kunheen, 1991 (2) KLT 628 . In the judicial precedent in Sadanandan Vs. Kunheen (supra), as per the stand taken by the petitioners, they had asserted in the examination in chief that no other suitable building was available in the locality at the material point of time and further that, this assertion has never been questioned in cross-examination and further when the landlord who did not speak about the availability of any other building in the locality, the burden of the tenant so to show that he would fall in the exception contained in the second limb of the second proviso to Sec. 11(3) of the Act stood discharged, or in any case, the burden stood shifted to the landlord to prove otherwise and inasmuch as, the landlord had not got his own statement recorded, the revision had to he allowed. The learned Division Bench while dealing with this contention then made reference to a Division Bench decision of this Court in Kochappan Pillai Vs. Chellappan, 1976 KLT 1 wherein it was held that when one claims the benefit of exemption from a statute, the entire presumption shall always be against him and the burden of proof that he comes under the shelter of exemption is on the person who claims the benefit to establish the necessary ingredients. Reproducing the relevant part of the decision in Sadanandan Vs. Kunheen (supra) and holding that no definite conclusion on a crucial issue has been arrived at therein, despite the fact that the Division Bench dealing with Sadanandan Vs. Kunheen has referred to the decision in Kochappan Pillai Vs. Chellappan & Anr. decision in Ebrahim Ismail Kunju Vs. Phasila Beevi, 1991 (1) KLT 861 and after reproducing the relevant part of the judgment in Kochappan Pillai Vs. Chellappan (supra), observed that, when a tenant may press into service the benefit of proviso to Sec. 11(3) of the Act, in order to deny the landlord the fruits of the factum which he had proved to come under the main part of Sec. 11(3), necessarily the person who seeks exemption therefore is cast with a burden of a higher pedestal to establish the necessary ingredients to come within the fold of such exemption, to get out of the clutches of the order of eviction. This aspect of the matter, it is observed, had not been dealt with in any later Division Bench decisions in Sadanandan Vs. Kunheen (supra), and also the two decisions in Krishnankunju Raveendran Vs. Sukumara Pillai, 1999 (3) KLT 373 and Kuncheria Vs. Reyas, ILR 1999 (2) Ker. 562 , In the manner aforesaid, the Division Bench framed the following question contained in paragraph 11 of the reference for determination by a Full Bench of this Court.