SATHEESAN Vs. ABDUL RAHIMAN
HIGH COURT OF KERALA
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(1.) Tenants are the revision petitioners. R.C.P.No.176 of 1998 was filed by respondents 1 to 4 herein for eviction of the tenants under S.11(2)(b) and S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Rent Control Court allowed eviction under S.11(3) of the Act. Referring to the first limb of the second proviso to S.11(3), it was held that tenant is eking his livelihood from the income derived from the business conducted in the tenanted premises. Tenant was however found not entitled to the benefit of the second limb of the second proviso to S.11(3). Matter was taken up in appeal by the tenant by filing R.C.A.No. 104 of 2001. Appellate Authority confirmed the finding of the Rent Control Court and dismissed the appeal. Tenant took up the matter before this court in C.R.P.No.920 of 2002. A Division Bench of this court while disposing of the revision petition, held as follows:
We see no ground to interfere with the finding as to bona fide and with regard to application of first proviso as we have held that the building said to have been in possession of the landlords is not suitable for the intended business. Therefore, finding under the first proviso to S. 11(3) requires no interference in a revisional proceeding.
The Bench however remanded the matter back to the Appellate Authority for reconsideration of the finding on the second proviso to S.11(3). Appellate Authority has passed the impugned order dated 30.05.2003 and held that the tenants have failed to discharge the burden under the second proviso to S.11(3) of the Act and consequently order of the Rent Control Court granting eviction was upheld under S.11(3) of the Act. Aggrieved by the same tenants have filed this revision petition.
(2.) Sri. K. Ramakumar, counsel appearing for the revision petitioners, contended that since the Rent Control Court as well as the Appellate Authority found that tenants are eking livelihood from the income derived from the business conducted in the tenanted premises, this court in revisional jurisdiction is not justified in upsetting that finding. Counsel also submitted that there was no challenge as such against the said finding by the landlord. Counsel submitted that in effect in the remand order this court only directed the Appellate Authority to examine the finding on the second limb of the second proviso to S.11(3). We find it difficult to accept the contention of the counsel. In the remand order, Division Bench of this court, after discussing both the limbs of the second proviso to S.11(3), felt that the Appellate Authority has to examine both the limbs of the second proviso to S. 11(3). Petitioners are bound by the remand order. Therefore, Appellate Authority is justified in examining both the limbs of the second proviso to S.11(3). Further the finding that the building is bona fide required by the landlord has also become final by the order of the Division Bench of this court in CRP No. 920 of 2002, and that the question directed to be considered by the Appellate Authority was whether the tenants are entitled to the benefit of both the limbs of the second proviso to S.11(3) of the Act. We are therefore concerned only with the question whether tenants have discharged the burden under the second proviso to S.11(3).
(3.) With regard to the said question, we may refer to essential facts. We will refer to the parties according to their status in the rent control petition. Petition schedule building bearing C.C.Nos.40/6925 and 40/6926 was rented out to the tenants on a monthly rent of Rs.900/-. The building is situated on the side of M.G. Road, Ernakulam where tenants are conducting hotel by name Padma Cafe. The building is bona fide required by petitioners 2, 3 and 4 who do not have any business or employment of their own and decided to start a business in stationery and plastic wares and for their own occupation. First petitioner is doing business in stationery and has the financial capacity to invest large amounts to conduct business in the scheduled building. Tenants resisted the petition contending that there is no bona fides in the plea. It was stated that the landlord is having other building in the locality. The attempt is only a ruse to evict the tenants. We have already indicated, the finding that the building is bona fide required by the landlord has become final. So also the finding that the landlord has no other suitable building of his own to conduct business. It is well settled by catena of decisions of this court that the burden is on the tenant to prove both the ingredients of the second proviso to S.11(3). We may refer to the second proviso for easy reference.
Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.
This Court in Thomas v. Joseph ( 1986 KLT 392 ) and Muhammed v. Pathukutty Umma ( 1992 (2) KLT 736 ) has held that notwithstanding the proof of bona fide need landlord are not entitled to evict the tenant unless the ingredients of the second proviso are found against the tenant. Tenant has to prove that he has no other source of income and that he is solely depending on the income derived from the business carried on in the building for his livelihood. It is not enough that the tenant proves that he is depending upon the income derived from the business conducted in the building, he has to further prove that there is no other suitable building available in the locality for him to carry on such trade or business.;
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