IMPORTANT POINT
The tenant must specifically plead and prove the identity of vacant buildings in the landlord's possession to invoke the first proviso to Section 11(3) of the Act.

ORDER :

P. Krishna Kumar, J.

The landlord who filed an eviction petition under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (‘the Act’, for short) suffered an adverse finding by the Rent Control Court and the Rent Control Appellate Authority concurrently, is before us by invoking the revisional jurisdiction of this Court under the Act.

2. The contention of the landlord was that he bona fide needed the vacant possession of the shop room rented out to the tenant on 28.04.2006, for the occupation of his dependent son, for starting a computer-related business. Both the courts concurrently found that the need projected by the landlord was bona fide. However, they found that the landlord was in possession of certain other rooms in the shopping complex owned by him, which also housed the petition-scheduled shop room. It is also found that the landlord failed to show any special reasons for getting the eviction order, in view of the first proviso to Section 11(3) of the Act.

3. We have heard Sri.Arun Krishna Dhan, the learned counsel appearing for the petitioner and Sri.Jawahar Jose, the learned counsel appearing for the respondent.

4. Ordinarily, this Court will be very slow in interfering with the concurrent findings of fact entered into by the Rent Control Court and the Rent Control Appellate Authority, while invoking its power under Section 20 of the Act. However, in this case, when we analysed the impugned orders, it was found that the enquiry conducted by both the courts was completely misdirected. The burden of proof of establishing the basic elements of the first proviso to Section 11(3) of the Act is indisputably upon the tenant. Further, this Court in Kakkottakath Puthiyapurayil Muhammad Ali and Others v. Kakkottakath Puthiyarambath Mahamood and Others (2022 (4) KLT 221) held that it is obligatory on the part of the tenant to specifically plead and prove the identity of the vacant buildings in the possession of the landlord if he wants to get the advantage of the first proviso to Section 11(3) of the Act. The Court followed the earlier decision of the High Court of Kerala in Dineshan Pillai P.B. v. Joseph (2019 (3) KHC 206) while arriving at the above finding. The Court also observed that it is not incumbent upon the landlord to disclose in his pleadings the availability of other vacant buildings in his possession. It is beneficial to quote the relevant findings in the said decision:

“8. In Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21] the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under the first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that the landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of the premises.

9. In Vasantha Mallan, relying on the law laid down by the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading the availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. It is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor