A tenant cannot claim the benefit under Section 11(3) if alternative accommodation exists in the locality, even if it's not in immediate vicinity.

O R D E R

Ajithkumar, J.

The respondent-tenant in R.C.P.No.1 of 2007 on the file of the Rent Control Court (Munsiff), Perambra, is the revision petitioner. He challenges the judgment of the Appellate Authority (III Additional District Judge), Kozhikode in R.C.A.No.224 of 2017, whereby the order of eviction passed by the Rent Control Court under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 , has been confirmed.

2. This revision was admitted to file on 16.01.2019.

Execution of the order of eviction was stayed for one month initially. The order of stay was extended from time to time and is still in force.

3. On 01.03.2021, this revision petition was dismissed for non-prosecution. As per the order dated 26.05.2022 in M.J.C.No.36 of 2022, the revision was restored on file.

4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent.

5. The respondent filed R.C.P.No.1 of 2007 seeking eviction of the petitioner under Section 11 (3) of the Act. On 04.11.2007, the Rent Control Court after considering the evidence came on record, dismissed the R.C.P. An appeal under Section 18 (1)(b) of the Act was filed by the respondent challenging the said order. That appeal, R.C.A.No.8 of 2008, was dismissed by the Appellate Authority. R.C.Rev.No.241 of 2011 was filed by the respondent before this court. But the judgment dismissing the appeal was not interfered with. The respondent preferred Special Leave Petitions, which was granted by the Apex Court. In the ensued Civil appeal Nos.2665 and 2666 of 2017, the Apex court held that the need urged by the respondent was bona fide and the first proviso to (3) of the Act has no application. The first limb of the second proviso to (3) of the Act was found in favour of the petitioner. The matter was, however, remanded to the Rent Control Court with specific direction to take a fresh decision with respect to the second limb of the second proviso to (3) of the Act, after giving an opportunity to both sides to adduce fresh evidence.

6. The matter was, therefore, considered by the Rent Control Court again. Fresh evidence was recorded. The evidence now consists of the oral testimonies of PW1, RWs.1 to 4 and CW1. Documents are Exts.A1 to A8, B1 to B3(b) and C1 to C(f). The Rent Control Court after considering the said evidence in detail, concluded that the petitioner failed to establish the requirements of the second limb of the second proviso to Section 11 (3) of the Act. Resultantly, eviction was ordered. The petitioner preferred an appeal challenging the said order. In the appeal, R.C.A.No.224 of 2017, the Appellate Authority (Additional District Judge-III) Kozhikode, considered every item of evidence adduced by the parties with respect to the non-availability of alternative building in the locality. The Appellate Authority concurred with the finding of the Rent Control Court and declined to interfere with the order of eviction.

7. The learned counsel appearing for the petitioner would contend that the authorities below did not consider the evidence tendered by the petitioner in its proper perspective. The petitioner is conducting a hardware shop. Although a few rooms at distant parts of the town were pointed out by the respondent, none of them was suitable to accommodate a hardware business, but the courts below did not consider that aspect. Availability of a suitable building in the locality alone impede a tenant from claiming the benefit of the second proviso to Section 11 (3) of the Act. Although no vacant room in the locality where the petition schedule shop rooms are situated is pointed out, the courts below did not consider that pertinent aspect. Thus, the learned counsel for the petitioner would contend that the eviction ordered by the courts below is liable to be reversed.

8. The learned counsel appearing for the respondent, on the other hand, pointed out that CW1 located vacant rooms in more than five buildings in the n