Judgment :- Varghese Kalliath, J. The landlord initiated proceedings under the Kerala Buildings (Lease and Rent Control) Act I' tf->5, hereinafter referred to as the "Act" for eviction of the revision petitioner herein. The landlord raised several grounds. Now we are concerned only with the ground under S.11 (3) of the Act. 2. Counsel for the petitioner presented this case very ably. 3. Respondent herein, the landlord claimed eviction for the bonafide need of the building for his own occupation. The building in question is ached. The tenant is using this building as a motor repairing workshop. There is no dispute as to the fact that the landlord's son is a stage carriage operator and he is operating one bus with route permit. The need alleged is that in order to park the bus the building is needed. To strengthen this case of the landlord it has been brought in evidence that parking of the vehicle on the roadside was prevented by the police on several occasions. 4. The tenant contended that the bonafide need alleged is only a pretext to evict the tenant. He also raised the contention that even if the landlord is in a position to establish his bonafide need for own occupation the tenant is entitled to the protection under the second proviso to section 11 (3) of the Act. 5. The rent control court as well as the appellate authority considered the question of bonafide need at great length. They came to the conclusion that there is sufficient material before the court to hold that the landlord has established very satisfactorily the bonafide need alleged in the petition. As regards this question there cannot be any serious dispute and infact counsel for the revision petitioner did not very seriously challenge the concurrent finding of the lower authorities. We make it clear that the counsel did not very seriously challenge the first aspect of the matter, viz, the bonafide need for own occupation claimed by the landlord. But counsel very strenuously argued that the tenant is entitled to protection under the second proviso. We make it clear that the counsel did not very seriously challenge the first aspect of the matter, viz, the bonafide need for own occupation claimed by the landlord. But counsel very strenuously argued that the tenant is entitled to protection under the second proviso. The second proviso to S.11(3) of the Act reads thus: "11(3) 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 proviso comes into operation when the landlord has established the fact that the landlord needs the building for his own occupation or the occupation of a member of his family dependant on him. When once the landlord satisfies the bonafide need he gets an entitlement for a direction from the rent control court directing the tenant to put the landlord in possession of the building but this right is again hedged by the proviso under S.11(3). Of course we are now concerned only with the second proviso. The second proviso takes in two ingredients. The one is a positive ingredient and the other one is expressed in the negative from. The first ingredient is that a tenant who has incurred the liability under S.11 (3) of the Act to surrender the building can establish that he is not liable to surrender the building if he is depending for his livelihood mainly on the income deri0.1 from any trade or business carried on in the building in question. The second limb to be proved by the tenant to attract the beneficial proviso is the fact that there is no other suitable building available in the locality for the tenant to carry on the business or trade he was carrying on in the disputed building. We understand the proviso in two distinct parts, one a fact with a positive contend to be proved by the tenant and the other negative fact to be established. In 1976 KLT 1 (Kochappan Pillai v. Chellappan) it was held that both the above aspects have to be proved by the tenant to attract the protection of the proviso. We understand the proviso in two distinct parts, one a fact with a positive contend to be proved by the tenant and the other negative fact to be established. In 1976 KLT 1 (Kochappan Pillai v. Chellappan) it was held that both the above aspects have to be proved by the tenant to attract the protection of the proviso. Counsel for the petitioner submitted before us that the ratio of the decision reported in 1976 KLT 1 has been doubted by one of us (L. Manoharan, J.) sitting in a Division Bench in 1991 (1) KLT 861 (Ebrahim Ismail Kunju v. Phasila beevi ). The submission that one of us has doubted the ratio of the decision in 1976 KLT 1 may not be precisely a very correct submission since the whole of the ratio of the decision has never been doubted by his lordship Justice L. Manoharan, but the doubt is in a very small area. That is clear from what has been stated in paragraph 3 of the judgment. The crucial passage is "We may also refer to the discussion on furnishing negative evidence as yet another area which appears to us to be unsound in law. So too is the view expressed there on the question of Pleadings". 6. We are not unaware of a recent Division Bench decision in Narayani & Another v. District Judge (1991 (1) KLT 646) which followed 1976 KLT 1 and overruled Rangaier Sons (P) Ltd. v. Rukhiyabi (1982 KLT 658). In 1976 KLT 1 a Division Bench of this Court held that: "The second proviso which is an excepting one carves and reserves out of the main section cases of tenants who carry on business in the building and who have no other suitable building available in the locality to carry on that business. But for the proviso the enacting part of the section would have included in it the subject-matter of the proviso also. An exception has to be taken most strongly against the party for whose benefit it was made and it is for him who sets it up to establish it. It is he who would fail if the allegation regarding it is struck out of the pleading. An exception has to be taken most strongly against the party for whose benefit it was made and it is for him who sets it up to establish it. It is he who would fail if the allegation regarding it is struck out of the pleading. On the whole, then on a review of principles involved, it is clear that the burden of providing all the facts in the second proviso to S.11(3) of the Act is on the tenant". 7. That there is no suitable building in the locality is a negative fact which has to be proved for attracting the proviso. The doubt expressed on this aspect of the matter is only in respect of the manner or the degree of proof required to be established by the tenant in which this negative aspect has to be proved. In fact since the proviso works as an exemption the person who desires to get the exemption has to prove the inte-grants 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. The doubt expressed by one of us Manoharan, J. in 1991 (1) KLT 861 is in this region of shifting of onus of proof. Anyway in this case this question may not- be of much importance and we leave the matter there. 8. There cannot be any doubt that in order to attract the proviso both the elements in the proviso have to be established. In this case both the courts have found that the first element i, vi/. the tenant is depending for his livelihood mainly on the income derived from the business carried on in the building has not been established. Of course the tenant said that his main source of income is the income he is getting from the business he is carrying on in the disputed building. The landlord proved that the tenant has got landed properties. Of course the tenant said that his main source of income is the income he is getting from the business he is carrying on in the disputed building. The landlord proved that the tenant has got landed properties. He has got an extent of 23 cents of property in the town and another silent of 1 acre 8 cents and that his income from these properties is Rs. 3,000 to 4,000/-riiis evidence has been scanned and appreciated by both the authorities. It has to be noted hat when the proviso uses the language "The main income" it is incumbent on the tenant say what is the income he is deriving from the trade he is conducting in the building n question, particularly in the context when there is evidence in the case that he has got another source of income. In this case on this aspect of the matter no evidence has been adduced by the tenant. The trial court has taken it for granted on these materials that the tenant is not very serious to prove the income in order to satisfy the first ingredient of the proviso. The appellate authority has re-assessed the evidence on this aspect of the matter very elaborately and critically and came to the conclusion that the tenant has not discharged his responsibility to satisfy the court that he is depending for his livelihood mainly on the income derived from the business he is carrying on in the building in question. 9. The question that has to be considered now is whether we can re-appreciate the evidence and come to a different conclusion exercising our power under S.20 of the Act. The power under S.20 is a limited power. The power is given to enable the court to satisfy itself as to the legality, regularity or propriety of the order challenged in revision. Certainly from the language used in S.20 of the Act the power is a little wider than the power under S.115 C.P.C. It does not totally for close a re-assessment of the evidence. A re-appraisal of the evidence is possible for a limited purpose to ascertain the legality, regularity or propriety of the order impugned. Certainly from the language used in S.20 of the Act the power is a little wider than the power under S.115 C.P.C. It does not totally for close a re-assessment of the evidence. A re-appraisal of the evidence is possible for a limited purpose to ascertain the legality, regularity or propriety of the order impugned. This court had occasion to say that the power under S.20 of the Act can be exercised only if the conclusions arrived at by the appellate authority can be characterised as "wholly unreasonable or perverse" that no tribunal could arrive at such a conclusion on the evidence in record. Of course if the finding is recorded on surmises or conjectures or on materials not before the court or on baseless assumptions certainly this court will exercise its power to rectify that finding exercising its-power under S.20 of the Act. In this case it is not at all possible for us to say that the authorities below came to a conclusion on surmises or on conjectures. It is clear that the findings asre recorded because the tenant has not produced legal evidence which he could have produced, before the court. At any rate it is impossible for us to say that the findings recorded by the authorities below are so wholly unreasonable that no reasonable tribunal could come to such a finding. We are of opinion that the finding on the question that the tenant is not depending mainly on the income derived from the trade (business) carried on in the building in question is perfectly legal and correct on the facts and evidence unfolded in the case. We have examined the evidence also. 9. In this situation we see no merit in this revision and it is only to be dismissed. We do so. 10. Counsel for the petitioner submitted that it is very difficult for the revision petitioner to obtain an alternate building to accommodate his motor workshop and that he has to be given a little time to surrender the building. Taking this aspect into consideration we allow three months time to the petitioner to surrender the building to the landlord on condition that he should file an undertaking in the form of an affidavit that he will surrender the building within the said time and he will pay the entire arrears of rent up-to-date. Taking this aspect into consideration we allow three months time to the petitioner to surrender the building to the landlord on condition that he should file an undertaking in the form of an affidavit that he will surrender the building within the said time and he will pay the entire arrears of rent up-to-date. The undertaking has to be filed within six weeks from today. If the undertaking is not filed within the stipulated time the order can be executed.