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2002 DIGILAW 195 (KER)

Chacko P Mathew v. Kuttappan

2002-03-19

K.A.MOHAMED SHAFI, K.S.RADHAKRISHNAN

body2002
ORDER K.S. Radhakrishnan, J. 1. Revision petitioners are the landlords. Eviction was sought for under S.11(2) (b), 11(3) and 11(4)(i) of Act 2 of 1965. Rent Control Court allowed eviction on all grounds. Matter was taken in appeal by the tenants. Appellate Authority allowed the appeal and set aside the order of the Rent Control Court. Hence this revision. 2. Petition schedule building was rented out for conducting a tailoring shop by the father of the petitioners on a monthly rent of Rs 100/-. Rent was subsequently enhanced to Rs 120/- in January 1986. Rent was in arrears from February 1987 onwards. First petitioner was employed in Indian Aluminium Company Limited and he retired from service on 30.9.1987. He wanted to start business in electrical goods in the petition schedule room. He was not in possession of any other room. First petitioner therefore bona fide required the premises for his own occupation. Further it was stated that though second respondent tenant was earlier conducting the tailoring shop subsequently he started another tailoring shop in K.A.P. Commercial Centre, Alwaye. First respondent was also later employed in the Good Shed at Alwaye and third respondent got employment as lecturer in the U.C. College, Alwaye. Consequently respondents tenants were not conducting any business in the tenanted premises. Further it was noticed that second respondent was not conducting the tailoring shop and he sublet the premises to his brother by name Surendran. Consequently eviction was sought for under S.11 (4) (i). Further it was also stated that the landlord was not in possession of any other room in the locality and that the tenant is not eking his livelihood on the income derived from the business conducted in the tenanted premises. Further it was also stated that various other rooms are available in the locality in which tenant could conduct his business. 3. Tenant resisted the petition. It was stated that petition schedule room was taken out on rent by the second respondent. It was pointed out that at the instance of the first petitioner's father all the respondents had affixed signature in the rent deed though actually respondents 1 and 3 were not having any connection with the rental arrangement. 3. Tenant resisted the petition. It was stated that petition schedule room was taken out on rent by the second respondent. It was pointed out that at the instance of the first petitioner's father all the respondents had affixed signature in the rent deed though actually respondents 1 and 3 were not having any connection with the rental arrangement. It was stated that there was no bona fide in the plea raised by the landlord and that the contention that the premises is required for conducting business in electrical goods is only a ruse to evict the tenant. Further it was stated that even if first petitioner wanted to start any business two other rooms are available in his possession. Further it was alleged that the main source of income of the second respondent is from the tailoring shop conducted by him in the petition schedule building and that no other buildings are available in the locality. 4. In order to establish his case, first petitioner got himself examined as P.W.I and second respondent was examined as RW. 1. We will first examine whether the Appellate Authority was justified in interfering with the order of eviction passed by the Rent Controller under S.11(3) of the Act. First petitioner was employed in Indian Aluminium Company and he retired from service on 30.9.1987. After retirement wanted to conduct some business and he thought of conducting business in electrical goods. We find first petitioner had passed electrical diploma course and he has got experience in dealing with electrical goods while he was employed in Indian Aluminium Company. We are not prepared to say the need projected by the landlord is not genuine. It is not unusual that a retired person wants to conduct some business after his retirement to argument his income. We may now examine as to whether the first petitioner has got any other building in his possession to conduct business in electrical goods. We may indicate in the Rent Control court no issue was raised on the first proviso to S.11 (3). In Para.6 of the objection filed to the Rent Control Petition second respondent has stated as follows: The above mentioned statement made in the objection was not supported by j any evidence either oral or documentary. We may indicate in the Rent Control court no issue was raised on the first proviso to S.11 (3). In Para.6 of the objection filed to the Rent Control Petition second respondent has stated as follows: The above mentioned statement made in the objection was not supported by j any evidence either oral or documentary. It is pertinent to note that when the tenant was examined as RW-1 he had no case in chief examination that landlord has got other building in his possession. A Division Bench of this court in Raghvan v. Govindan Nambiar (I.L.R. 1995 (2) Kerala 587) held that the primary burden to show that landlord has a building of his own in possession is of course on the tenant unless it is an admitted fact. When once it is shown that the landlord is in possession of another building of his own in the same town or village the burden swings over to the landlord to establish special reasons. We find in this case no issue was raised before the Rent Control court under the first proviso to S.11 (3). No evidence, either oral or documentary, was adduced by the tenant to show that landlord has got other building in his possession so as to defeat the claim under S.11(3). 5. We are of the view in the absence of any evidence the Appellate Authority has completely misdirected in holding that the landlord is in possession of other building. We find Appellate Authority has proceeded as if burden is on the landlord to prove that he has no other building in his possession. Appellate Authority had placed reliance on the evidence of the landlord and took the view that he has not explained away the circumstances under which one of the rooms in the petition schedule building remained closed for seven to eight months and found lacuna in the evidence of the landlord to uphold the plea of the tenant under the first proviso to S.11(3). Appellate Authority has cast entire burden on the landlord. We are of the view landlord need explain the circumstances and special reasons before the Rent Control Court only if it is established by the tenant that landlord has got other building of his own. On this question no issue was raised before the Rent Control Court. Appellate Authority has cast entire burden on the landlord. We are of the view landlord need explain the circumstances and special reasons before the Rent Control Court only if it is established by the tenant that landlord has got other building of his own. On this question no issue was raised before the Rent Control Court. There is no sufficient pleadings either by oral or documentary evidence to support the contention raised by the tenant. Further Appellate Authority has taken the view that P.W.1 had admitted about the availability of vacant rooms placing reliance on the decision of the Delhi High Court in Jawala Singh v. Prem Singh (AIR 1972 Delhi 221). We do not find any clear admission on the side of the landlord that he has got any building in his possession. Moreover right of the party can be defeated on the basis of alleged admission only if it is shown that admission is clear and conclusive. There should be no doubt or ambiguity about the alleged admission. In this context we may refer to the decision of the apex court in Chikkam Koteswara Rao v. Chikkam Subbarao and others ( AIR 1971 S.C. 1542 ) wherein the apex court held as follows: "It is clear from the judgment of the High Court that but for the aforementioned statement of the appellant, the High Court would not have disturbed the finding of the trial court as regards the properties covered by Ext B6. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission." We may reiterate in the absence of any issue raised under the first proviso to S.11(3) before the Rent Control Court or evidence adduced by the tenant, Appellate Authority was not justified in holding that landlord has got other building of his own so as to uphold the plea of the tenant under the first proviso to S.11(3). 6. We find both the Rent Control Court as well as the Appellate Authority have found that tenant was not successful in establishing the claim under the second proviso to S.11(3). 6. We find both the Rent Control Court as well as the Appellate Authority have found that tenant was not successful in establishing the claim under the second proviso to S.11(3). As held by this court in Thankappan Pillai v. Sukumari Amma ( 1986 KLT 109 ) in order to defeat the claim of the landlord under S.11 (3) both the limbs of the second proviso must be established. Apart from the interested testimony of the tenant to hold that he is mainly dependent on the income derived from the business conducted in the tenanted premises. Landlord on the other hand has adduced clear evidence to show that rooms are available in the nearby premises. RW-2 has also deposed that three rooms are lying vacant in the locality. We therefore find no reason to interfere with the concurrent findings of the courts below under the second proviso to S.11(3). We therefore reverse the finding of the Appellate Authority on S.11(3) and uphold the decision of the Rent Control Court ordering eviction under S.11(3) of Act 23 of 1965. 7. Landlord has raised a further contention that second respondent has sublet the building to his brother Surendran and it was he who was conducting the business. This ground urged by the landlord was found established by the Rent Control Court and ordered eviction. This finding was also disturbed by the Appellate Authority. Landlord has pleaded that second respondent tenant was conducting garment business in K.A.P. Complex, Alwaye. Landlord has got a further case that the business in the tenanted premises was not being conducted by second respondent. In the oral evidence of RW-1 it is true there is a statement that Surendran is paying the rent. Case set up by the second respondent was brother used to help him in the business. Surendran was not examined in this case. Even then we are not inclined to allow eviction under S.11 (4)(i) since landlord has not taken any steps to take out a commission or tender any independent evidence to establish his plea under S.1 l(4)(i). Therefore, we are not inclined to interfere with the order of the Appellate Authority under S.11(4)(i). 8. In the above mentioned circumstances, we allow this revision petition and order eviction under S.11(3) of Act 2 of 1965. We do so. Second respondent is given three months' time from today to vacate the premises.