A tenant must prove the absence of alternative suitable accommodation to benefit from Section 11(3) provisos in eviction cases.

O R D E R

Antony Dominic, J.

The tenant is the revision petitioner. RCP No.28/12 was filed by the respondent landlord seeking eviction of the petitioner from the tenanted premises urging ground under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act.

2. According to the landlord, he wanted vacant possession of the tenanted premises for the occupation of his son, who wanted to start a spare parts shop. The tenant entered appearance and contested the petition disputing the bona fide need urged by the landlord and also claiming the benefit of the provisos to Section 11 (3) of the Act. The landlord and his son were examined as PW1 and PW2 and the tenant was examined as RW1. Exts.A1 and B1 were also marked by both sides. The Rent Control Court by its order dated 5th of June, 2013 allowed eviction as prayed for by the landlord. This order was challenged before the Rent Control Appellate Authority in RCA No.67/13 filed by the tenant. The Rent Control Appellate Authority by its judgment dated 8th of August, 2014 dismissed the petition. It is aggrieved by these orders, the tenant has filed this revision petition.

3. We heard the learned counsel for the tenant and also the learned senior counsel appearing for the respondent landlord.

4. In so far as the bona fide need urged by the landlord is concerned, the landlord and his son have testified before the Rent Control Court about the decision of PW2, the son of the landlord, to start a spare parts business in the premises in question. Although they were subjected to detailed cross examination on behalf of the tenant, nothing could be brought out to discredit their testimony. In such circumstances, their evidence have been accepted concurrently by the Trial Court and the Appellate Court and we do not find any vitiating reason to upset this finding of the courts below. In the result, we do not find any reason to disagree with the view taken by the lower courts.

5. Before us, the contention raised by the learned counsel for the petitioner tenant is that the landlord is having other rooms in his possession. This contention was raised mainly referring to the evidence of PW1 and PW2 and Ext.A1, the assessment register of Thamarasserry Grama Panchayat. However, both courts have rightly found that the evidence available in the case does not lead to a conclusive proof to the case of the tenant that the landlord is in possession of other premises pleaded by the tenant. But, in spite of it, when this plea was reiterated before us and when the landlord answered that two of the premises mentioned by the tenant were residential premises, in order to resolve that factual controversy, this Court by order dated 30th of January, 2015 appointed an Advocate Commissioner to inspect the premises and to make a report. Accordingly, report has been received, which also confirms the case canvassed by the landlord.

6. In the above circumstances, we cannot accept the case of the tenant that the landlord is in possession of other rooms and that therefore, in the absence of any special reasons as contemplated under the first proviso to Section 11(3), eviction cannot be ordered.

7. In so far as the second proviso to Section 11(3) is concerned, the tenant can take advantage of the said proviso only if the tenant leads evidence and proves that he is entitled to the benefit thereof. However, in so far as this case is concerned, both courts have concurrently found that though the tenant has proved the first ingredient of the second proviso namely that he is mainly depending on the income from the business for his livelihood, he has failed in proving the second ingredient of the proviso namely that there are no other suitable rooms available in the locality.

This finding also does not, in our view, merit any interference.

8. RCR is dismissed.

Be that as it may, having regard to the fact that the tenant is an Authorised Ration Dealer and it is for that purpose the tenanted room is being used, we are inclined to allow