JUDGMENT : Mary Joseph, J. 1. Petitioner in R.C.P. No. 16/2008 on the files of Rent Control Court/Additional Munsiff Court-I, Kozhikode is before us in this revision. The respondent herein is the respondent therein. Parties to this revision are referred to hereinafter as ‘the landlady and tenant’ for convenience. 2. Eviction was sought by the landlady in respect of the tenanted premises which is a building taken by the respondent, who was the tenant, as per rent deed No.2447/83 for the purpose of conducting a radio repairing shop. The rent originally fixed was Rs.75/-, which was enhanced to Rs.115/- from 1.5.1994 and to Rs.140/- from 1.5.1997 and to Rs.165/- from 1.1.2001 and that is prevalent as on date. The contention of the landlady was that the tenant paid rent up to December 2003 and thereafter, it was defaulted. It is also her contention that her husband having been retired from Central Government Service is now left without any avocation or income and some stationery shop is necessarily to be started with and he needs a vacant space for the purpose to be accomplished. 3. The landlady caused a lawyer notice to be served upon the tenant demanding arrears of rent and vacant surrender of petition scheduled room. It is contended that on receipt of the notice, a money order was sent by the tenant and that was adjusted by her towards the rent from 2004 to February 2006. According to her, the tenant did not surrender the tenanted premises and it was in the said circumstances that R.C.P. No. 16/2008 was preferred before the Rent Control Court projecting grounds of eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’). 4. The tenant filed counter statement in the R.C.P. The landlord tenant relationship, interest and rate of rent were not disputed. Admittedly, rent was in arrears only from 2007 and not from the date as alleged by the revision petitioner. According to him, rent was paid directly to the husband of the landlady and also deposited in the account maintained by the landlady with Chelannur Service Co-operative Bank by way of daily deposit. Receipt was issued from January 2004 till April 2005 and issuance of receipt was declined thereafter and a demand for enhancement of rent to Rs.500/- was made. According to him, rent was paid directly to the husband of the landlady and also deposited in the account maintained by the landlady with Chelannur Service Co-operative Bank by way of daily deposit. Receipt was issued from January 2004 till April 2005 and issuance of receipt was declined thereafter and a demand for enhancement of rent to Rs.500/- was made. Thereafter rent was also paid for the period of from May 2005 till 2007 by way of Money Order. Accordingly, it was contended that rent was not in arrears as claimed by the landlady. 5. It is also contended that bonafides are not there in the need projected by the landlady that her husband desires to start a stationery shop. According to him, rent was sought to be enhanced to Rs.500/- and therefore, the bona fide need projected can only be taken as a ruse to evict him. Taking specific contentions as to availability of vacant rooms with the landlady, non-availability of any room in the locality or neighbourhood to shift his business and his dependency mainly on the income from the business run in the tenanted premises as his source of livelihood, the tenant sought protection from an order of eviction under the first and second proviso to Section 11(3). 6. The landlady and the tenant let in oral evidence as PW1 and RW1. Exts.A1 to A3 and Exts.B1 to B9 are the documentary evidence brought on record respectively by the revision petitioner and the respondent. 7. The Rent Control Court appreciated and evaluated the arguments advanced by either parties in the backdrop of the evidence aforesaid and found no substance in the claim for eviction on the grounds projected under Sections 11(2)(b) and 11(3) of the Act and accordingly, dismissed the R.C.P. and declined an order of eviction in favour of the landlady. 8. The defeated landlady took the matter in appeal before the Rent Control Appellate Authority as R.C.A.No.166/2008 and the appellate authority concurred with the finding of the Rent Control Act and thereby dismissed the appeal and confirmed the order of the Rent Control Court. The aggrieved landlady is now before this Court in revision on the following grounds:- A. The impugned orders of the Courts below are illegal and unsustainable in law. B. The Courts below erred in accepting Ext.B7 document. The aggrieved landlady is now before this Court in revision on the following grounds:- A. The impugned orders of the Courts below are illegal and unsustainable in law. B. The Courts below erred in accepting Ext.B7 document. C. The Court below ought to have considered the fact Ext.B7 will not indicate that the liability of the tenant to pay rent is discharged. D. The Court below wrongly caste the burden of proof on the petitioner in the matter of payment and adjustment of rent. E. The Court below ought to have ordered eviction under Section 11(2)(b) of the Act. F. The findings of the trial court in paragraphs 7 to 11 of the trial court judgment in so far as they are against the petitioner are unsustainable in law. G. The court below ought to have allowed the petition under Section 11(3) of the Act. H. The court below ought to have concluded that the first proviso is not attracted to the facts and circumstances of the case. I. The courts below were confused by the building numbers and has passed eviction order based on perverse appreciation of facts. J. In any event the court below ought to have considered the fact that the rooms alleged vacant are not proved to be vacant and are suitable for the petitioner. K. The finding in paragraph 14 to 17 of the trial court judgment regarding first proviso in so far as it is against the petitioner is unsustainable in law. L. The court below are not justified in relying on Ext.B8 extract of tax assessment register. M. The authorities below went wrong in not allowing the Rent Control Petition. N. The judgment of the authorities below are irregular, incorrect and perverse. O. The impugned judgment and order are unsustainable in law, facts and circumstances of the case. 9. Sri Firoz K.M. and Sri Srinath Girish, the respective counsel representing the rival parties advanced arguments before us to substantiate the contentions as aforesaid. 10. The first question needs our indulgence is whether the authorities below are justified in declining order of eviction under Section 11(2)(b) of the Act on the ground that the landlady failed to establish the same. 11. In the backdrop, the pleadings and the evidence need to be evaluated. 10. The first question needs our indulgence is whether the authorities below are justified in declining order of eviction under Section 11(2)(b) of the Act on the ground that the landlady failed to establish the same. 11. In the backdrop, the pleadings and the evidence need to be evaluated. The sustainability of a claim for eviction under Section 11(2)(b) pre-supposes the issuance of a notice apprising the factum of default and demanding the rent arrears. Evidence unveils that such a notice was sent by the landlady and it is Ext.A2. 12. A glance at Ext.A2 discloses to us that it was issued on 30.8.2007. The demand was made in Ext.A2 for arrears of rent from January 2001 at the rate of Rs.165/-. Admittedly of the parties when notice demanding rent arrears was served, the same was sent through money order. The payment, in view of the appellant, was made to be adjusted towards rent arrears from 1.5.2005 till June 2007. But, to his dismay, the amount was adjusted by the landlady towards the rent arrears due from January 2004 till February 2006 and claimed the rent as in arrears from March 2006. Despite the claim that the entire rent was paid, receipts evidencing payment of rent at any point of time are not produced by the respondent. According to the tenant, PW1 the husband of the landlady was collecting rent regularly without any receipt being issued and in such a circumstance that he started remitting the rent through the account of the landlady as per Ext.B7 passbook. Ext.B7 is a passbook produced by the tenant and got marked in evidence to establish that rent was deposited on daily payment basis. The receipt of rent directly was admitted by PW1. But PW1 was not specific about the period for which he had received the rent accordingly. In the event of admission by PW1 of receipt of rent directly from the tenant, he cannot evade stating the period for which rent was received by him accordingly. Landlady’s husband admitted in the box as PW1 that after receipt of Ext.A2 notice, Rs.4290/- was paid by the tenant by way of money order and he received it. According to hi, actually the rent was in arrears from 2004 but, the tenant mistakenly noted in the money order that the amount remitted was for adjustment towards rent arrears dues from May 2005. According to hi, actually the rent was in arrears from 2004 but, the tenant mistakenly noted in the money order that the amount remitted was for adjustment towards rent arrears dues from May 2005. According to PW1, the amount sent by money order was adjusted by the landlady towards rent arrears due from January 2004 and therefore, rent was still in arrears from March 2006 at the rate of Rs.165/- and the mistake when brought to the notice of the tenant, she had agreed to pay the same. 13. In cross-examination, PW1 has admitted that rent was received by him till December 2003 and receipts were issued for that. The forwarding of rent of Rs.4290/- by way of money order is also not disputed. Admittedly of him, rent was also deposited daily in the account of the landlady in Chelannur Service Co-operative bank as revealed from Ext.B7 the passbook pertaining to such deposit. PW1 has also conceded the claim of the respondent of deposit of a sum of Rs.2490/- (Rs.1500 + Rs.990/-) before the court after issuance of Ext.A2 notice. 14. Therefore, it is discernible from the testimony of PW1 that against the demand of the landlady for rent arrears from January 2004 through Ext.A2 notice, Rs.4290/- was paid by money order, a sum of Rs.1500/- was deposited in the account of the landlady in Chelannur Service Co-operative Bank as evidenced from Ext.B7 and Rs.2490/- by way of deposit in the court pursuant to receipt of Ext.A2 notice. Therefore, there is no basis for the claim of the landlady in the rent control petition that rent was in arrears from March 2004. In the case on hand, the landlady admits receipt of the money order, but she is differing only with respect to the date from which the arrears of rent fell due. But it is surprising to note that the landlady credited the amount without the alleged mistake being brought to the notice of the tenant. This attitude of the landlady improbabilise his case that rent was in arrears from 2004. The authorities below have concurred in holding that the landlord was unsuccessful in establishing his claim for arrears of rent. Therefore, the Rent Control Court and the Rent Control Appellate Authority cannot be blamed for declining an order of eviction in favour of the landlady under Section 11(2)(b) of the Act. The authorities below have concurred in holding that the landlord was unsuccessful in establishing his claim for arrears of rent. Therefore, the Rent Control Court and the Rent Control Appellate Authority cannot be blamed for declining an order of eviction in favour of the landlady under Section 11(2)(b) of the Act. In our considered opinion, the authorities below are perfectly justified in doing so and there is no scope for our indulgence. We did not notice any reason to interfere with the concurrent findings by the authorities below in exercise of revisional jurisdiction in view of the discussion hereinabove made. 15. The challenge secondly was on the concurrent findings of the authorities below that bona fides is lacking in the claim of the landlady for vacant surrender of the petition schedule building. 14. It is urged by the learned counsel for the landlady that the court below ought to have considered the fact that the rooms allegedly available as vacant are not proved to be so and suitable for the petitioner. 15. The bona fide need urged by the landlady in the rent control petition is the requirement of her husband, who is a retired Government employee and pensioner, to eke livelihood. According to her, her husband is getting only a meager sum as pension, which is inadequate to sustain the family. That envisioned a thought in their mind to start a stationery business in the petition schedule shop room owned by her. The said shop room being in the occupation of the tenant, she was left with no other alternative than to prefer the Rent Control Petition, seeking eviction of the petition schedule shop room under Section 11(3) of the Act. 16. As per Section 11(3), a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of the family dependent on him. Therefore, in order to get the tenant evicted from a rented shop room owned by the landlord, the latter has to establish a bona fide need of the said shop room either for his own occupation or for the occupation of any member of the family dependent on him. 17. Therefore, in order to get the tenant evicted from a rented shop room owned by the landlord, the latter has to establish a bona fide need of the said shop room either for his own occupation or for the occupation of any member of the family dependent on him. 17. In the case on hand, the landlady has applied for eviction of the petition schedule shop room under Section 11(3) of the Act for the bona fide need of her husband to start a stationery shop. It is pleaded by the landlady that her husband, being a pensioner has no avocation of his own at the relevant time and he is solely depending upon the pension earned by him to survive and maintain his family. It is pertinent to note here that the word ‘dependent’ found in Section 11(3) propounds not only financial dependency, but also dependency of the building. In the case on hand, the husband of the landlady for whose bona fide need, vacant surrender of the petition schedule shop room was sought for, belongs to her. Husband of the landlady when mounted in the box to depose as PW1 has not spoken that he is in possession of any building or shoproom. On the contrary, it has come in evidence that several shoprooms are lying vacant in the very same building, wherein the petition schedule shoproom is situated and in the nearby building belonging to the landlady. Since PW1, the husband of the landlady has no building or shoproom of his own, the only way out for him is to depend on his wife for the space to start up the business and the dependency on his wife for the building owned by her is sufficient to meet the claim under Section 11(3) of the Act. PW1 being a pensioner and left with no other avocation, there is no reason to doubt the bona fides in his claim to start with a stationery shop. 18. At this juncture, both the provisos available under Section 11(3) of the Act are pertinent to be dealt with. PW1 being a pensioner and left with no other avocation, there is no reason to doubt the bona fides in his claim to start with a stationery shop. 18. At this juncture, both the provisos available under Section 11(3) of the Act are pertinent to be dealt with. The first proviso strictly forbids the Rent Control Court from issuing any direction to the tenant to put the landlord in possession of the building, even after establishing that the landlord or his dependent, bona fide requires the building for reasons of his own, if, it is brought to its notice in evidence that the landlord has another building of his own in his possession in the same City, Town or Village, and special reasons are not shown by the landlord regarding non-occupation of those vacant rooms. 19. Therefore, when possession by the landlord of another building is established and special reasons are not shown by the landlord for non-occupation of the same, the Rent Control Court is debarred from passing an order of eviction. The burden to establish another vacant building or room is available in the ownership and possession of the landlord in the same city, town or village is primarily on the tenant. Once the initial burden is discharged by the tenant, the burden shifts to the landlord and he has to establish special reasons for not occupying those for his bona fide need. 20. In the case on hand, Extracts of the Building Tax Assessment Register of Chelannur Grama Panchayat for the periods from 1997-1998 to 2008-2009 in respect of Ward No.10 is produced and marked in evidence by the respondent as Ext.B8. A perusal of Ext.B8 would reveal that the landlady is in possession of several shoprooms in Ward No.10 of Chelannur Grama Panchayat. It is also revealed that she is also in possession of two rooms in Ward No.12. The documents cited supra gave the impression that except one room, all other rooms in the possession of the landlady are lying vacant. The landlady has raised a specific contention on the basis of the entries in Ext.B8 that the shoproom shown as occupied by the tenant in the case in question is bearing new number 650 and old number 678, whereas the actual numbers respectively of the shop room in the possession of the tenant are 678 and 648. The landlady has raised a specific contention on the basis of the entries in Ext.B8 that the shoproom shown as occupied by the tenant in the case in question is bearing new number 650 and old number 678, whereas the actual numbers respectively of the shop room in the possession of the tenant are 678 and 648. It is urged by the learned counsel for the landlady on the basis of the said discrepancy that the genuineness of Ext.B8 is doubtful and it cannot be relied upon. According to her, the tenant must have manipulated the entries and therefore, actual numbers of the shoprooms were not reflected therein. 21. Ext.B8 bears the signature of the Secretary (Special Grade), Chelannur Grama Panchayat and the seal of the office of the Chelannur Grama Panchayat. May be that some errors have been crept into the document while preparing the same. But, solely on the reason of the errors of the nature, it is not just and proper to contend that the document is a concocted one. Moreover, the landlady could have taken steps to examine any responsible officer of Chelannur Grama Panchayat to substantiate her claim that Ext.B8 is the outcome of manipulation. She has not opted to that recourse and on the very reason, we are declined to view the contention as one without basis. Therefore, we are constrained to take the view that the argument of the learned counsel for the landlady in that respect is unsustainable. The tenant, undoubtedly has succeeded in discharging the primary burden cast upon him by virtue of the first proviso to Section 11(3) through Ext.B8. When it is brought to the notice of the court by supporting materials that several vacant rooms are available in the possession of the landlady, it is incumbent upon her to shoulder the burden to cite reasons of her own to establish her reluctance in opting those rooms for the purpose of starting the stationery shop. The landlady must establish either the reasons which prompted her to prefer the vacant surrender of the tenanted shop room or the reasons which prevented her to opt other rooms vacantly available with her. In the case on hand, the landlady has not put forth any such reasons. The landlady must establish either the reasons which prompted her to prefer the vacant surrender of the tenanted shop room or the reasons which prevented her to opt other rooms vacantly available with her. In the case on hand, the landlady has not put forth any such reasons. On the contrary, the landlady has stoutly denied availability of vacant rooms in her possession and took the contention that Ext.B8 which indicates availability of vacant rooms is a manipulated document. 22. At this juncture, it is pertinent to have a look at the oral evidence let in by PW1, the husband of the landlady during cross-examination which is reproduced hereunder: “……………MALAYALAM” 23. In the context, we cannot also lose sight of what has been spoken by PW1 during his cross examination. The relevant portion is quoted hereunder for appreciation. “……………MALAYALAM” 24. The aforesaid quoted extracts, contradict the specific case of the landlady that vacant rooms are not available in her possession at the relevant time, and that all the rooms in her possession are in occupation of the tenants. PW1 has deposed in the box on the premise that those rooms were in occupation of tenants, but was ignorant as to the tenants who are in occupation therein. It is the specific case of PW1 that rent from the petition schedule shop room was collected by him. If that be so, he must have definite idea about the tenants in occupation of the rooms belonging to the landlady, who is none other than his wife. His ignorance about the occupations of the shop rooms, indicates and probabilise the case of the tenant that those room are lying vacant. 25. The authorities below have concurrently found that the second proviso to Section 11(3), has not been established by the tenant and therefore, the tenant is not entitled to get protection of the same. The second proviso incorporates within it, two conditions viz., 1. The tenant has to establish that he is depending for his livelihood mainly on the income derived from any trade or business carried on in the building which is sought to be evicted. 2. The tenant has to establish that no other suitable building or shop room is available in the locality for him to carry on the trade or business. 2. The tenant has to establish that no other suitable building or shop room is available in the locality for him to carry on the trade or business. If the tenant satisfactorily establishes the two conditions aforesaid, the Rent Control Court is prevented from issuing an order of eviction for personal use, though the landlord has established his bona fide need of the building or shop room. 26. In the case in question, the tenant failed to establish the twin conditions. Going by the testimony of RW1, it is seen stated by him that he is depending for his livelihood mainly on the income derived from the business conducted in the shop room and that no other building is available in the locality for him to shift his business. Despite stating so, the tenant has not taken any steps to establish the same. No commission was taken out by the tenant. Relevant materials showing the income derived from the business are also not produced by the tenant. It was brought in evidence by PW1 that rooms belonging to one Ahammed Koya are available in the said locality and the tenant could very well shift his business in any of those rooms. When the tenant was confronted with this factum, he deposed to the following effect:- “………….MALAYALAM” 27. The tenant has not taken out any commission to establish his specific case that no rooms suitable to shift his business are available in the locality. Even though he was confronted with the factum of availability of vacant rooms in the possession of one Mr. Ahammed Koya, he deposed as ignorant of the same. In the said circumstances, the authorities below cannot be said to have gone wrong in denying the protection available under the second proviso to Section 11(3) of the Act to the tenant. 28. Even though the petitioner/landlady has succeeded in establishing that the petition schedule shop room is required by her husband, who is a pensioner to start with a stationery shop therein, she has not succeeded in proving special reasons in respect of the vacant rooms, proved primarily to have been available in her possession by the tenant. In the said circumstances, the landlady, as rightly found by the authorities below, has thoroughly failed in establishing specific reasons. In the said circumstances, the landlady, as rightly found by the authorities below, has thoroughly failed in establishing specific reasons. Even if bona fide need is established, in the event of the evidence brought on record to the effect that the landlady is in possession of other vacant rooms, and in the absence of any special reasons being furnished for non-opting those rooms for the purpose, the Rent Control Court is barred from issuing an order of eviction under Section 11(3). The authorities below are perfectly justified in declining to pass such an order of eviction in favour of the landlord. 29. In view of the aforesaid discussion, we are of the view that no valid grounds exist to interfere with the concurrent findings of the authorities below in this revision. The authorities below are perfectly justified in passing the impugned order. In the result, this Rent Control Revision is dismissed. The impugned judgment of the Rent Control Appellate Authority, Kozhikode and the order of the Rent Control Court, Kozhikode are therefore confirmed. Parties shall bear their respective costs.