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2000 DIGILAW 437 (KER)

Xavier v. Krishnakumari

2000-08-18

P.K.IYER BALASUBRAMANYAN, T.M.HASSAN PILLAI

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ORDER P.K. Balasubramanyan 1. These revisions are filed by the tenants of two residential buildings situated adjacent to one another. The landlord sought eviction of the buildings on the ground that she bona fide needed the buildings for her own occupation. The claim was resisted by the tenants. The tenants, in addition to questioning the bona fide need set up by the landlord, pleaded that they were entitled to protection of the second proviso to S.11(3) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court upheld the bona fide need set up by the landlord. The Rent Control Court also found that the tenants have not established that they are entitled to the protection of the second proviso to S.11(3) of the Act. The Rent Control Court therefore ordered eviction. The tenants filed appeals before the Appellate Authority. The Appellate Authority, on a reconsideration of the relevant materials, came to the conclusion that the bona fide need set up by the landlord has been proved and that the tenants have not established that they are entitled to the protection of the second proviso to S.11(3) of the Act. Thus, the Appellate Authority confirmed the order for eviction and dismissed the appeals. The decisions of the Appellate Authority are challenged in these revisions by the tenants. 2. When these revisions came up for admission, it was found that the landlord has filed a caveat before this court. Counsel for the landlord opposed the revisions. Hence, even when the matters came up, they were heard in detail and they are being disposed of by this order. 3. Though counsel for the tenants made an attempt to challenge the finding of the Rent Control Court and the Appellate Authority, that the landlord has established the bona fide need for eviction under S.11(3) of the Act, we are not satisfied that any interference is called for with the finding in that regard rendered by the Authorities below. The landlord is a sales girl in a shop in the same town. She has no property other than the petition schedule rooms. She was residing with her sister in the house of her sister, along with the family of her sister. She wanted to stay on her own, in the petition schedule buildings, the only property she had in town. This was the need spoken to by her. She has no property other than the petition schedule rooms. She was residing with her sister in the house of her sister, along with the family of her sister. She wanted to stay on her own, in the petition schedule buildings, the only property she had in town. This was the need spoken to by her. The Rent Control Court accepted her evidence in this regard. Nothing could be pointed out which would compel us to differ from the conclusion arrived at by the authorities below regarding the acceptability of the evidence of the landlord in that regard. We therefore find that the landlord has clearly established a bona fide need within the meaning of S.11(3) of the Act. 4. Learned counsel for the tenants seriously contended that the Authorities below were not justified in finding that the tenants were not entitled to the protection of the second proviso to S.11(3) of the Act. Counsel pointed out that the tenants mainly depended on the income derived from the respective businesses carried on by them in the petition schedule buildings for their livelihood and no other buildings were available in that locality for them to shift their business. Counsel points out that the rent for a similar room in the locality would now come to Rs. 1500/- to Rs. 2000/- as against Rs. 125/- to Rs. 150/- now being paid by the tenants to the landlord and that the suitability of another building must be decided in the light of the capacity of the tenants to pay the prevalent rent. We must notice here that this argument is not supported by relevant materials. The tenants have not shown, what was the income derived by them from the businesses carried on by them in the petition schedule buildings. Only then, it would be possible to say that the tenants could not be expected to take another building on rent at the prevalent current rate. In fact, in the absence of any material on the side of the tenants to show what was the income derived by them from the businesses carried on in the petition schedule buildings, the Authorities below strictly could not have found that the tenants were mainly depending for their livelihood on the income derived from the business carried on in the petition schedule buildings. Whatever that be, the fact that the tenants will be forced to pay the rent that is commensurate with the rent now prevalent in the locality, is not a ground to deny the landlord an order for eviction under S.11(3) of the Act on the ground that no suitable building is available to the tenant in the locality. The Rent Control Act does not contemplate that the landlord and the tenant should be pinned down to the state of things as they were on the date of the letting. What the court is called upon is to see whether on paying the current going rate of rent, any other building in the locality is available for the tenant to shift his business. It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining. Therefore, the argument in that behalf raised by counsel for the tenants cannot be accepted. We do not see anything in the decision of this Court in Krishnankunju Raveendran v. Sukumara Pillai ( 1999 (3) KLT 373 ) which compels us to take a different view. The use of the expression 'suitable building' can only mean suitable for his needs. It cannot be understood as a building for which the tenant need pay rent only at the rate that was prevailing twenty or thirty years ago. It will be an unrealistic interpretation of the statute. If the above decision has laid down any such proposition, with respect, we must say that we cannot find our way to agree with the same. But, for the purpose of this case, it is not necessary to pursue that aspect further. According to us, the tenants have failed to prove that they are depending mainly on the income derived by them from the businesses carried on by them in the petition schedule buildings. The income derived by them from the businesses have not been proved by them. According to us, the tenants have failed to prove that they are depending mainly on the income derived by them from the businesses carried on by them in the petition schedule buildings. The income derived by them from the businesses have not been proved by them. Mere oral assertion without any supporting material to show the income is not sufficient to prove that the tenants are mainly depending for their livelihood on the income derived by them from the businesses carried on in the petition schedule buildings. The evidence regarding the income derived by them is peculiarly within their knowledge and the best available evidence should be produced by them. They have not produced such evidence in this case. The Authorities have also found as a fact that other suitable buildings are available in the locality for them to shift. We see no reason to interfere with the finding in that regard. Thus, the finding that the tenants are not entitled to the protection of the second proviso to S.11(3) of the Act, is justified. 5. Thus, we find no reason to interfere with the decision of the Authorities below. We confirm the said decision and dismiss these revision petitions. 6. Considering the circumstances, we grant the tenants a time of three months from this date, to vacate the buildings on condition that the tenants deposit in the Rent Control Court, the entire arrears of rent due to the landlord, within one month from this date. If the arrears of rent is not deposited, the tenants would not be entitled to the time as granted above.