ORDER S. Krishnan Unni, J. 1. The tenant has come up in revision challenging the concurrent orders ofeviction passed by the Rent Controller and the Appellate Authority underS.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 2. The brief facts necessary for the purpose of revision may be stated asfollows. The petition schedule property is a shop building in ChanganacheryMunicipality, bearing No. 25/8. It was owned by one Pathumma Beevi wholeased it to the tenant on a monthly rent of Rs. 50 on 8th June 1978 under Ext.A3 for a period of one year. After the expiry of the said period, the rent wasenhanced to Rs. 150. On 25th February 1983 Pathumma Beevi assigned theproperty to 2nd petitioner as guardian of 1st petitioner who was a minor at thattime, under Ext. Al. First petitioner is the son of 2nd petitioner. After theassignment the tenant was paying rent to 2nd petitioner and the rent fell intoarrears after March, 1991. The 1st petitioner attained majority on 7th April1993. On 23rd August 1993 he issued Ext. A4 notice through his advocateclaiming possession of the property to conduct a business of his own in Paints.The tenant sent Ext. B-3 reply alleging that it is only a ruse to evict him, that ifhe is evicted his main source of income will be lost and that there is no otheraccommodation available to shift his business. The petition was filed claimingeviction under S.11 (2) (b) arrears of rent, S.11(3) bona fide need andS.11(4)(ii) stating that the tenant has used the building in such a manner as todestroy or reduce its value or utility permanently. 3. Exts. A1 to A9, B1 to B3, C1 and C1(a) were marked. PWs 1 to 5 andC.P.Ws. 1 to 5 were examined,The Rent Controller on appreciation of evidence found that the tenant has keptthe rent in arrears and that the landlord has proved his bona fide need to getpossession of the property, and accordingly passed an order for eviction. 4. The tenant challenged the order of the Rent Controller in R.C.A. No. 43 of1995 and the landlord filed a Gross Objection challenging the dismissal of thepetition under S.11 (4) (ii) of the Act. The Rent Control Appellate Authorityconfirmed the findings of the Rent Controller and dismissed the appeal and theGross Objection. Tenant has filed this revision. 5. 4. The tenant challenged the order of the Rent Controller in R.C.A. No. 43 of1995 and the landlord filed a Gross Objection challenging the dismissal of thepetition under S.11 (4) (ii) of the Act. The Rent Control Appellate Authorityconfirmed the findings of the Rent Controller and dismissed the appeal and theGross Objection. Tenant has filed this revision. 5. The tenant has subsequently deposited the arrears of rent and only theeviction order under S.11(3) of the Act survives for consideration in theseproceedings. To put the facts briefly as revealed from the evidence, thepetition schedule building was acquired by the 1st petitioner in 1983 under Ext.Al when he was a minor for which his mother 2nd petitioner acted as guardian.He has studied only upto Pre degree. It is not disputed that the first petitionerwas not very successful in his studies and two attempts made by him in thePre degree examination met with failure. The 1st petitioner belongs to abusiness community. His father, father's brother and his own brothers are welloff. His paternal uncle is employed in the Gulf countries. One of his elderbrothers is employed in a bank and another brother is conducting somefinance business. He is staying with his father whois conducting a factory. The bona fide need alleged by him is that he wanted tostart a business in Paints and his paternal uncle has assured him financialsupport. The 1st petitioner was aged about 19 years at the time of hisexamination. He attained majority only on 7th April 1993, claimed possessionof the property under Ext. A4 in August 1993 and filed the petition on 3rdMarch 1994. Both authorities below have considered the evidence and foundthat the bona fide need advanced by the 1st petitioner is real, reasonable andacceptable.He has gone to the box and examined himself as PW 1 and gave evidence insupport of his case. He has produced Exts. A6 and A7 letters received by himfrom two Companies, offering to help him in the business. 6. One of the grounds of attack to the claim advanced by the landlord wasthat it is only a pretext to evict the tenant, that the 1st petitioner belongs to avery affluent family and is dependant on his father, that he can participate inhis father's business and factory management and that the claim put forwardby him is not bona fide. 6. One of the grounds of attack to the claim advanced by the landlord wasthat it is only a pretext to evict the tenant, that the 1st petitioner belongs to avery affluent family and is dependant on his father, that he can participate inhis father's business and factory management and that the claim put forwardby him is not bona fide. The cross examination of PW 2 was directed toestablish that he had no previous business experience and therefore it isunlikely that he intends to start a business. No doubt, a major part of the crossexamination was misdirected for this purpose and the authorities below rightlydid not fall for this argument, steered clear of it and found that the need of the1st petitioner was bona fide. 7. Another ground on which the claim was challenged was that even if the 1stpetitioner wanted to start a business, he had other rooms available for thepurpose. Though an attempt was made to develop this case, it remained at thestage of suggestions put to PW 1 in cross examination and the tenant wasunable to prove that the landlord owned any another shop-building. Theauthorities below have discussed this aspect in detail and we do not find anyreason to differ from the conclusion arrived at by them. Even before us, thelearned counsel for the revision petitioner could not successfully challenge thefindings as to the reality of the bona fide need advanced by the landlord. He isa young; man who belonged to an affluent family by normal Indian standards.He was unsuccessful in his academic career. His family consists ofbusinessmen and if he thought that he can make a mark in life by doing hisown business in the circumstances narrated, the authorities could not havecome to a conclusion that his need is not bona fide, without risking logic andcommonsense. Accordingly we find that the conclusion of the authoritiesbelow that the landlord has bona fide need to get possession of the buildingdoes not warrant any interference and does not suffer from any of the vicesmentioned in S.20 of the Act. 8. Now we come to the main crucial point debated in this case, namely theeligibility of the tenant for protection of the second proviso to S.11(3) of theAct. As one reads the above provision, normal rules of statutory interpretationcannot leave anyone in doubt that the burden to prove the ingredientsmentioned in the said proviso is on the tenant. 8. Now we come to the main crucial point debated in this case, namely theeligibility of the tenant for protection of the second proviso to S.11(3) of theAct. As one reads the above provision, normal rules of statutory interpretationcannot leave anyone in doubt that the burden to prove the ingredientsmentioned in the said proviso is on the tenant. The provision is to the effectthat even if the landlord has established his bona fide need, the Rent ControlCourt shall not pass an order for eviction of the tenant (1) if the tenant isdepending for his livelihood mainly on the income derived from the businesscarried on in the premises; and (2) if there is no other suitable buildingavailable in the locality for him to shift the business. It is also crystal clear thatboth requirements should be satisfied and it is unnecessary for us to citeauthorities on that aspect because it is too well established. Now coming tothe brass took the authorities below have found that the revision petitionertenant has failed to establish that the business carried on in this premises ishis main stay of his livelihood. The tenant is aged 85 years, sick and (if we areto believe the evidence of his son) affected with paralysis, undergoingprolonged Ayurvedic treatment. His eldest son is employed in a bank as anofficer and another son is doing some business in finance. In the premises heis conducting sale of footwear. The admitted evidence is that he has someimmovable properties also. The landlord's case is that the tenant is onlyoccasionally opening the shop and his business has almost sunk. Both sideshave tried to prove their case by adducing oral evidence of some neighbours.But the Appellate Authority has pointed out that the tenant has failed toproduce his accounts to show the profits from the business. CPW 1 son of thetenant admitted that they have bill books and account books, and used tofurnish sales tax returns. None of those documents were produced and theAppellate Authority has pointed out that production of those accounts wouldhave proved his actual income. According to the tenant the sales turnover isRs. 500 per day. In the course of cross examination CPW 1 admitted that theturnover would be Rs. 400 to Rs. 600 a day. 9. A Commissioner was deputed to inspect the property after the evidencewas closed and his report is marked as Ext. C1. According to the tenant the sales turnover isRs. 500 per day. In the course of cross examination CPW 1 admitted that theturnover would be Rs. 400 to Rs. 600 a day. 9. A Commissioner was deputed to inspect the property after the evidencewas closed and his report is marked as Ext. C1. He was examined as CPW 5.His report and evidence would show that much business activity was notcarried on in the shop building. Though the Commissioner remained there forquite sometime, he reported that there was not a single customer who visitedthe shop. He also stated that he found the room very dusty, indicating that itwas not opened and cleaned. He also found many empty boxes. He appearsto have made enquiries with the neighbouring establishments and got animpression that much business is not carried on in this shop. The RentController placed strong reliance on the evidence of the Commissioner whichis very seriously criticised by learned counsel for revision petitioner. But therevision petitioner has no explanation why he failed to produce the accountsrelating to his business which might have proved the volume of business aswell as the turnover, profit derived and the maintenance expenses. He had notproduced the best evidence available with him to prove that the businesscarried on in the premises is his main stay. As pointed out by the apex court,omission of a party to produce best evidence available and clinging on thetheory of burden of proof should not be permitted and any party who behavesin such a manner must suffer adverse inferences. Therefore, the attempt ofcounsel for the revision petitioner to build up a case by relying on so-calledadmission in the oral evidence cannot be entertained because his client hasomitted to produce the best evidence available with him and he has notfurnished any explanation for that omission. In these circumstances, we areinclined to hold that the tenant has failed to establish that the business carriedon in the premises is the main source of his livelihood. 10. The next point for decision is availability of alternate accommodation forthe tenant to shift his business. We have already drawn attention to thesecond proviso to S.11(3) of the Act under which the tenant has to prove thenon availability of suitable accommodation to shift his business. He has statedin the counter statement that in the very same shop building there are roomslying vacant belonging to the relatives of the landlord. We have already drawn attention to thesecond proviso to S.11(3) of the Act under which the tenant has to prove thenon availability of suitable accommodation to shift his business. He has statedin the counter statement that in the very same shop building there are roomslying vacant belonging to the relatives of the landlord. He has stated so toprove that the landlord has alternate accommodation in his possession to startbusiness. Nevertheless, it establishes the fact that in the same building thereare vacant rooms. Similarly, CPW 2 has given evidence that opposite to thisshop room, there is another shop room lying vacant in which one Kavitha GoldCovering was conducted. Similarly, another shop in which one Silpi Jewellerywas conducted is also lying vacant. He would further say that the tenant didnot ask him to enquire whether any other rooms are available. Referring toshop rooms 5, 10 and 11 in the same building, CPW 1 has stated as follows: (Malayalam) Therefore, the evidence of CPW 1 establishes that the tenant has not madeany serious attempt to enquire whether any other rooms are available in thelocality to shift his business. The actual tenant has not entered the box. Theneighbour who was examined to prove his case and who is conductingbusiness in the next shop room admitted that opposite to the shop room and inthe very same building rooms are lying vacant. The Commissioner also has inhis report mentioned about the rooms found vacant in the locality. It is on thebasis of this evidence the authorities below have come to the conclusion thatalternate accommodation is available to the tenant to shift his business.Learned counsel for the revision petitioner submitted that higher rent would bedemanded for these rooms and it will not be possible for his client to shift hisbusiness by paying higher rent. No doubt, the court has to consider whetheralternate accommodation available is suitable for the business and within thereach of the tenant financially. But much attention does not appear to havebeen paid to this aspect of the case, by the tenant. 11. The tenant has examined CPW 4, the Tahsildar of Changanachery Talukwho said that his office is maintaining a register, showing the details of vacantaccommodation. Though he has produced a register there were no entries init. He said that normally no-one is reporting the vacancy and there will beentries only if some persons reported vacancy. 11. The tenant has examined CPW 4, the Tahsildar of Changanachery Talukwho said that his office is maintaining a register, showing the details of vacantaccommodation. Though he has produced a register there were no entries init. He said that normally no-one is reporting the vacancy and there will beentries only if some persons reported vacancy. However, he is not prepared tosay that there will not be any vacant shop room, on the basis of the entriesalone. A strong plea was made out by the revision petitioner, in view of theevidence tendered by CPW 4 Accommodation Controller, that the burden toprove availability of shop rooms to accommodate the revision petitioner tenantis on the landlord. Reliance is placed on the decision of this Court reported inKochappan Pillai v. Chellappan, 1976 KLT 1 wherein a Division Bench hadoccasion to observe that availability or non availability of accommodation canbe proved by examination of the Accommodation Controller or such othereffective means. The Division Bench found that the burden to prove theingredients of the second proviso to S.11(3) is on the tenant and wasmentioning that Accommodation Controller can be examined to establish thenon availability, as illustrative instance. It will be a travesty to hold that thetenant's burden is discharged by examining the Accommodation Controller alone. 12. Another Division Bench in Sadanandan v. Kunheen 1981 (2) KLT 628 hasobserved that both elements in the second proviso to S.11(3) should beproved. While referring to the aspect of non availability of accommodation, itobserved as follows: "But being a negative aspect and that too, the availability of a suitable buildingin the locality, the nature and quantum of evidence that has to be proved bythe tenant may, in appropriate cases, be confined to a positive affirmation bythe tenant before the court, that no suitable building is available in the localitynot successfully challenged in cross examination. Then the burden shifts tothe landlord since he can positively prove the fact that buildings/building are/isavailable." Strong reliance is placed on the above observations by counsel for revisionpetitioner to argue that his client has discharged his onus by examining theAccommodation Controller and it is for the landlord to establish the availabilityof suitable accommodation. We have come across very many cases wheresuch an interpretation has been place on the burden of the tenant under thesecond proviso to S.11 (3) of the Act and we feel that there is a confusion onthis aspect which requires to be cleared. We have come across very many cases wheresuch an interpretation has been place on the burden of the tenant under thesecond proviso to S.11 (3) of the Act and we feel that there is a confusion onthis aspect which requires to be cleared. 13. S.101 to 104 of the Indian Evidence Act deal with the burden of proof.S.101 of the Act says that when a person is bound to prove the existence ofany fact, it is said that the burden of proof lies on that person. S.102 lays downthat the burden of proof in a suit or proceeding lies on that person who wouldfail if noevidence at all were given on either side. S.103 of the Act says that the burdenof proof as to any particular fact lies on that person who wishes the Court tobelieve in its existence, unless it is provided by any law that the proof of thatfact shall lie on any particular person. 14. In Raghavamma v. Chenchammc AIR 1964 SC 136 the apex court statedthe distinction between 'burden of proof and 'onus of proof. At page 143 (para12) it is observed as follows: "There is an essential distinction between burden of proof and onus of proof;burden of proof lies upon the person who has to prove a fact and it nevershifts, but the onus of proof shifts." 15. In this case the burden to prove the ingredients of the second proviso toS.11(3) of the Act is undoubtedly on the tenant and he has to discharge thatburden. But while attempting to do so, the onus may shift from one person toanother. For eg. if certain facts are proved by a party, the onus may shift to theopposite party to prove certain other facts to dislodge the probative value ofthe evidence adduced by the former. Thus, onus to prove may shift from oneparty to another in the course of evidence and at the close of the evidence thecourt has to see whether the party on whom the burden lies has dischargedthe same. After the entire evidence in the case is adduced, the question is oneof appreciation of evidence. Thus, onus to prove may shift from oneparty to another in the course of evidence and at the close of the evidence thecourt has to see whether the party on whom the burden lies has dischargedthe same. After the entire evidence in the case is adduced, the question is oneof appreciation of evidence. In Harmes v. Hinkson AIR 1946 P.C. 156 it isobserved under what conditions onus of proof will determine the matter incontroversy: "The strict meaning of the term onus probandi is this, that if no evidence isgiven by the party on whom the burden is cast, the issue must be foundagainst him. Onus as a determining factor of the whole case can only arise ifthe tribunal finds the evidence pro and con so evenly balanced that it cancome to no conclusion. Then the onus will determine the matter. But if thetribunal, after hearing and weighing the evidence, comes to a determinateconclusion, the onus has nothing to do with it, and need not be considered." In Devadattam v. Union of India AIR 1964 S.C. 880 the apex court observed thus: "The question of onus probandi is certainly important in the early stages of acase. It may also assume importance where no evidence at all is led on thequestion in dispute by either side. In such a contingency the party on whomthe onus lies to prove a certain fact must fail. Where however evidence; hasbeen led by the contesting parties on the question in issue, abstractconsiderations of onus are out of place and truth or otherwise of the case mustalways be adjudged on the evidence led by the parties." A similar view was expressed by the Supreme Court in Narayan v. Gopal AIR 1960 SC 100 when it observed as follows: "The expression 'burden of proof really means two different things. It meanssometimes that a party is required to prove an allegation before Judgment canbe given in its favour; it also means that on a contested issue one of the twocontending parties has to introduce evidence. The burden of proof is ofimportance only where by reason of not discharging the burden which was putupon it, a party must eventually fail. It meanssometimes that a party is required to prove an allegation before Judgment canbe given in its favour; it also means that on a contested issue one of the twocontending parties has to introduce evidence. The burden of proof is ofimportance only where by reason of not discharging the burden which was putupon it, a party must eventually fail. Where, however, parties have joined issueand have led evidence and the conflicting evidence can be weighed todetermine which way the issue can be decided, the abstract question ofburden of proof becomes academic." Therefore, the burden to prove the ingredients required by the second provisoto S.11(3) of the Act is always on the tenant and does not shift. But in certaincases that burden may . be discharged by examining the AccommodationController or by an affirmation by the tenant that there is no other buildingavailable, as has been pointed out in 1976 KLT 1 and 1991 (2) KLT 628 Butthe above decisions do not lay down any absolute rule on this aspect and theirLordships were only referring to such a situation illustratively. The questionwhether the tenant has in a particular case discharged the burden pertains tothe realm of evidence and has to be decided after appreciation of evidence. 16. We would also like to clear in this connection the misunderstanding thatwhat is sought to be proved by the tenant is absence of a fact, viz. nonavailability of alternate accommodation. With due respect, we would like toobserve that it is not absence of fact or a negative fact. The definition of theword 'fact' is contained in S.3 of the Evidence Act. 'Fact' means anything, stateof things, or relation of things, capable of being perceived by the senses. Thenon availability of alternate accommodation refers to a state of things andtherefore is a positive fact coming within the definition of the word 'fact'. Thatbuildings are not available in the locality is a positive fact and not a negation ofanything in particular. A fact may be described either in a positive language orin a negative language. The circumstance that a fact is described or defined ina negative language is not an indication that it refers to absence of certainthings. Tenant can establish the non availability of alternate accommodationby examining persons who own buildings in the locality or persons who aretrading in the locality or persons who are most likely to know about availabilityof accommodation. The circumstance that a fact is described or defined ina negative language is not an indication that it refers to absence of certainthings. Tenant can establish the non availability of alternate accommodationby examining persons who own buildings in the locality or persons who aretrading in the locality or persons who are most likely to know about availabilityof accommodation. Such proof is always capable of being given. As weobserved earlier, in Kochappan Pillai's case 1976 KLT 1 this Court referred toexamination of Accommodation Controller as one of the methods of provingnon availability of accommodation. It was only illustrative and not exhaustive incharacter. Similarly the observation in Sadanandan's case 1991 (2) KLT 628 that in certain cases it may be sufficient for the tenant to merely affirm andthereafter the burden shifts to the landlord is obiter dicta; that has to beunderstood with reference to the facts of that particular case. As pointed outby the Supreme Court, the burden to prove the two ingredients of the secondproviso is on the tenant. 17. In the present case, as in very many cases, the AccommodationController produced the register which contained no entries. The evidence ofthe Accommodation Controller would be relevant only if he is able to establishthat normally vacancies of accommodation are reported and entered in theregister regularly. If that law has become defunct by practice, there is nosanctity or relevance in the evidence of the Accommodation Controller to theeffect that no entries are there in the register maintained for the purpose. Insuch an event, the burden will still be on the tenant to prove non availability ofaccommodation. This position found acceptance in the Division Bench rulingreported in Chacko v. Lakshmiamma 1997 (1) KLT 12 at 16 wherein it wasobserved: "If buildings were available at the time when the landlady requested for ownoccupation and the tenant neglected to enquire regarding the availability of thebuilding, then he cannot contend that those buildings which were available hasbeen rented out during the course of the litigation. If that be so, in every casethe tenant will be able to stultify a petition filed by the landlord under S.11(3) ofthe Act by protracting the litigation. This is not the law. If that be so, in every casethe tenant will be able to stultify a petition filed by the landlord under S.11(3) ofthe Act by protracting the litigation. This is not the law. If the tenant is not ableto prove the claim under the second proviso to S.11(3) of the Act that noalternate buildings were available at the time when the application for evictionwas made, he cannot later contend that no buildings were available when thefinal order in the revision was passed." Learned counsel for the revision petitioner argued that the landlord has onlygiven evidence regarding availability of accommodation at the time when hewas examined and not at the time of filing of the petition. No doubt, there is nospecific averment in the petition that such and such buildings are available forthe tenant to shift. But we are of the view that this is immaterial because it isnot the duty of the landlord to mention it in, the petition anticipating the case ofthe tenant that buildings are not available in the locality for the tenant to shift.On the other hand, it is the duty of the tenant to say so in his objections andthereafter it is a matter for evidence. In this case, the evidence adduced byboth sides. We have only to appreciate the same and not to cling on the theoryof burden of proof or shifting of onus. As to the burden of proof, the tenant hassuppressed the most valuable evidence in his possession without anyexplanation and he must suffer an adverse inference that if produced thoseaccounts will not prove that profits from the business is the main source of hislivelihood. Similarly, CPW 1 has admitted that he has not enquired aboutavailability of accommodation and CPW 2 has stated that rooms wereavailable in the neighbourhood. In these circumstances, the AppellateAuthority cannot be said to have come to an erroneous conclusion that thetenant has failed to discharge the burden on this aspect also. 18. As has been held by the Supreme Court in Sarla Ahuja v. United IndiaInsurance Co. Ltd. AIR 1999 SC 100 and by this Court in Raghavan v. Raju 1998 (2) KLT 394 the scope of interference under S.20 of the Rent Control Actis very limited. 18. As has been held by the Supreme Court in Sarla Ahuja v. United IndiaInsurance Co. Ltd. AIR 1999 SC 100 and by this Court in Raghavan v. Raju 1998 (2) KLT 394 the scope of interference under S.20 of the Rent Control Actis very limited. It is supervisory in nature with a view to cure any illegality,impropriety or irregularity that has crept in the orders of the authorities below.The purpose of S.20 of the Act is not to re-appreciate the evidence andsubstitute the conclusion of this Court for the conclusion of the AppellateAuthority. We do not find that the Judgment of the Appellate Authority suffersfrom any of the vices mentioned in S.20 of the Act to warrant interference atthe hands of this Court. In the result, we confirm the Judgment of the Appellate Authority and dismissthe revision. Learned counsel for revision petitioner submitted that the revisionpetitioner may be granted three months, time to vacate in the event of eviction. This request is reasonable and we are inclined to allow the same subject toconditions. The revision petitioner tenant shall deposit in the Rent ControlCourt the entire arrears of rent upto date within two weeks from today. Heshall also file an affidavit in the Rent Control Court within three weeks fromtoday unconditionally agreeing to surrender possession to the landlord on theexpiry of the period of three months from today.