Kerala High Court · 2012

RCR No. 276 /20122contended that the need alleged is not bona fide and it is only aruse for eviction. She further contended that the landlady didnot obtain any permission from the Municipality for constructingthe building as alleged. Her further contention was that theproperty owned by the respondent is sufficient to construct abuilding as shown in the plan produced by her. The optical shopset up in the tenanted premises is the sole source of livelihood ofthe petitioner and no other buildings are available in the localityto shift her business. 4. It was further contended that the learned Rent ControlCourt after raising proper points for trial permitted both sides toadduce evidence and on the basis of the evidence consisting ofthe oral testimony of PW1 to PW3, RW1 to RW3 as well asExts.A1 to A5, Ext.B1 to B1(c), Ext.X1 and X2 and Ext.C1commission report, ordered eviction under Section 11 (3) butrepelled the prayer for eviction under Section 11 (4) (iv). 5. The revision petitioner took the matter in appeal beforethe Rent Control Appellate Authority, but without success. Thusshe has come up in revision. 6. We have heard the learned counsel for the revision RCR No. 276 /20123petitioner and we have perused the impugned judgment of theAppellate Authority as well as the the order of the Rent ControlCourt. 7. The specific case of the landlady was that she need thetenanted premises for constructing a new building afterdemolishing the existing shop rooms for the purpose ofconducting a computer centre. According to her, she has noother sufficient building or property where such a buildingcould be constructed. The case of the first respondent wassubstantiated through the oral evidence of PWs 1 and 2. Shehas also produced Ext.A3 Licence and Ext.A4 plan. There isevidence to show that the property lying just behind the shoppremises is the property belonging to the husband of thelandlady and the entire property is lying as a single contiguousplot. Because of this reason, both the courts below repelled thecontention of the revision petitioner that the property where thepetition schedule building is located is not suitable for theconstruction of a building as alleged by the landlady. Both thecourts below came to the conclusion that the construction of abuilding as per Ext.A3 licence and Ext.A4 plan can be carried RCR No. 276 /20124out only after demolishing the room in the possession of therevision petitioner as well as the room in the possession of the2nd respondent. There is evidence to show that the landlady isjobless and she has the capacity to start proposed business.Considering the evidence placed on record, both the courts belowcame to the conclusion that the need alleged is bona fide and weare not prepared to hold otherwise. 8. Coming to the first proviso to sub section (3) of Section11, the landlady has exhausted her initial burden by statingthat no other suitable building is available in her possession toconstruct a building for the proposed business.. Neither therevision petitioner nor the 2nd respondent had any case that thefirst respondent has any other place or building for constructinga new building. So both the courts below found that the claim isnot liable to be rejected under the first proviso to Section 11 (3)of the Act. 9. Coming to the second proviso, it is settled after thedecisions in Francis v. Sreedevi Varassier 2008 SAR (Civil)894) and Kunhamma v. Akkali Purushothaman (2001 (3)KLT 99 (SC)), that the burden is on the tenant to prove that RCR No. 276 /20125he/she is entitled to the protection of both limbs of the secondproviso to Section 11 (3). Though the revision petitionercontended that her sole source of livelihood is optical businessset up in the tenanted premises, she could not adduce anycogent evidence to substantiate the same. Regarding theavailability of alternative accommodation, both the courts foundthat the evidence of RW1 and Ext.X2 which is the buildingVacancy Register cannot be acted upon to hold that there are noother suitable buildings are available in the locality as contendedby the revision petitioner as RW1 has stated that X2 is blank asno reporting has been made regarding the vacantaccommodation available in the locality. We are of the view thatboth the Rent Control Court and the Appellate Authority haveappreciated the evidence in the correct perspective and havearrived at the correct conclusion. On going through theimpugned judgment, we find that the same does not call for aninterference under Section 2o as the same does not suffer fromillegality, irregularity or impropriety. .10. In the result the revision petition fails and the sameis accordingly dismissed. RCR No. 276 /2012611. When our decision was made known to the learnedcounsel for the revision petitioner, he requested for one and halfyears time to surrender the vacant possession of the tenantedbuilding. We are of the view that we will not be justified ingranting so much of time without hearing therespondent/landlady. Hence, issue notice to the 1strespondent/landlady by speed post for hearing her in thequestion of time if any to be granted to the revision petitionerfor giving vacant possession of the tenanted premises. The execution proceedings, if any, shall be kept in abeyancefor a period of two months. PIUS C.KURIAKOSE,JUDGEA.V.RAMAKRISHNA PILLAI,JUDGE. dpk RCR No. 276 /20127