Burden of proof in eviction cases lies with both parties to establish arrears or genuine need.

ORDER :

1. The tenant/revision petitioner is aggrieved by the judgment in RCA No. 1/2019 on the files of the Rent Control Appellate Authority (District Judge), Kalpetta, Wayanad, that confirmed the order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’) passed by the Rent Control Court (Munsiff/Magistrate), Sulthanbathery, Wayanad in RCP No. 18/2014.

2. The respondent/landlord herein filed the petition for eviction under Sections 11(2)(b) and 11(3) of the Act, contending that the petition schedule room was let out to the tenant in the year 2001 and by the agreement arrived at on 01.10.2007, the monthly rent was fixed at Rs.8,260/- for five years. The landlord also contended that the rent was later enhanced to Rs.30,000/- from 01.04.2009, and the rent from 30.09.2009 is in arrears and prayed for eviction under Section 11(2)(b) of the Act. The landlord further contended that the son of the petitioner, one Sabu, was employed temporarily in a petrol bunk, and as he is currently unemployed and depending on the petitioner for his livelihood, the petitioner is in bona fide need of the petition scheduled room for commencing business for his son.

3. The tenant resisted the rent control petition contending that the room in question was rented out to him from 01.10.2007 for Rs.8,260/- as rent, and there was no agreement for any enhancement after that. The allegation that the rent is in arrears from 01.10.2009 was denied. The plea of the bona-fide need was also denied by the tenant, who also contended that there are several shop rooms in the possession of the landlord. The tenant also pleaded the protection of the first and the second provisos to Section 11(3) of the Act.

4. On behalf of the landlord, PWs 1 and 2 were examined, and Exts.A1 to A13 series were marked. The tenant examined himself as RW1 and marked Exts.B1 to B5(b). The rent control court found that the petitioner’s son was employed in a petrol bunk in Pulpally. He is not presently employed and held that PW1 is in bona fide need of the petition scheduled shop room for starting a business for his son. The trial court also considered the evidence of PW1 that his son required 2000 sq. ft. space for starting the business and rejected the contention of the tenant that the exact nature of the proposed business was not pleaded in the rent control petition. Thus, analysing the evidence of PWs 1 and 2 and also relying on the principles of laws laid down in Narayani vs. District Judge, 1991 (1) KLT 646, Kochappan Pilla vs. Chellappan Nair, 1976 KLT 1, Abdulla Haji vs. Chandran, 2009 (2) KLT SN 4 (C. No. 5) and Kurian vs. Prathapan, ILR 1992 (2) Ker 500 the trial court concluded that the need asserted by the petitioner stands proved.

5. With respect to the first proviso, though the tenant contended that though rooms in the cellar portion of a building are available, relying on Ext.C1 commission report, it was found that those rooms did not have proper access, and thus, there was no vacant suitable room in the possession of the landlord to start the proposed business. In arriving at that conclusion, the trial court relied on the evidence of the tenant when he deposed to a specific question with regard to the availability of the vacant rooms in the building by stating that he was not aware of those matters. Accordingly, the trial court found that a reading of the above answers really showed that the tenant was not aware of the vacant shop rooms in the building. The trial court also considered the aspect of the second proviso, and it was found that the evidence of the tenant clearly showed that the tenant had income other than from the business carried on in the petition schedule room and, therefore, he failed to discharge the burden that he is living solely out of the income derived from the business conducted in the petition schedule shop rooms. The evidence of RW1 was relied on to come to such a conclusion. Regarding the second l