A tenant must provide substantial evidence to establish eligibility for protections under the second proviso to Section 11 of the Rent Control Act.

O R D E R

Pius C. Kuriakose, J.

The landlords are in revision. They are aggrieved by the judgment of the learned Appellate Authority dismissing the Rent Control Petition filed by them on the ground under Section 11(3) on the basis of a finding that the tenant/respondent is entitled for the protection of the second proviso to Sub section (3) of Section 11.

2. The finding that the need projected by the landlords is bonafide has become final. We confirm that finding. The learned Rent Control Court in the first instance held that the tenant does not satisfy the first ingredient of the 2nd proviso to Sub Section (3) of Section 11. This finding was entered by the Rent Control Court on the reasoning that the tenant did not produce the accounts pertaining to the business that was carried on in the petition schedule building. The court also noticed that it was in evidence that the tenant was having 10 cents of land whereon 10 yielding coconut trees were standing. According to the Rent Control Court it was the tenant's burden to show that the income that he derived from the tenanted premises, accounts for his main source of livelihood. The learned Appellate Authority under the impugned judgment has taken the view that when it was clear that the only other additional source of income of the tenant was the 10 coconut trees. It is a matter for easy inference that the main source for the tenant's livelihood is the welding workshop business carried on by him in the tenanted premises.

3. One of the prominent arguments addressed before us by Sri.T.G.Rajendran, the learned counsel for the revision petitioner was that the learned Appellate Authority ought not to have vacated the finding entered by the Rent Control Court in favour of the landlords regarding the first limb of the 2nd proviso on the basis of the appeal filed by the landlords. But on this argument Sri.B.Krishnan, the learned counsel for the respondent/tenant has fairly a convincing answer. The answer is that as the ultimate decision of the court was in favour of the tenant, the tenant could have supported the decision of the court even without filing a separate appeal or memorandum of the courts objections on the principles under Rule 22 of Order 41 CPC. We are therefore, not prepared to blame the learned Appellate Authority for having examined the correctness of the Rent Control Court's finding in the context of 1st proviso to Sub section (3) of Section 11. The only and the important question which arises for decision is whether the decision of the learned Appellate Authority that the tenant is entitled for the protection of 2nd proviso to Sub section (3) of Section 11 is legal, regular or proper. Having scanned the judgment of the learned Appellate Authority and having considered the submissions addressed before us by Sri.T.G.Rajendran and Sri.B.Krishnan and having kept in mind binding judicial precedents governing the issue such as the judgment of the Full Bench decision in Francis v. Sreedevi Varassiar [2003(2) KLT 230 (F.B.)] and the decision in Kunhamma v. Akkali Purushothaman [2007(3) KLT 599 SC], we feel that the consideration of the question whether the tenant is entitled for the protection of 2nd proviso to Sub Section (3) of Section 11 by the learned Appellate Authority was not proper. It appears to us that the learned Appellate Authority did not keep in mind the binding judicial precedents such as the judgment of the Full Bench in Sreedevi Varassiar's case which in clear terms lay down that the burden to show that the tenant satisfies both the ingredients of the 2nd proviso to Sub section (3) of Section 11 by adducing the best evidence is on the tenant himself. We however are not inclined to decide the issue finally. The matter needs a second look at the hands of the Rent Control Court.

4. We notice yet another aspect of the matter. The monthly rent of Rs.300/- which is being paid by the respondent to the revision petitioners for the tenanted building where the welding wor