Kerala High Court
Varghese Eapen vs Varghese on 9 April, 2001
ORDER S. Sankarasubban, J.
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 coll 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 evidence in this case consists of PWs. 1 to 4 and Exts. A1 to A12 series for the landlord and CPWs. 1 to 4 for the tenant. Ext. X2 is the register produced by the Accommodation Controller. After appreciating the materials tendered by both sides, the Rent Control Court came to the conclusion that the need alleged by the landlord was bonafide. It also held that the tenant is not entitled to the benefit of the Second Proviso to S. 11(3) of the Act. However, the claim of the landlord that he is entitled to eviction on the ground that the tenant has got another accommodation was rejected. The Rent Control Court granted an order of eviction under S. 11(3) of the Act and rejected the claim under S. 11(4)(iii) of the Act. Against the above order, an appeal was filed before the Rent Control Appellate Authority as R.C.A.No. 57 of 1998. The Rent Control Appellate Authority upheld the decision of the Rent Control Court. It found that the requirement was bonafide. It was found that the tenant is not entitled to the benefit of the Proviso. The contention under S. 11(4)(iii) of the Act, which was raised by way of Cross Objection was also rejected. The tenant has come in revision against the order of eviction passed under S. 11(3) of the Act.
4. The main contention raised by the learned counsel for the petitioner is that the court below was not correct in granting an order of eviction under S. 11(3) of the Act. The bonafide need has not been properly proved. So far as the benefit of the Proviso is concerned, it is stated that both the Authorities were not correct in holding that the sone of the landlord depended for his livelihood mainly on the income derived from the business and further contended that the tenant has produced the register from the Accommodation Controller, which shows that no building was available and contended on the basis of the decision reported in Sadanandan v. Kunheen, 1991 (2) KLT 628 and Krishnankunju Raveendra v. Sukumara Pillai, 1999 (3) KLT 373, that the Court ought to have found that there was no alternate building available. So far as the question of bonafide need is concerned, both the Courts have found that the landlord requires the building for the purpose of his son. Even though contention was raised that the landlord's son is having business, he has not been able to prove that. It is now well settled that S. 11(3) of the Act is not a financial dependency and the word "dependent" in S. 11(3) of the Act has acquired a definite meaning and on that basis it cannot be said that the landlord's son is not a dependent. We went through the records in the case and we are satisfied that the findings of the courts below that the landlord requires the building bonafide for his son is correct.
5. 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 s 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. X1. 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 hi. 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 Pillai 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.
6. Both the courts relied on the fact that in the reply notice given by the tenant he has not stated that no alternate accommodation is available. It is further submitted that the tenant did not enquire with the Accommodation Controller or receiving the notice. Ext. A12 is an advertisement, which will show that there are vacant buildings available. This is spoken to by CPW2, son on the petitioner. As already stated, learned counsel for the petitioner relied on the decision in Sadanandan v. Kunheen - 1991 (2) KLT 628. In the above decision, Kalliath, J. speaking for the Bench, held as follows:
"That there is no suitable building in the locality is a negative fact which has to be proved for attracting the proviso. In fact since the proviso works as an exemption the person who desires to get the exemption has to prove the integrants of the proviso and to that extent there cannot be any doubt. But being a negative aspect and that too, the availability of a suitable building in the locality, the nature and quantum of evidence that has to be proved by the tenant may, in appropriate cases, be confined to a positive affirmation by the tenant before the court, that no suitable building is available in the locality not successfully challenged in Cross Examination. Then the burden shifts to the landlord since he can positively prove the fact that buildings/building are/is available."
In the decision Krishnankunju Raveendran v. Sukumara Pillai - 1999 (3) KLT 373, the Division Bench observed as follows:
"It is clear that the above finding was made only on the basis of the so-called admission by the tenant and the evidence let in by CPWs 2 and 3 regarding the non-availability of a building in the locality was not considered by both the courts below. The tenant, when examined as CPW1, had categorically stated that no vacant building were there in the locality suitable for running a teashop. The above version of CPW1 that no suitable buildings were available in the locality for carrying on his teashop business was not seriously challenged even though certain questions were put to him regarding certain vacant rooms. Even though the existence of certain vacant buildings were put to CPW1 it was not put to him that the above buildings were suitable for running a teashop business. In fact, there was no evidence to show that those rooms, even if were vacant, were suitable for conducting the teashop business which the petitioner was conducting in the petition schedule building and were available to the tenant".
7. In chief examination, DW1 says thus:
In cross examination, he says thus:
In re-examination, he says thus:
No other evidence has been adduced by the tenant except examining CPW4. If the building is vacant, the same has to be informed to the Accommodation Controller. But it is common knowledge that this duty is discharged by committing breach and not complying with it. It is true that in Kochappan Pillai v. Chellappan - 1976 KLT 1, it is observed that a tenant can prove that no building is available by examining the Accommodation Controller. But the mere fact that the register of the Accommodation Controller does not show that there was no vacant building does not immediately mean that he tenant's case has to be accepted. If there was evidence to show that in case other building were vacant, it is the duty to the tenant to establish that those buildings are not actually vacant or that those buildings are suitable for the purpose.
8. In this case, Ext. A12(a) shows that there are vacant buildings. Hence, we are of the view that the two decisions cited are not applicable to the facts of this case. This aspect has been discussed by the Appellate Authority. On the death of the father, the counter petitioner took up that business in the Punnaparambil building. Probably, may be when the counter petitioner felt some inconvenience in the Punnaparambil building that he shifted the bakery business to the petition schedule room. He used the Punnaparambil building for the conduct of photostat and STD booth and typewriting. Ext. A9 is the copy of the sale deed alleged to have been executed by Punnaparambil Kurian. Ext. A6 series extract of property tax assessment register would go to show that the building was originally in the occupation of the counter petitioner. Ext. P7 document would show that it is the counter petitioner himself who applied for public telephone booth in the building. Ext. A8 shows the conduct of telephone booth there and the amount of commission given to the counter petitioner in respect of the public telephone booth. Ext. A10 is the photograph and negative showing the Punnaparambil building. The board such as STD, ISD, local calls, photostat, typewriting, etc. as clearly seen in the photograph. In spite of Ext. P9, the lower court held that since the licence stand sin the name of the counter petitioner, he is in occupation of the same. No doubt, the landlord was not able to show the actual income from the photostat business. But in such circumstances, it is the duty of the tenant to show that the income received from the photostat business was less than the income from the bakery business. In the absence of such proof, if cannot be said that the main income is from the business conducted in the plaint schedule building.
9. Thus, on the whole, we are satisfied that both the courts are correct in holding that the landlord is entitled for eviction of the tenant on the ground of S. 11(3) of the Act and tenant is not entitled to the benefit of the Second Proviso. We given time to the tenant to vacate the premises till 31st May, 2001.
10. Civil Revision Petition is dismissed.