Sadasivan Pillai Ambadiveettil, Mazhukeer Keezhmuri Thiruvanvandoor Village vs Saramma Thomas Puthen Peedikayil, Keezhchermel Muri Chengannur Village-689121

Pius C. Kuriakose, J.—The tenant challenges in this revision the judgment of the Rent Control Appellate Authority confirming the order of eviction passed on the ground under sub Section 3 of Section 11. This case had a chequered career. The Rent Control Court and the Appellate Authority concurrently held that the landlady is not entitled for an order of eviction under sub Section 3 of Section 11. The above decision was taken on the basis of a finding that the need projected by the landlady was not bona fide. However, considering the revision filed by the landlady this Court reversed the findings of the Rent Control Court and the Appellate Authority and found that the need is bona fide. However, as findings had not been entered in the context of the tenant''s eligibility for the protection of the second proviso this Court remanded the RCA to the Rent Control Appellate Authority for entering findings regarding the tenant''s eligibility for the protection of the second proviso to sub Section 3 of Section 11. Under the impugned judgment the learned Appellate Authority found that the tenant who is a pensioner is not entitled for the protection of the second proviso. On the basis of that finding the Appellate Authority ordered eviction under sub Section 3 of Section 11.

In this revision filed u/s 20 various grounds have been raised assailing the judgment of the Appellate Authority. Sri. P.V. Chandramohan, the learned counsel for the revision petitioner addressed strenuous submissions before us on the basis of those grounds. It was submitted by Sri. Chandramohan that the finding that the need is bona fide is contrary to the evidence available on record. He submitted that at any rate the finding that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11 is incorrect. According to him, it had become evident that the tenant was depending mainly on the income which he derives from the business carried on in the tenanted premises for his livelihood and also that other suitable buildings are not available in the locality for the tenant to shift his business. According to the learned counsel the findings entered by the Appellate Authority in the context of second proviso to sub Section 3 of Section 11 are illegal, irregular and improper and liable to be vacated by us in revision.

The persuasiveness of Sri. Chandramohan notwithstanding, having scanned the judgment of the Appellate Authority as well as the order of this Court in RCR No. 360/10 (a copy of which was placed before us by Sri. Chandramohan himself), we are of the view that the finding that the need projected by the landlady is a bona fide one attained finality by the order in RCR.360/10. This Court remanded the RCA to the Appellate Authority only for entering findings regarding the tenant''s eligibility for the protection of the second proviso to sub Section 3 of Section 11. Having gone through the impugned judgment, we are of the view that the finding presently entered in favour of the landlord has been entered correctly keeping in mind the judgment of the Full Bench of this Court in Francis Vs. Sreedevi Varassiar, and the judgment of the Supreme Court in Kunhamma v. Akkali Purushothaman ( 2007 (3) KLT 99) which takes the view that the burden is that of the tenant to show that he satisfies both the ingredients of the second proviso to sub Section 3 of Section 11. Admittedly the income which the petitioner gets from the business that he is carrying on is not his sole means of livelihood. He is a pensioner. When it is shown that the tenant has more than one source of income, it is the tenant''s obligation to produce supportive evidence before the fact finding authorities under the statute and prove that the income from the business carried on by him in the tenanted premises accounts for his principal source of livelihood. The same is the position regarding the availability of suitable buildings in the locality. It has been found by the Appellate Authority that the evidence adduced by the tenant falls short of holding that the tenant has proved that he satisfies the second ingredient of the second proviso to sub Section 3 of Section 11. In short we do not find any illegality, irregularity or impropriety with the finding of the Appellate Authority. Revision necessarily has to fail and the same will stand dismissed.

After we passed the order Sri. Chandramohan submitted that at the time of entrustment the revision petitioner had paid a sum of Rs. 1,15,000/- to the respondent landlady as security and that the landlady in her evidence as PW1 admitted having received Rs. 1,15,000/- as security. He submitted that at any rate the revision petitioner should be given at least one year''s time to surrender the building. He requested that the time may be granted and orders be passed directing that delivery will be effected only after the sum of Rs. 1,15,000/- already paid by way of security is re-paid to the revision petitioner/tenant.

We feel that even though we have confirmed the order of eviction, notice can be issued to the respondent to decide on the extent of time to be granted and as to how the amount of Rs. 1 15,000/- admittedly received by the landlady can be paid back to the revision petitioner. Hence, issue urgent notice to the respondent to decide the above two points.