Point of Law: 'Propriety' does not confer power upon High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of order impugned before it.

ORDER :

[Shoba Annamma Eapen, J.]

1. Concurrent orders of eviction of the revision petitioner/tenant under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short, 'the Act'), passed by the Rent Control Court, Kuthuparamba and the Rent Control Appellate Authority/ Addl.District Judge-IV, Thalassery are challenged in this Revision Petition.

2. The rent control petition was filed by the respondent-landlady claiming eviction under Section 11(2) (b) and 11(3) of the Act. The need urged by the landlady was to start a business in the petition schedule building by her husband, who retired from service. That claim was resisted by the tenant. The Rent Control Court, after deliberating upon the evidence adduced and on hearing both sides, found that the need urged by the landlady was bona fide and that the tenant is liable to be evicted. The tenant paid the entire rent arrears and hence no order was passed under Section 11(2)(b) of the Act. The challenge made by the petitioner to the order of eviction by filing an appeal before the Appellate Authority was not successful. That occasioned in filing this revision.

3. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent.

4. According to the learned counsel for the revision petitioner, both the authorities erred in granting eviction. The learned counsel appearing for the revision petitioner raised contentions that the need urged by the landlady lacks bonafides since the details of the proposed business are not stated in the petition and the husband of the landlady is not in a position to do any hard work since he had undergone a bypass surgery and also that the landlady had earlier filed rent control petition alleging bona fide need, which was dismissed. It was further contended that the non-examination of the landlady to prove the bona fideneed is fatal. It is submitted that the revision petitioner is entitled to the protection under the provisos to Section 11(3) of the Act.

5. Per Contra, the learned counsel appearing for the respondent/landlady, argued that the omission to specify the nature of the business in the petition is not the requirement of law and in Ext.A1 lawyer notice, it was specifically stated that the husband of the landlady intends to start stationery shop and during cross-examination, PW1 has clearly deposed that he intends to start stationery business. It was further submitted that the earlier rent control petition was filed in the year 1999 that she wanted to start a fancy shop and now there is change of circumstances since the husband of the landlady retired from service and is without any job. The landlady has filed the present petition for eviction in the year 2014, after 15 years. It was further contended that the need put forth was for the husband of the landlady to start a business and in order to prove the bonafides, the husband was examined as PW1. Hence, the non-examination of the landlady is not at all necessary. Further, it was contended that in order to claim the benefit of protection under the provisos to Section 11(3) of the Act, the burden is on the tenant which he failed to prove. Accordingly, the learned counsel for the respondent maintains that the eviction ordered by the Rent Control Court and concurred by the Appellate Authority is supported by sufficient evidence and in consonance with the settled legal principles.

6. The learned counsel for the revision petitioner submits that the non-disclosure of the nature of business proposed to be conducted in the rent control petition was deliberate and it was only intended to make a suitable nature of business during the trial to surprise the appellant.

7. On a perusal of Ext.A1 lawyer notice, it is seen that the landlady had specifically mentioned that the eviction sought is for her husband to start a stationery business. Hence the tenant cannot contend that he was taken by surprise at the time of trial.

8. The need put f