MOHAMMED SHERIFF AND Vs. SIVADASAN AND

JUDGEMENT

(1.) THE landlords are in revision and they are aggrieved in that the eviction petition filed by them was dismissed concurrently by the Rent Control Court and the Appellate Authority. The parties will be referred to as landlords and tenants. Landlord tenant relationship between the parties is not disputed. The landlords sought eviction of the respondents tenants on the ground of arrears of rent (Section 11(2)(b), subletting (Section 11(4)(i) and bona fide need for own occupation (Section 11(3) and negligent user of the building (Section 11(4). Statement of objections was filed by the respondents disputing the averments in the RCP constituting various grounds for eviction and after trial the Rent Control Court dismissed the RCP. Sri P.B. Suresh Kumar, learned Counsel for the revision petitioners submitted before us that we need in this revision to be considered seriously only with the ground for eviction sought under Section 11(3) and we therefore are referring to the pleadings raised by the parties in the context of that eviction ground only.

(2.) IT is averred in the RCP that the second petitioner landlord is presently employed in Dubai and that the first petitioner is presently unemployed. The first petitioner was also working in Dubai, but he returned to Kerala in June 1994 and thereafter he is remaining unemployed. The second petitioner needs the petition schedule building for his own occupation for conducting business in Automobile Spare Parts. The first petitioner has got experience in Automobile Spare Parts business. The petitioner was a salesman in Automobile Spare Parts in Dubai for about 15 years. He has the ability to conduct Automobile Spare Parts business in the plaint schedule building. The petitioners have no building of their own in their possession for conducting above business within the limits of Kollam Municipal Town. Even if the first counter petitioners wants to conduct any business, other suitable buildings are available in the locality. It is reliably understood that he is a salesman in the vegetable shop belonging to one Abdul Azeez in Quilon market. His son is also working in Gulf Countries.

(3.) AS already stated, the Rent Control Court on evaluation of the entirety of the evidence which came on record consisting of Exts. A1 to A26, PW -1 to PW -4, B1 to B18, RW -1 and RW -2 and C1 commission report and C2 mahazar negatived all the prayers of the landlords and dismissed the rent control petition completely. The Appellate Authority found reversing the finding in that regard of the Rent Control Court that the petitioners landlords have established the bona fide need of the first petitioner to occupy the premises for doing business, however, confirmed the decision of the Rent Control Court dismissing the RCP under Section 11(3) also holding that the tenant is entitled to the protection of second proviso to Sub -section (3) of Section 11. It is challenging that decision that in this revision under Section 20 the landlords impugn the judgment of the Appellate Authority declining order of eviction on all the grounds invoked. However, at the time of hearing Sri P.B. Suresh Kumar, learned Counsel for the revision petitioners would assail strenuously only the decision of the Rent Control Appellate Authority that the tenant is entitled for the protection of the second proviso to Sub -section (3) of Section 11. The learned Counsel submitted that it is settled law that for claiming benefits of second proviso to Section 11(3) it is the tenant's burden to establish that he satisfies both the ingredients of that proviso. It was brought on record that the tenant has several properties including shops in his name in the locality and that his son is employed abroad. The only reason given by the Appellate Authority in support of its finding that the tenant has established that he is entitled to the benefits of the second proviso to Sub -section (3) of Section 11 is that the availability of the vacant premises was ascertained by the tenant from the Accommodation Controller and that as per register maintained by the Accommodation Controller no vacant buildings are available in the locality. The Appellate Authority however, failed to notice that the evidence given by the Accommodation Controller was to the effect that there is no material available in his office to indicate that the tenant has ascertained the availability of vacant buildings. It was also his evidence that the register available in the Accommodation Controller's Office is only for the period from 1 -4 -1998 and that the Accommodation Controller has not conducted any independent enquiry regarding the availability of the vacant premises in the locality. Mr. Sureshkumar submitted that finding of the Appellate Authority that it is for the landlord to take steps for establishing that vacant premises are available in the locality is erroneous. The landlord actually has in his evidence as PW -1 mentioned numbers of the various vacant premises available in the locality. There is no effective cross examination on such evidence given by the landlord. Particulars of these vacant premises were put to the tenant and also to the Accommodation Controller when they were cross examined. The Accommodation Controller pretended ignorance. The tenant gave evasive answers. Mr. Sureshkumar also submitted that there was no legal evidence to hold that the tenant was depending solely on the income derived from the petition schedule building for his livelihood.