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2006 DIGILAW 431 (KER)

Thanuja Sunderdas v. Sisirkumar Raj

2006-07-17

P.R.RAMAN, S.SIRI JAGAN, V.K.BALI

body2006
ORDER : V.K. Bali, J. Suryamkandi Sisirkumar Raj, s/o Rajaratnam along with his two sons Suryamkandi Sreemalkumar Raj and Suryamkandi Nirmalkumar, the landlords of the premises of Room No. 3/546 B of Calicut Corporation sought eviction of the tenants T.Thanuja Sunderdas, widow of V. M. Sunderdas, her daughter Deepa, and another minor daughter Shilpa and also minor son Vishnu, under Ss.11(3) and 11(4) (i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as “the Act”). The Additional Munsiff I, Kozhikode exercising the power of Rent Controller vide orders dated 21 st August, 2003, has held that the second petitioner required the tenanted room for starting a business for his father dependent on him and ordered eviction under S.11 (3) of the Act of 1965. Aggrieved by the order aforesaid, the tenants carried an appeal which was dismissed by the District Judge, Kozhikode, exercising the power of the Rent Control Appellate Authority vide orders dated 8th April, 2005. Still aggrieved, the tenants have filed this revision challenging the aforesaid orders. 2. The learned Division Bench, before which the matter came up for hearing, while first adverting to the contentions raised by the tenants with regard to the landlord not offering himself for examination to prove the bona fides of his need of the building leased out and therefore the requirement of the landlord having not been proved, by referring to the judicial precedents for and against the parties observed that, “We may, perhaps be able to say that the factum of bona fides to be proved is like any other facts which could be proved by adducing cogent evidence, even in the absence of the landlord being volunteering for an examination in court”. Having observed so, learned Division Bench further observed that the “issue could not be solved on determination of the rival contentions of the learned counsel for the parties as mentioned above, as the tenant has sought the protection of the second proviso to S.11(3) of the Act”. 3. The protection contained in the second proviso to S.11 (3) of the Act is in two limbs. 3. The protection contained in the second proviso to S.11 (3) of the Act is in two limbs. The first limb of the second proviso is as to whether the tenant is mainly dependent upon the income derived out the business conducted in the tenanted premises; the second limb of the said proviso pertains to there being no other suitable building in the locality for such tenant to carry on such trade or business. The learned Division Bench observed that a finding on the first limb of the second proviso too would not give a quietus to the dispute between the parties as the consideration has to step over to the second limb of the second proviso to S.11 (3) of the Act. On the second limb of the second proviso to S.11(3) of the Act, the learned Division Bench further observed that, it is the duty of the tenant to prove that there are no other suitable building to which his business could be shifted in case an order u/S 11(3) of the Act is passed in favour of the landlord. On this issue, the tenant had relied upon the decision in Sadanandan v. Kunheen ( 1991 (2) KLT 628 ). In the judicial precedent in Sadanandan v. Kunheen (supra), as per the stand taken by the petitioners, they had asserted in the examination in chief that no other suitable building was available in the locality at the material point of time and further that, this assertion has never been questioned in cross-examination and further when the landlord who did not speak about the availability of any other building in the locality, the burden of the tenant so to show that he would fall in the exception contained in the second limb of the second proviso to S.11 (3) of the Act stood discharged, or in any case, the burden stood shifted to the landlord to prove otherwise and inasmuch as, the landlord had not got his own statement recorded, the revision had to be allowed. The learned Division Bench while dealing with this contention then made reference to a Division Bench decision of this Court in Kochappan Pillai v. Chellappan ( 1976 KLT 1 ) wherein it was held that when one claims the benefit of exemption from a statute, the entire presumption shall always be against him and the burden of proof that he comes under the shelter of exemption is on the person who claims the benefit to establish the necessary ingredients. Reproducing the relevant part of the decision in Sadanandan v. Kunheen (supra) and holding that no definite conclusion on a crucial issue has been arrived at therein, despite the fact that the Division Bench dealing with Sadanandan v. Kunheen has referred to the decision in Kochappan Pillai v. Chellappan & Anr. decision in Ebrahim Ismail Kunju v. Phasila Beevi ( 1991 (1) KLT 861 ) and after reproducing the relevant part of the judgment in Kochappan Pillai v. Chellappan (supra), observed that, when a tenant may press into service the benefit of proviso to S.11(3) of the Act, in order to deny the landlord the fruits of the factum which he had proved to come under the main part of S.11 (3), necessarily the person who seeks exemption therefore is cast with a burden of a higher pedestal to establish the necessary ingredients to come within the fold of such exemption, to get out of the clutches of the order of eviction. This aspect of the matter, it is observed, had not been dealt with in any later Division Bench decisions in Sadanandan v. Kunheen (supra), and also the two decisions in Krishnankunju Raveendran v. Sukumara Pillai ( 1999 (3) KLT 373 ) and Kuncheria v. Reyas (ILR 1999 (2) Ker. 562) In the manner aforesaid, the Division Bench framed the following question contained in paragraph 11 of the reference for determination by a Full Bench of this Court. 562) In the manner aforesaid, the Division Bench framed the following question contained in paragraph 11 of the reference for determination by a Full Bench of this Court. “Therefore, this being an important question regarding the burden of proof to be discharged by the tenant to claim exemption under the proviso to S.11(3) of the Act and the point of time when this burden of proof stands shifted from one side to other, shall have to be found authoritatively by a Full Bench, especially when there are four Division Bench judgments which did not address to this important aspect adverted to in Kochappan Pillai's case.” Whereas, a reading of the reference order would clearly manifest that the Division Bench was in a position to deal with the contention raised by the tenant with regard to the effect of non-examination of the landlord or absence of landlord in volunteering himself for examination before the court, the real difficulty arose in determining the controversy with regard to there being no clarity in law with regard to the effect of the tenant stating in examination-in-chief that there are no suitable buildings available in the locality for him to carry on such trade or business, even though, we may state that in para 9 of the reference order, it has been observed that, once the tenant may claim the benefit of the proviso it would mean that he does not come within the main proviso of the plenary statute, ingredients of which had to be proved by the landlord to have the tenant evicted from the building in question and in such circumstances, in order to deny to the landlord the fruits of the factum which he had proved to come under the main part of the S.11 (3), necessarily the person who seeks exemption is cast with burden of a higher pedestal. Only because this aspect of matter was not dealt with by the later Division Bench decisions in Sadanandan v. Kunheen (supra) and other decisions, reference whereof has been made above, the matter has been referred to a Full Bench. 4. The facts culminating into the Judgment in Sadanandan v. Kunheen (supra) would reveal that landlord had initiated proceedings under the Act of 1965 for eviction of the tenant, one of the grounds pleaded by the landlord claiming eviction was bona fide need of the building for own occupation. 4. The facts culminating into the Judgment in Sadanandan v. Kunheen (supra) would reveal that landlord had initiated proceedings under the Act of 1965 for eviction of the tenant, one of the grounds pleaded by the landlord claiming eviction was bona fide need of the building for own occupation. The tenant in response to the pleading contained in the petition alleged that the bona fide need urged was only a pretext to eviction. He further pleaded that even if the landlord, was in a position to establish the bona fide need for his own occupation, he was not entitled to protection of second proviso to S.11(3) of the Act. The Rent Control Appellate Authority came to the conclusion that there was sufficient material before the court to hold that the landlord has established very satisfactorily the bona fide need in the petition. That question was not even in challenge at the stage of revision. It was only the entitlement of the tenant for the protection provided under the second proviso to S.11(3) of the Act, which was in question. While dealing with the second proviso, it was observed that when once the landlord satisfies the bona fide 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). Further, the second proviso takes in two ingredients. The one is a positive ingredient and the other one is expressed in the negative form. The first ingredient is that a tenant who has incurred a 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 derived from any trade or business carried on in the building in question. The second limb to be proved by the tenant to attract the second 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. The Bench further observed that the proviso has two distinct parts, one a fact with a positive content to be proved by the tenant and the other negative fact to be established. The Bench further observed that the proviso has two distinct parts, one a fact with a positive content to be proved by the tenant and the other negative fact to be established. The Division Bench then referred to the decision in Kochappan Pillai v. Chellappan (supra) wherein it was held that both the above aspects have to be proved by the tenant to attract the protection of the proviso. On the contention raised by the counsel for the tenant that the decision reported in Kochappan Pillai v. Chellappan (supra) was doubted by one of the members of the Bench in another decision in Ebrahim Ismail Kunju v. Phasila Beevi (supra), it was observed that the same was not precisely a very correct submission, since the whole of the ratio of the decision has not been doubted and the doubt was only in a very small area. The learned Division Bench then in para 7 proceeded to observe as follows : “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 integrants 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. 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.” The facts in Sadanandan v. Kunheen would clearly manifest that the dispute between the parties pertained to the first limp regarding tenant depending for his livelihood mainly upon the income derived from the business carried in the building in question. The dispute between the parties did not pertain to the second limb of the second proviso to S.11 (3) of the Act. The observation contain in Para 7 that “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 and then the burden shifts to the landlord since he can positively prove the fact that buildings/building are/is available” were made by way of an illustration. 5. Although not clearly stated, the reason why the matter has been referred to the Full Bench is that the learned Division Bench was of the view that when the landlord was able to prove the ingredients which would entitle him to prove eviction of the tenant on the ground of his bona fide requirement, the tenant who may seek exemption is cast with a burden of a higher pedestal to establish the necessary ingredients to come within such exemption and this aspect was not dealt with in the later Division Bench decisions in Sadanandan v. Kunheen (supra) and the other two decisions referred to in paragraph 10 of the reference order. It again appears, even though not directly mentioned, that the Division Bench referred the matter to the Full Bench in view of the observation made in Sadanandan v. Kunheen (supra) with regard to the shifting of burden of proof if the tenant wants to prove in court that no suitable building was available in the locality having not been successfully challenged in cross-examination and the view expressed by the Division Bench while referring the matter that when the landlord has proved his case falling within the main provision of the plenary statute, the tenant who would like his case to fail in the exception clause would be cast with a burden of a higher pedestal and this aspect of the case was not dealt with in Sadanandan v. Kunheen (supra) and other decisions referred to above. 6. We have heard learned counsel for the parties and with their assistance examined the records of the case. Before we may proceed any further, we would like to mention that, there is no dispute whatsoever that the second proviso carves out an exception to the exemption provided in S.11(3) of the Act and therefore, the burden to prove the same as also the relevant facts stated in the exemption would always be on the tenant. Reference in this connection be made to a Full Bench decision of this Court in Francis v. Sreedevi Varassiar ( 2003 (2) KLT 230 (F.B.)) This has been the consistent view of this Court reflected in number of judicial precedents referred to by the Full Bench in the aforesaid decision. It is settled proposition of law that the burden to prove an exception always lies on the party who claims the same and further that it has to be taken most strongly against the party for whose benefit it is made and it is for him who sets it up to establish it. This burden of proof would never shift even though the onus of the burden of proof in civil matters would keep on shifting from one party to the other depending upon the facts and circumstances of each case. A Division Bench of this Court in Kochappan Pillai v. Chellappan (supra) had an occasion to deal with this precise question. This burden of proof would never shift even though the onus of the burden of proof in civil matters would keep on shifting from one party to the other depending upon the facts and circumstances of each case. A Division Bench of this Court in Kochappan Pillai v. Chellappan (supra) had an occasion to deal with this precise question. The facts of that case would reveal that the Bench which heard the matter doubted the correctness of the decision in Ikkorankutty v. Hariharan ( 1973 KLT 986 ) of a learned Single Judge under the Act of 1965. The Single Judge had held that the burden of proof of availability of other suitable building in the locality was on the landlord. In considering the question whether the alternate building available was suitable or not, the relevant matters to be considered were whether the tenant could carry on his business as profitably as in the original building, whether the plinth area and the comparative advantages were the same etc., it was opined by the learned Single Judge that the point of time material for determining of availability of alternate building was the passing of the order for eviction while the burden of proving one part of the proviso was on the tenant, the burden of proving the remaining part was on the landlord. The law laid down by the learned Single Judge was overruled in Kochappan Pillai v. Chellappan (supra) by holding as follows : “7. In order to consider burden of proof, it is to the affirmative in substance and not form that one has to look. A grammatical negative need not necessarily be a legal negative also. Thus a legal affirmative may sometimes be negative in form involving proof of the negative, such as the fact that goods were not consigned within a specified period or that houses were not built according to specification, or that a transaction was in reality one different from what on its face appeared to be, or that there was omission to insure premises or that there was assignment of premises without consent -- See the cases cited at footnote (e) at page 267 in Halsbury's Laws of England, Third Edition Volume 15. The use in the second proviso to S.11(3) of the Act of the words, 'there is no other suitable building' indicates that it is not proof of availability but proof of just the opposite that is insisted on. At first blush it may appear that there would be practical difficulty to prove it, being negative in form. But really it is not so. It is capable of easy and positive proof by examination of the Accommodation Controller or such other effective means. 8. The principal enacting provision in S.11 (3) says that eviction can be ordered in cases where the landlord bona fide needs the building for his own occupation or for the occupation of a member of his family dependent on him. 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. On the whole, then, on a review of the principles involved, it is clear that the burden of proving all the facts in the second proviso to S. 11(3) of the Act is on the tenant.” Another Division Bench of this Court in Kuncheria v. K.A. Reyas (supra), while precisely dealing with the burden of proof held that the same was always on the tenant to prove and would not shift. It was further held that in exceptional cases, the burden may be discharged by examining the Accommodation Controller or by an affirmation by the tenant that there was no other suitable building available, as was pointed out in ( 1976 KLT 1 and 1991 (2) KLT 628 ) even though the said two decisions do not lay down any absolute rule on this aspect, as it was by way of illustration that such observation was made. It was further held that as to whether a tenant had in a particular case discharged the burden would pertain to the realm of evidence and had to be decided after appreciation of the evidence. It was further held that as to whether a tenant had in a particular case discharged the burden would pertain to the realm of evidence and had to be decided after appreciation of the evidence. The aforesaid observation was made by the Division Bench after taking into consideration the provisions contained in Ss.101 to 104 of the Evidence Act and also the judicial precedents in Raghavamma v. Chenchamma ( AIR 1964 SC 136 ), Harmes v. Hinkson ( AIR 1946 P.C. 156 ) Devadattam v. Union of India ( AIR 1964 SC 880 ) and Narayan v. Gopal ( AIR 1960 SC 100 ). It will be unnecessarily burdening this judgment by simply reiterating the relevant provisions of the Evidence Act and the judicial precedents mentioned above. Suffice it, however, to say that, to prove the exception carved out in the second proviso to S.11(3) of the Act of 1965, the burden of proof is always on the tenant. The onus to discharge the burden of proof would keep on shifting during the course of trial. There is a marked distinction between burden of proof and onus of proof. Whereas burden to prove the exception is always upon the tenant and it never shifts, the onus of proof will shift. Once the parties get their evidence recorded, the burden of proof is important only where by way of not discharging the same put upon that party, it must eventually fail. However, as mentioned above, where the parties have joined the issue and have led evidence and the same can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. That is what was precisely held by the Honourable Supreme Court in Narayan v. Gopal (supra). 7. Before we may part with this part of the case, we would like to mention that during the course of arguments, counsel for both the parties were ad idem that no straitjacket formula with regard to the time when onus to prove shifts can be laid and it all depends on the facts and circumstances of each case, where a particular party has led sufficient evidence thus shifting the onus to prove on a particular issue upon the adversary. This seems to be the correct law and the question referred to by the Division Bench as viewed above has to be answered accordingly. This seems to be the correct law and the question referred to by the Division Bench as viewed above has to be answered accordingly. We would not like to go to the facts of this case as no direct question as to whether in view of the tenant having led evidence that there is no other suitable building available in the locality for him to carry on his trade or business, which has not been questioned by the landlord in cross-examination, would result in shifting the onus to prove on the landlord has been framed. Obviously, the Bench dealing with the matter on the facts and circumstances of the case would deal with the same. We may however, hasten to add that while so determining, the settled law reflected in Kochappan Pillai v. Chellappan ( 1976 KLT 1 ), that one who wants his case to fall in the exception or exemption has to strictly prove it, shall be taken into consideration. The reference is answered accordingly.