The burden of proof in eviction claims under Section 11(3) lies with the tenant to demonstrate the availability of alternate accommodations.

A.Muhamed Mustaque, J.

The issue in this Rent Control Revision revolves around the burden of proof to disentitle the landlords' claim for eviction under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The landlords sought eviction under (3) of the Act to start a retail bakery business. The landlords are two brothers, along with the son of the second landlord, who is the second petitioner in the Rent Control Petition. The Rent Controller assessed the bona fide need and found that the landlords are entitled to eviction. No much argument appears to have been raised before the Rent Controller regarding the first proviso, though the tenant attempted to establish that the Rent Control Petition under (3) of the Act is hit by the first proviso. The first proviso states that the landlords are not entitled to eviction under (3) of the Act, if they are already in possession of a suitable building in the locality. The question of suitability is essentially a question of fact and would necessarily arise based on the facts disclosed in the case. There may be circumstances where the landlords suppress the fact of possessing another building, and although such suppression may not result in the invocation of the first proviso to (3) of the Act, it may have an impact on the bona fides of the claim for eviction under (3) of the Act.

2. In this case, the landlords pleaded that the two rooms forming the petition-schedule building are owned by them as part of a row of buildings in their co-ownership. The co-ownership consists of nine co-owners.

3. The tenant entered appearance and contended that the landlords are in possession of a large number of buildings in and around Kuttiyadi town, where the petition-schedule building is located. It is to be noted that the tenant did not specifically identify the buildings stated to be in their possession.

4. One of the landlords was examined, and in cross-

examination, he stated that Room No.181 on the upstairs portion was earlier occupied by the KDC Bank and was later let out to Muthoot Finance. Thereafter, it was leased for running a hotel by the name 'Swadeshi Hotel'. It was specifically put to him whether this letting occurred after 2012 June, to which he responded that it was much earlier. The Rent Control Petition was filed in the year

2011. In the chief examination, the tenant stated that the landlord obtained a building just before the institution of the Rent Control Petition and had let it out to a tenant. This means that, even according to the tenant's own case, the building is presently in the occupation of a third party. The tenant also produced information obtained under the Right to Information Act, indicating that no licence had been obtained in respect of the said building. Anyway, even on the tenant's admission, the building had already been let out. The question, therefore, is whether it was a vacant building. In the absence of any specific plea by the tenant that Room No.181 was available to the landlords at the time of filing the petition, it was not incumbent upon the landlords to state special reasons for not occupying the same. The tenant had not stated in the counter that the building was let out after the Rent Control petition was filed. The tenant having failed to prove that the building was available at the time of filing the Rent Control Petition, the burden does not shift to the landlords to furnish special reasons for non-occupation. Apparently, on a wrong legal understanding of the issue, the order of eviction passed by the Rent Controller was overturned by the Appellate Authority, on the ground that the landlord had failed to s