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2018 DIGILAW 216 (KER)

Hassan Koya A. K. v. Eranholi Koya

2018-03-05

C.T.RAVIKUMAR, MARY JOSEPH

body2018
ORDER : Mary Joseph, J. The tenant is in revision against the concurrent findings of both the Rent Control Court as well as the Rent Control Appellate Authority on arrears of rent and bona fide need for own occupation and consequent passing of order of eviction against him under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act'). 2. Eviction of the revision petitioner/tenant was sought for by the landlord who is the respondent in this revision petition under Section 11(2)(b) and 11(3) of the Act. 3. The predecessor-in-interest of the respondent as per a rental agreement dated 23.6.2011 had leased out the petition scheduled room to the tenant and he had been continuing in possession of the same since then. The respondent purchased the said room by virtue of a registered sale deed bearing No. 1211/13 of S.R.O., Chadayamangalam. The factum of purchase was intimated to the revision petitioner on 6.5.2013 and had demanded the payment of rent to him from April 2013 onwards. The revision petitioner had attorned to the respondent and paid the rent to him till December, 2013. Thereafter, he kept the rent in arrears without any reasonable cause. Then a need also arose for the landlord to start a business in ready made garments. The petition schedule room being the only one belonging to him, he thought it fit to get it vacated. Accordingly, a legal notice demanding arrears of rent and vacant surrender of the tenanted premises on the reason of own occupation was sent on 7.3.2014 which was not acceded to by the revision petitioner. Therefore, the respondent approached the Rent Control Court/Additional Munsiff-II, Kozhikode by filing the petition seeking eviction as R.C.P. No. 134/2014 on the twin grounds as aforesaid. 4. The revision petitioner/tenant filed objection denying the pleas regarding arrears of rent and bona-fide need. According to him, rent was paid directly to the landlord till December 2013 and thereafter to the respondent's son till October, 2014 as instructed by him and therefore, rent is not in arrears. The further contention was that the respondent being an affluent person, there is absolutely no requirement for him to start a business in readymade garments and the need alleged is not a bona fide one. The further contention was that the respondent being an affluent person, there is absolutely no requirement for him to start a business in readymade garments and the need alleged is not a bona fide one. Yet other contentions were also raised to the effect that the respondent has other rooms in his vacant possession and petition schedule room is not at all a convenient room to suit his proposed business and that the revision petitioner is mainly depending on the income derived by him from the business conducted in the tenanted premises and no suitable rooms are available in the locality to shift his business. Raising the contentions as aforesaid, the revision petitioner urged for dismissal of the R.C.P. 5. R.C.P. No. 134/2014 was tried by the Rent Control Court. The respondent mounted the box and deposed as PW1. Exts.A1 to A3, A3(a) and A3(b) were also marked on his side. On the side of the revision petitioner, the tenant himself mounted the box and deposed as RW1. Exts.B1 to B10 were also marked. 6. The evidence was appreciated by the Rent Control Court and found that there was arrears of rent as claimed by the respondent and also that the need projected by the landlord to start a business on readymade garments is a bona fide one and accordingly, eviction was ordered under Sections 11(2)(b) and 11(3) of the Act. 7. The aggrieved revision petitioner has approached the Rent Control Appellate Authority/Additional District Court-IV, Kozhikode in R.C.A.No.125/2016 and the appellate authority, on its appreciation of evidence, found both the grounds of arrears of rent and bona fide need sustainable ones and accordingly, affirmed the findings of the Rent Control Court and the order of eviction passed on the twin grounds. 8. Against the concurrent findings, the aggrieved tenant has approached this Court in revision. For the sake of convenience, the parties to this revision are referred to as 'the landlord' and 'the tenant'. 9. Sri. V.N. Ramesan Nambisan, the learned counsel advanced arguments on behalf of the tenant mainly on three grounds as follows:- 1. Exts.B1 to B10 are the receipts issued by the son of the landlord upon payment of rent to him by the tenant and those would evidence payment of rent for the period from March 2014 to December 2014. 9. Sri. V.N. Ramesan Nambisan, the learned counsel advanced arguments on behalf of the tenant mainly on three grounds as follows:- 1. Exts.B1 to B10 are the receipts issued by the son of the landlord upon payment of rent to him by the tenant and those would evidence payment of rent for the period from March 2014 to December 2014. Had those been properly appreciated by the authorities below a finding that rent was in arrears ought not to have been arrived at. ii. In the affidavit filed in lieu of chief examination and while being cross-examined as RW1, the definite case of the tenant was that suitable rooms to accommodate his business are not available in the locality as the rent prevailing in the locality is not affordable to him. He has also stated that the tenanted premises in view of the larger area is being used by him for demonstrating the electrical items and in the other rooms, sale is being conducted and therefore, without those rooms, he would not be able to conduct his business. According to him, in view of the facts projected by him while tendering oral evidence to establish the disadvantages he would have to bear on an order of eviction being passed against him, the court ought not to have found the bona fide need projected by the landlord, a meritorious one. According to him, the settled position of law was that the need of the landlord is projected as a bona fide one, it must be tested with reality and cannot be a ruse to evict the tenant. According to him, it is improper for a court to order eviction so as to oust a tenant who then would be in a more disadvantageous position compared to the landlord. According to him, the court ought to have found the claim of the landlord for the tenanted premises as a mischievous one by taking due consideration of the disadvantages that would possibly be arisen on such order of eviction being granted in favour of the landlord. 10. In our pursuit to appreciate the grounds projected by the tenant as above, we had dealt with the entire evidence on record. It is pertinent to note that the landlord-tenant relationship and the rate of monthly rent of Rs. 3000/- are not in dispute. 10. In our pursuit to appreciate the grounds projected by the tenant as above, we had dealt with the entire evidence on record. It is pertinent to note that the landlord-tenant relationship and the rate of monthly rent of Rs. 3000/- are not in dispute. The plea of the landlord in the R.C.P. was that rent was paid till 31.12.2013 and defaulted from 1.1.2014. Notice was sent by him intimating the default to the tenant on 7.3.2014. This was out-rightly denied by the tenant contending in his counter affidavit filed in the R.C.P. that rent was paid by him till November, 2014. In his affidavit filed in lieu of chief examination, he had contended that rent was paid till December 2014. In the counter statement, his specific contention was that the landlord had collected monthly rent from him including the rent for the month of December 2013 personally. In the affidavit filed in lieu of chief examination, he contended specifically that rent was paid by him to landlord's son for the period from March 2014 till December 2014 as instructed by the landlord. 11. Having noticed inconsistency in the statements so tendered by the tenant at various levels of the proceedings, the Rent Control Court arrived at the conclusion that rent has been defaulted by the tenant for the period from 1.1.2014 till 7.3.2014, the date on which the rent was claimed as defaulted by the landlord through the legal notice and accordingly, ordered eviction under Section 11(2)(b) of the Act. 12. The grievance of the tenant was that, Exts.B1 to B10, which are the receipts evidencing payment by him of monthly rent for the period to the landlord's son, being very crucial for the adjudication in the matter in issue, though received by the court in evidence, was not considered in the proper perspective. The Rent Control Court's observation in the matter is relevant. The tenant though received the legal notice demanding rent issued by the landlord, without sending any reply notice had resorted to make the payment of rent continuously to the son of the landlord. According to the landlord, it is quite a difficult matter for it to swallow. Whether the act of effectuating payment on receiving Ext. The tenant though received the legal notice demanding rent issued by the landlord, without sending any reply notice had resorted to make the payment of rent continuously to the son of the landlord. According to the landlord, it is quite a difficult matter for it to swallow. Whether the act of effectuating payment on receiving Ext. A3 notice apprising him of the defaults and cautioning him that if he did not pay the defaulted sum of rent, within a period of 15 days' time, legal action would be resorted to, is a practice sustainable in law, is necessary to be dealt with. For that, an understanding of the law applicable on the point is relevant and therefore, is extracted hereinbelow:- “Sec.11(2)(a) a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. (b) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him:” Provided that an application under this subsection shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six percent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. The proviso to Section 11(2)(b) needs reiteration as it is crucial in the case on hand. The proviso to Section 11(2)(b) needs reiteration as it is crucial in the case on hand. “Provided that an application under this subsection shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six percent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof.” 13. Therefore, it is unambiguously clear that preferring of an application by the landlord seeking eviction under Section 11(2) (b) precedes the issuance of a notice by the landlord demanding the arrears of rent from the tenant and granting 15 days' time for him to deposit the arrears. It is a mandatory requirement under the Act. It is not an ordinary notice that is mandated by the provision, but a registered notice addressed to the tenant and it must have been stated therein the particulars as to the date from which the payment of rent was defaulted and rent accumulates as arrears, so as to make the tenant apprise of the actual sum due from him and to enable him to avoid the legal action, by making the payment or tendering the same together with interest at the rate of 6% per annum and postal charges incurred for sending notice as envisaged by the Act. Fifteen days' time is provided by the provision and the same would only start from the date on which the notice was served upon the tenant. Therefore, it is the burden of the landlord under the proviso to Section 11(2)(b) to establish that the registered notice addressed to the tenant was actually received by him and that he had been afforded with 15 days' time from the date on which notice was actually served upon him to effectuate the payment together with interest at the rate of 6% per annum and postal charges incurred by him. Therefore, prior to preferring of an application, the landlord must comply with the statutory mandate of serving a notice on the tenant and on failure to do so by the landlord, undoubtedly, he would be disentitled to apply for eviction under Section 11(2)(b) of the Act. Therefore, prior to preferring of an application, the landlord must comply with the statutory mandate of serving a notice on the tenant and on failure to do so by the landlord, undoubtedly, he would be disentitled to apply for eviction under Section 11(2)(b) of the Act. The proviso is thus intended to protect tenants, who are not willful defaulters of rent or those tenants, who are not wilful but prevented by sufficient unavoidable reasons from making the payment of rent in time. Though wilful defaulters, the tenants may opt to pay rent on cautioning them about the legal consequences likely to follow from such failure. Therefore, a notice is required to be served by the Act solely to alert the tenants and to avoid unnecessary consequences being faced by them on account of the landlord resorting to the legally available remedies. What is relevant to be communicated by a notice as contemplated under the proviso to clause (b) of Sub-section(2) of Section 11 is the date on which the payment of rent was defaulted firstly. What is intended by service of notice is to communicate the tenant that rent was defaulted by him from a particular date. Therefore, if the tenant opts to make the payment of the entire arrears of rent from the date on which the default was informed as started till the date of notice, together with interest at the rate of 6% per annum and postal charges incurred by the landlord for issuing the registered notice to the tenant, or if the payment was tendered within the statutorily prescribed time of 15 days, then the landlord would not be entitled to apply for eviction under Section 11(2)(b) of the Act. Or in other words, the cause of action for applying for an order of eviction under Section 11(2)(b) would only accrue to the landlord on his failure to pay or tender the arrears of rent due from him to the landlord, on the passage of time of 15 days' time from the date on which the registered notice was served on the tenant. Therefore, if R.C.P. is filed by the landlord without registered notice being served on the tenant and without waiting for the 15 days' time provided by the Act to make or tender the payment, the Rent Control Court is empowered to avoid jurisdiction to entertain the application seeking eviction on the ground of arrears of rent. Therefore, for empowering the court to entertain an application under Section 11(2)(b), the landlord must be able to convince the court that he has a cause of action and that could be achieved only by producing relevant materials to ensure effective service of the registered notice and passage of 15 days' time without any response being made by the tenant either by paying the entire arrears of rent, interest accrued thereon at the rate of 6% per annum and the postal charges or tendering of the sums as aforesaid. 14. In the case on hand, the specific plea of the landlord was that rent was defaulted and kept in arrears by the tenant without any reasonable cause from January 2014. There was an outright denial of this plea from the tenant. According to the tenant, rent was paid by him directly to the landlord till December, 2013 and for the succeeding months, to his son Sri. Mohammed Anas as requested by the landlord. Therefore, it is exposed from the plea of the tenant that there was no default in payment of rent by him as rent was paid for the period from December 2013 till October 2014 either directly to the landlord or to the landlord's son as requested by him. In view of the rival pleas already put forth as above, the Rent Control Court framed the following issue for consideration :- “Whether the respondent has kept rent of petition schedule room in arrears?” 15. While venturing to decide the issue, the Rent Control Court noticed that in the counter statement filed in the R.C.P., the tenant had taken a contention that he had paid rent till November, 2014. In the affidavit filed in lieu of Chief Examination, the tenant had sworn that the rent was paid till December, 2014. While venturing to decide the issue, the Rent Control Court noticed that in the counter statement filed in the R.C.P., the tenant had taken a contention that he had paid rent till November, 2014. In the affidavit filed in lieu of Chief Examination, the tenant had sworn that the rent was paid till December, 2014. The contention of the tenant in the counter statement filed in the R.C.P. was that rent was collected by the landlord from him for the month of December 2013 also and what was sworn to in the affidavit filed in lieu of Chief Examination was that rent was paid by him for the period from March to December, 2014 to the landlord's son as requested by him. Exts.B1 to B10 are also produced and got marked by him in evidence claiming those as receipts evidencing payment of rent to the son of the landlord. Under Section 11(2)(b), the tenant would only be liable to pay arrears of rent due up to the date on which registered notice was sent to him under the proviso to clause (b) of sub-section(2) of Section 11 of the Act. Therefore, the period for which the tenant is liable to make or tender payment would be the period from 1.1.2014 till 7.3.2014. The Rent Control Court found on scrutiny of Exts.B2 to B10 that those were receipts allegedly issued by the landlord after 7.3.2014, the date on which Ext.A3 registered notice was sent to the tenant. 16. The sole ground taken by the tenant, who is the revision petitioner before us was that the receipts of rent produced by him as Exts.B1 to B10 in the R.C.P. were misread by the Rent Control Court and the improper appreciation of the same impacted in the order of eviction, being passed against him. According to him, the appellate authority had also gone wrong in appreciation of Exts.B1 to B10 and thus arrived at the perverse finding that rent was in arrears and therefore, interference in exercise of revisional jurisdiction under Section 20 of the Act, is warranted. 17. In the backdrop, we made an anxious consideration of the documentary evidence let in by the tenant as Exts.B1 to B10 to see the manner in which those had been appreciated by the authorities below. 18. 17. In the backdrop, we made an anxious consideration of the documentary evidence let in by the tenant as Exts.B1 to B10 to see the manner in which those had been appreciated by the authorities below. 18. A glance at Exts.B1 to B10 reveals that those are nothing but letter heads of the firm run by the tenant, which contain writings and a signature allegedly that of the landlord's son. The tenant urged to treat those as receipts issued by him to the landlord. He thus pleaded to treat those as receipts evidencing his claim of payment of arrears of rent as demanded by the landlord through Ext.A3 registered notice, admittedly sent to him on 7.3.2014 and claiming which arrears, the legal proceedings was initiated by him as R.C.P.No.134/2014. It is pertinent in the circumstances to note that Exts.B1 to B10 bear dates succeeding to 7.3.2014 and for the reason itself, we have no hesitation to hold that those have only little bearing in the matter of adjudication of the issue on hand. As had already been stated, the demand of the landlord in Ext.A3 notice was for payment of rent from January, 2014 by a notice dated 7.3.2014. Therefore, the demand in Ext.A3 is confined to arrears of rent from 1.1.2014 till 7.3.2014, and therefore, the tenant is only liable to pay rent arrears till 7.3.2014, the date on which demand was made through Ext.A3. Whether rent for the period was paid by the tenant after receipt of Ext.A3 is for the tenant to establish by adducing cogent and satisfactory materials in evidence. There is no case for the tenant that the landlord has resorted to legal proceedings prematurely. Therefore, there cannot be any doubt that the R.C.P. was preferred by the landlord after the lapse of the 15 days' time, the Act requires the landlord to provide to the tenant to pay the arrears of rent with interest and postal charges. Therefore, there is absolutely no reason for the tenant, who had availed the opportunity to pay the arrears of rent along with interest and postal charges within the 15 days' time after service of notice upon him, to contend that payments had been effected by him subsequent to the receipt of the notice itself, to the landlord's son and Exts.B1 to B10 are receipts evidencing those payments. 19. 19. Another question relevant and mooted for consideration is whether Exts.B1 to B10 received in evidence are liable to be legally accepted in evidence. For that, the answer at the outset is on the negative. As we have already stated, those are writings in letter heads of the firm belonging to the tenant and the landlord has specifically denied the authority granted to his son to receive the rent on his behalf and to issue the receipts. It is also pertinent to note from the pleadings and evidence available that neither the landlord nor the tenant has a case that rent had been paid to the landlord's son on any previous occasions. Even the plea of the tenant in the counter statement was that the landlord had collected rent directly till the month of December, 2013. When mounted in the box to depose as RW1, the version of the tenant was that he had paid rent to the landlord's son from March 2014 till December, 2014. Therefore, with reference to the interregnum period covering the months of January and February, 2014, the tenant does not have a case that the payment of rent was made by him either directly to the landlord or to his son. Therefore, there is absolute want of evidence with regard to the payment of rent for the months of January and February, 2014. 20. In view of the outright denial of the landlord regarding the issuance of Exts.B1 to B10 by his son, who according to him was never authorised by him to collect rent on his behalf, the burden is on the tenant to establish that Exts.B1 to B10 are issued by the landlord's son on receiving rent for and on behalf of the landlord as authorised by him. Such evidence is not forthcoming from the tenant and therefore, he cannot be taken to have paid rent promptly to landlord's son as claimed by him. 21. The plea of the tenant that payment of rent during the disputed period was made by him to the landlord's son on his request seems to be strange for the following reasons also:- 1. Want of any case either for the landlord or for the tenant that the landlord had authorised his son for collection of rent from the tenant, for any period prior to the disputed period of default. 2. Want of any case either for the landlord or for the tenant that the landlord had authorised his son for collection of rent from the tenant, for any period prior to the disputed period of default. 2. Want of any unavoidable and specific reason for the landlord to authorise his son to collect the rent from the tenant in deviation from the normal practice of collecting rent personally, especially for the period for which, it was urged by the landlord as defaulted. 3. Failure of the tenant to respond to Ext.A3 notice intimating him that payment of rent was defaulted by him for the period stated therein. 22. It is not possible for a prudent man to swallow the plea of the tenant and rely blindly on Exts.B1 to B10 without the aforesaid three-fold doubtful circumstances being reasonably explained by the tenant. The court below, therefore, cannot be found fault with for not relying on Exts.B1 to B10. 23. When evidence adduced as Exts.B1 to B10 totally turned unreliable documents that the Rent Control Court and the Rent Control Appellate Authority concurrently arrived at a finding that arrears of rent exist and passed an order granting eviction under Section 11(2)(b) of the Act. The finding of the authorities below cannot be said to be the outcome of an improper and incorrect appreciation of those documentary evidence and therefore, the prayer for exercise of revisional jurisdiction is only to be declined. 24. The further contention advanced by the tenant was that while considering the bona fide need projected by the landlord, the authorities below failed to advert to the hardships highlighted by the tenant while being examined as RW1, that vacant rooms available in the locality, in view of the exorbitant rent are not affordable to him and that a room with equal space as the tenanted one was not available for him to shift his business thereto. According to the tenant, the tenanted premises incorporate a large room and a small one, used respectively for demonstrating the electrical goods and for sale of electrical goods and it would be possible for him to shift the business from the tenanted premises only if rooms having the same size and area are available in the locality. According to the tenant, the tenanted premises incorporate a large room and a small one, used respectively for demonstrating the electrical goods and for sale of electrical goods and it would be possible for him to shift the business from the tenanted premises only if rooms having the same size and area are available in the locality. According to him, the authorities below ought to have tested the bona fide need projected by the landlord with reality and having been appreciated the evidence without bearing that line of thought in mind, the appreciation is undoubtedly an improper one, erroneously exercised and accordingly, reversal of the order of eviction under Section 11(3) in exercise of the revisional jurisdiction is strictly called for in the matter. 25. We have no hesitation to hold that the ground projected is totally an irrelevant one for the court to be considered while adjudicating an application seeking eviction under Section 11(3) on the ground of bona fide need of the landlord or his dependents. 25. We have no hesitation to hold that the ground projected is totally an irrelevant one for the court to be considered while adjudicating an application seeking eviction under Section 11(3) on the ground of bona fide need of the landlord or his dependents. Sub-section (3) of Section 11 is apposite to be extracted in the context:- “Sec.11(3)- 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 bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument: Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.” 26. The legislature undoubtedly has taken care of the interest of the tenants while enacting the Act and therefore, that protection is afforded to them from being evicted illegally and arbitrarily. To ensure the intended protection that the Act casts the burden heavily on the landlord to establish the bona fide requirement. The legislature undoubtedly has taken care of the interest of the tenants while enacting the Act and therefore, that protection is afforded to them from being evicted illegally and arbitrarily. To ensure the intended protection that the Act casts the burden heavily on the landlord to establish the bona fide requirement. The landlord is entitled to get an order of eviction under Section 11(3) in his favour only when he satisfactorily discharges his burden of proving that the need projected by him is a bona fide one. 27. Section 11(3) incorporates in it four provisos to ensure protection to the tenants. Apart from that, the proviso under Section 11(17) also ensures protection to the tenant. Stated otherwise, the five provisos as aforesaid, act in restraint to the right of the landlord to get vacant possession of the building leased out by him, for own occupation or for the occupation of his dependent, despite the bona fide need projected is proved by him. 28. It is indisputable that in an application seeking eviction under Section 11(3), the landlord has to establish that the need of the vacant room projected by him for his own occupation or for the occupation of his dependents is a bona fide one. Therefore, the court in seizin of the petition seeking eviction has to see and satisfy from the evidence adduced by the landlord that he was very much determined to start the proposed business and therefore, something more than a mere wish or desire is there. On such satisfaction being arrived at, the court is empowered to order eviction under Section 11(3) provided the tenant was unsuccessful in establishing that the landlord without any special reasons, is not occupying the room vacantly available in his possession or that the business in the tenanted premises is the main source of income and that other suitable buildings are not available in the locality for him to shift his business. Therefore, the tenant would be saved from an order of eviction, despite the landlord establishing his bona fide need by cogent evidence, on successfully discharging the burden to prove the requirement under the 1st proviso or the twin requirements provided under both the limbs of the 2nd proviso to Section 11(3) of the Act. 29. Therefore, the tenant would be saved from an order of eviction, despite the landlord establishing his bona fide need by cogent evidence, on successfully discharging the burden to prove the requirement under the 1st proviso or the twin requirements provided under both the limbs of the 2nd proviso to Section 11(3) of the Act. 29. The court dealing with a petition seeking eviction under sub-section(3) of Section 11 is empowered to issue a direction to the tenant to surrender vacant possession of the tenanted premises to the landlord only when the landlord successfully establishes the bona fides in his need and on failure of the tenant to establish the requirements embodied in the first and the second proviso to sub-section (3) of Section 11. 30. Then the question is whether the reasons projected by the revision petitioners through grounds (C) and (D) in the revision petition are relevant in the matter of consideration of the Rent Control Court while dealing with an application seeking eviction on the ground of bona fide need. What are enumerated under grounds (C) and (D) are undoubtedly some hardships of the tenant likely to be faced by him on an order of eviction being passed against him under Section 11(3). 31. As discussed earlier, non-availability of suitable rooms in the locality is a factum the tenant is required to establish conjunctively with the factum of non-availability of sources of income, other than the business run by him in the tenanted premises, for being exempted from an order of eviction under the second proviso to that section. When the tenant successfully establishes the twin requirements of the second proviso conjunctively, despite the factum that the landlord had successfully established the bona fide need, the court will not direct him to surrender vacant possession of the tenanted premises under Section 11(3) of the Act. The Act mandates the court to abstain from issuing a direction to the tenant to surrender vacant possession, if the tenant is successful in establishing the twin conditions embodied in the second proviso. 32. The Act mandates the court to abstain from issuing a direction to the tenant to surrender vacant possession, if the tenant is successful in establishing the twin conditions embodied in the second proviso. 32. Bearing these aspects in mind, a scan of the evidence is done and we are totally convinced that the tenant though attempted to establish the twin conditions under the 2nd proviso for getting himself entitled to the protection it affords from being evicted, has thoroughly failed to establish the income he derived from the business conducted in the tenanted premises. He has also given evidence to the effect that he got retired from his profession as a teacher and is getting Rs. 20,000/- as pension. Pension is undoubtedly another source of income he was having to sustain his livelihood, apart from the business run in the tenanted premises and in such a circumstance, unknowingly of the income derived from the business run in the tenanted premises, a conclusion as to the main source of income is impossible to be arrived at. With regard to the non-availability of suitable buildings in the locality for shifting his business, absolutely no evidence was adduced from the side of the tenant. We are convinced on a scrutiny of the evidence on record that the tenant has thoroughly failed to discharge the burden under the second proviso to Section 11(3) of the Act. There is absolute want of evidence to establish the specific pleadings of the tenant in the counter statement that the landlord has a vacant room in his possession, so as to avail the protection from eviction under the first proviso to Section 11(3) of the Act. 33. Then the question that arises for further consideration is whether the hardships which the tenant is likely to face on an order of eviction being passed against him would have any impact while considering the bona fide need projected by the landlord. In the case on hand, the apprehension of the tenant was that if he is evicted, he will be prevented from conducting his business conveniently due to non-availability of rooms having the same size and area as the tenanted premises in the locality. In the case on hand, the apprehension of the tenant was that if he is evicted, he will be prevented from conducting his business conveniently due to non-availability of rooms having the same size and area as the tenanted premises in the locality. According to him, the tenanted premises consist of two rooms, one larger and the other smaller when compared to the first one, and the large room is convenient for him to conduct demonstrations and the other being of lesser area is convenient for the sale of goods with reference to which he is conducting business therein. What is contemplated by the first limb of second proviso is that the availability of a suitable vacant room in the locality for the tenant to shift his business. The first limb of second proviso does not say that the alternative room available must be of equal size and area as the tenanted premises. It only says that the vacant room available in the premises must be suitable for the tenant to accommodate his business. It is evidenced from the testimony of RW1 that he failed to make any enquiry as to the availability of any building in the locality and therefore, the order of eviction passed against him cannot be said to be vitiated, as canvassed by the tenant. What the legislature intends to protect by the provisos is to exempt the tenant from facing an order of eviction, in case of availability for the landlord of vacant rooms in his possession, non-availability of suitable rooms in the locality for the tenant to shift his business and the sustenance of the tenant mainly on the income from the tenanted premises. It was the hardship of a tenant who has been ordered to be evicted without being noticed the factum existing that the landlord has in his possession a vacant room or non-availability of other buildings in the locality or the dependency of the tenant mainly on the income of the business in the tenanted premises as his source of livelihood, that needs consideration under the provisos to Section 11(3) of the Act. The tenant cannot be heard to contend that his hardships have not been taken care of by the Rent Control Court and the Rent Control Appellate Authority, while passing the orders of eviction under Section 11(3) concurrently. The tenant cannot be heard to contend that his hardships have not been taken care of by the Rent Control Court and the Rent Control Appellate Authority, while passing the orders of eviction under Section 11(3) concurrently. A mere plea that buildings are not available in the locality would not suffice, lest, cogent evidence in that respect must be adduced by the tenant. Similarly evidence must also come on record from the side of the tenant to show that the main source of his income for livelihood is the business carried out in the tenanted premises. 34. It is true that in order to permit the tenant to project his hardships that are liable to be caused on an order of eviction being passed against him that the provisos have been incorporated under sub-section (3) of Section 11 of the Act. When the tenant thoroughly failed to adduce evidence to establish the provisos, he cannot plead later on that he was denied with opportunity to project his hardships. That would be all the more like seeking the benefit of the provisos without evidence being let in to fit his case within its ambit. 35. Then the short question that remains for consideration is whether the tenants' non-affordability to pay the exorbitant rent in respect of the rooms available in the locality is a matter to be dealt with while considering the bona fides in the needs projected by the landlord. Or in other words, while considering the second limb of the second proviso, what is to be considered is the availability of suitable rooms in the locality, and not the non-affordability of the tenant to avail those rooms, in view of the exhorbitancy in the rent. The tenant's financial incapacity to avail the suitable rooms available in the locality is not a matter of concern for the court, while dealing with the second proviso to Section 11(3) of the Act. The same hardships, the landlord, who is in dire necessity to start a business, and approached the court would also have to face, on an order of eviction being declined to him. The landlord in such cases has no other option than to take vacant rooms with exorbitant rate to satisfy his need. This hardship of the landlord undoubtedly would be of higher degree when compared to that of the tenant. The landlord in such cases has no other option than to take vacant rooms with exorbitant rate to satisfy his need. This hardship of the landlord undoubtedly would be of higher degree when compared to that of the tenant. Therefore, non-affordability to pay the rent is not a matter which assumes relevance in so far as the availability of suitable rooms is considered. 36. The landlord in the case in question by mounting the box has adduced evidence regarding his bona fide need of the building for his own occupation. He has also succeeded by adducing evidence that rent was in arrears and the entire defaulted sum was not deposited. The Rent Control Court had given a reasonable opportunity to the tenant to show cause against the application seeking eviction filed as R.C.P.No.134/2014 and being satisfied based on the evidence tendered by the landlord and tenant that the rent was found in arrears from the tenant to the landlord, the order of eviction was passed under Section 11(2)(b) of the Act. On a correct and proper appreciation of the evidence that the court has also arrived at a finding that the need projected by the landlord is a genuine and bona fide one and that the tenant is not entitled to avail protection from eviction on the ground of bona fide need either under both the provisos to Section 11(3) of the Act. Accordingly, an order of eviction was passed in favour of the landlord under Section 11(3) of the Act. The finding of the Rent Control Court was also confirmed by the Rent Control Appellate Authority by its judgment dated 7.11.2017, which is under challenge herein. The revision petitioner did not succeed in establishing that the findings arrived at by the authorities below are perverse or have been arrived at without consideration of the material evidence or is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, as is held by the Honourable Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh [2014(4) KLT 182 (SC)]. In the aforesaid circumstances, interference is totally uncalled for. Counsel for the revision petitioner as a last submission sought for the grant of some time to surrender vacant possession of the premises to the landlord. In the aforesaid circumstances, interference is totally uncalled for. Counsel for the revision petitioner as a last submission sought for the grant of some time to surrender vacant possession of the premises to the landlord. Taking note of the submissions so made, we feel it appropriate to grant some time for the tenant to surrender vacant possession of the building. The request is opposed by the counsel appearing for the respondent. However, considering the fact that the tenant requires time for identifying and taking on rent a suitable building to shift the business, we are inclined to grant time up to 30th September, 2018, but subject to the following conditions. In the result, it is ordered as follows:- (1) The Rent Control Revision fails and is accordingly, dismissed. No order is passed as to costs. (2) The revision petitioner/tenant is granted time up to 30th September, 2018 to surrender the vacant possession of the tenanted premises to the landlord on condition that he shall swear to an affidavit within a period of two weeks from the date of receipt of a copy of this order and file the same before the Rent Control Court/Additional Munsiff II, Kozhikode in R.C.P. No. 134/2014, unconditionally undertaking therein to surrender vacant possession of the premises to the landlord on or before the said date. It shall be a further condition for the grant of such time that the tenant shall pay all arrears of rent, if any, remaining unpaid and continue to pay the rent in respect of the premises without any delay or default, to the landlord until vacant possession is surrendered. If the tenant commits default in fulfilling any of the above conditions, he shall forfeit the benefit of the above order.