IMPORTANT POINTS:
• In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the respondent/tenant has not discharged the initial burden of proof under the 1st Proviso to S.11(3) of the Act.
• The pendency of a suit for realisation of arrears of rent or existence of a decree for arrears of rent does not preclude the landlord from instituting a Rent Control Petition, seeking an order of eviction on the ground that the tenant has not paid or offered arrears of rent for the same period.

K. Harilal, J.

(1). Does the pendency of a Civil Suit, seeking a decree for realisation of the arrears of rent or the existence of a decree for the same, preclude the Landlord from instituting a Rent Control Petition, seeking an order of eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, on the ground of arrears of rent, of the same period.

(2). Is it obligatory on the part of the tenant to identify and point out the vacant buildings in the possession of the Landlord, for giving special reason, for not occupying that building by the Landlord .

These are the questions that emerge for consideration in this Revision Petition.

2. The Revision Petitioner is the tenant in R.C.P.No.9/2012 of the Rent Control Court, Cherthala. The said Rent Control Petition was filed against him by the respondent herein, under S.11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’), seeking an order of eviction. (The parties are referred to as in the Rent Control Petition).

3. According to the petitioner, the rent was in arrears from 20.07.2005. Though he had sent statutory notice demanding payment of arrears, the respondent did not heed to the said notice and thereby, he is entitled to get an order of eviction under S.11(2)(b) of the Act. Further, the petitioner averred that the petitioner and tenant are occupying different rooms of the same building owned by him. He needs the petition schedule shop room for the expansion of his business, carrying on in the corner shop room of the building to which the petition schedule shop room also forms a part. He has no other shop room of his own in his possession, suitable for the expansion of the existing business. But, several other buildings are available in the same town to shift the respondent’s business from the tenanted premises. With the aforesaid averments, he prayed for eviction of the respondent under S.11(2)(b) and 11(3) of the Act.

4. The respondent resisted the claim for eviction under S.11(2)(b) of the Act, contending that the petitioner had instituted two civil suits claiming arrears of rent and both the suits were decreed and the decree amount is being paid by him. Therefore, for the very same amount, no Rent Control Petition can be filed under S.11(2)(b) of the Act . The existence of the decree for realisation of the arrears of rent precludes the petitioner/landlord from instituting the present Rent Control Petition under S.11(2)(b) of the Act on the ground of the same arrears of rent. As regards S.11(3) of the Act, he contended that the need projected is not bona fide and it is a pretext for eviction only. The petitioner has several other buildings of his own in his possession to expand his business. The income from the tenanted premises is the only source of his income. With the aforesaid contentions, he prayed for the dismissal of the Rent Control Petition.

5. Both parties adduced evidence on the aforesaid pleadings and after considering the evidence on record, the Rent Control Court passed an order of eviction under both grounds. In the appeal, the Appellate Authority also confirmed the order of eviction passed by the Rent Control Court.

6. Heard Shri.Julian Xavier, the learned counsel appearing for the Revision Petitioner.

7. The learned counsel for the respondent advanced the arguments contending that the petitioner himself had admitted that the respondent had paid certain amount to the petitioner, as arrears of rent, in execution of the decree passed in O.S.No.408/2006 and O.S.No.738/2008. According to the learned counsel for the respondent, no order of eviction could have been sought on the ground of non-payment of the amount covered by the aforesaid original suits. The Courts below have not considered the maintainability of the said claim, in view of the decree obtained in the original suits, O.S.No.408/2006 and O.S.No.738/2008. Secondly, the learned counsel for the respondent contended that t