Kerala High Court
T.V.Babu vs Beena.K.P on 9 April, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
RCRev.No.180 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
RCREV. NO. 180 OF 2024
AGAINST THE JUDGMENT DATED 15.12.2023 IN RCA NO.3 OF
2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
KASARAGOD / II ADDITIONAL MACT, KASARAGODE ARISING OUT OF THE
ORDER DATED 04.12.2019 IN RCP NO.4 OF 2017 OF MUNSIFF COURT,
HOSDRUG
REVISION PETITIONER/APPELLANT/PETITIONER:
T.V.BABU
AGED 60 YEARS
'THUSHARA', AANIKKADI, PALA IN KODAKAD VILLAGE OF
HOSDURG TALUK, KASARAGOD DISTRICT. (REPRESENTED BY
PA HOLDER, BINDU BABU P V, AGED 49 YEARS,
W/O.T.V.BABU, ELECTION IDENTITY CARD NO.JWB1537331,
'THUSHARA', AANIKKADI, PALA IN KODAKAD VILLAGE OF
HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671315
BY ADVS.
ARUN KRISHNA DHAN
T.K.SANDEEP
ARJUN SREEDHAR
ALEX ABRAHAM
SWETHA R.
HARIKRISHNAN P.B.
GOWRI MENON
RCRev.No.180 of 2024
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RESPONDENT/RESPONDENT/RESPONDENT:
BEENA.K.P
AGED 46 YEARS
'SHIMATTY VASTHRALAYAM, NEAR CHERUVATHUR BUS STAND
IN CHERUVATHUR VILLAGE, HOSDURG TALUK, KASARAGOD
DISTRICT, PIN - 671313
BY ADV JAWAHAR JOSE
THIS RENT CONTROL REVISION HAVING COME UP FOR HEARING ON
02.04.2025, THE COURT ON 09.04.2025 PASSED THE FOLLOWING:
RCRev.No.180 of 2024
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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
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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
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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
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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
does the first proviso to Section 11(3) of
the Act insists the landlord to plead that
the buildings available in his possession
are not sufficient to meet his requirements.
10. In Dineshan Pillai P.B. v. Joseph @
Jose [2019 (3) KHC 206] a Division Bench of
this Court was dealing with a case in which
one of the contentions of the tenant was
that, the landlord has several other vacant
buildings of his own, in his possession, to
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start the proposed business. The Division
Bench noticed that, the pleadings are very
vague with respect to the first proviso to
Section 11(3) of the Act. It is stated that
the landlord has several other buildings. No
particular vacant room has been identified
or pointed out in the pleadings. The
Division Bench opined that, it is obligatory
on the part of the tenant to plead and prove
the identity of the vacant building in the
possession of the landlord. In the absence
of specific pleadings, disclosing the
identity of the vacant building in the
possession of the landlord, it can be said
that the tenant has not discharged the
initial burden of proof under the first
proviso to Section 11(3) of the Act.
xxxxxxxxxxx
13. In Ext.P2 counter, the tenant has
stated that the landlord and her husband
have several other vacant buildings in the
locality for starting a provision store. No
particular vacant room, allegedly in
possession of the landlord or her husband,
has been identified or pointed out in Ext.P2
counter filed in the RCPs. It is obligatory
on the part of the tenant to plead and prove
the identity of the vacant building in the
possession of the landlord, in order to
attract the first proviso to Section 11(3)
of the Act. Therefore, in the absence of
specific pleadings in Ext.P2 counter
disclosing the identity of any vacant
building in the possession of the landlord,
it can only be said that the tenant has not
discharged the initial burden of proof under
the first proviso to Section 11(3) of the
Act."
(Emphasis added)
The Court further held that unless the tenant
discloses the identity of the vacant buildings
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allegedly in the possession of the landlord, he could
not even be permitted to take out a commission for
local inspection.
5. The pleadings of the tenant in the present
case are almost identical. It is relevant to
reproduce paragraphs 6 and 8 of the counter filed by
the respondent:
"6. It is respectfully submitted that the
petition scheduled room is part of a huge
shopping complex, by name Thushara Shopping
Complex belonging to the petitioner. There
are three floors for the said building
including the basement. There are about 30
rooms in the said shopping complex out of
which the petition schedule room is situate
in the ground floor. The petitioner himself
is in possession of some portion of the said
building where he is conducting a super
market by name Thushara Super Market which is
being managed by the petitioner's son. The
petitioner is also conducting a business in
grocery in retail and wholesale in the same
building under the name and style "Thushara
Traders". The petitioner is employed under
the Government of Qatar and he is permanently
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there in connection with his employment.
Hence the entire business establishments at
Cheruvathur belonging to the petitioner are
managed by his son. Hence the contention that
the son of the petitioner has no other
avocation is absolutely incorrect.
8. There are many vacant rooms which are
suitable for computer business in the very
same building belonging to the petitioner,
where the petition schedule premises are
situate. The petitioner has inducted new
lessee in the building which is Vijaya Bank
after the sending of registered notice to the
respondent. The said rooms are more than
sufficient for accommodating the alleged
business projected in the petition. The
petitioner also has in his possession vacant
buildings at Chanadukkam near to his house."
(emphasis added)
The concurrent finding was rendered on the basis of
the above pleadings. The entire enquiry conducted by
the Rent Control Court was seemingly under the
assumption that it was the burden of the landlord to
prove that there were no vacant rooms in her
possession. At one point, the Rent Control Court even
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went on to hold that "So, the burden is upon the
petitioner to show that there are no vacant rooms
suitable for his purpose in his possession and that
even if there is any such room, he needs the petition
schedule room for special reasons. Here the
petitioner has not pleaded about the possession of
other rooms in the same building."
6. Both the authorities placed heavy reliance
on the extract of the building register from the
Grama Panchayath concerned, which shows that certain
rooms are in the possession of the landlord. Mere
production of a record from the local authority does
not relieve the burden of the tenant. It is well-
settled law that the admissibility of a document in
evidence and the proof of its contents or the truth
of the facts stated in it are entirely different and
distinct aspects. What is required to be proved by
the tenant to attract the first proviso to Section
11(3) of the Act is the physical existence of a
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vacant building in the possession of the landlord.
Even if it is noted in the register maintained by the
local authority that a particular building is in the
vacant possession of the landlord, that would not
amount to proof of the fact that the said building
was actually vacant and the same was in the
possession of the landlord. Such facts are to be
proved through direct evidence or in the other manner
permitted under the Indian Evidence Act/Bharatiya
Sakshya Adhiniyam.
7. Interestingly, in the present case, the
landlord took out a commission to show that rooms in
the shopping complex owned by him were not vacant.
However, the Rent Control Court did not act upon the
said evidence on the ground that the Commissioner did
not inspect all the rooms in the said complex.
8. Both the authorities gave much emphasis on
the admission made by PW1, the wife of the landlord,
that she is in possession of certain other shop rooms
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in the shopping complex other than the rooms in which
a supermarket is being run by the landlord. However,
we find no reason to uphold this finding. PW1
specifically stated in the chief affidavit as well as
during cross-examination that she and her husband are
conducting a supermarket and a trading business in
the said shopping complex in different rooms and the
licence for the said business was taken in her name.
The said statement has no relevance in the present
enquiry as the burden of the tenant is to show that
the landlord was in vacant possession of another
building/rooms of his own, at the time when the
eviction petition was filed.
9. In view of the above discussion, we find
sufficient reasons to interfere with the concurrent
finding of facts entered into by both the
authorities. As it is concurrently found that the
landlord bona fide needs the vacant possession of the
tenanted premises, the eviction petition is only to
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be allowed, as the tenant failed to prove that there
are no other vacant buildings in the nearby locality
to shift her business.
10. In the result, the revision petition is
allowed. The petitioner is entitled to get vacant
possession of the petition-scheduled building as per
Section 11(3) of the Act. However, we grant six
months' time to the tenant to vacate the said
premises on the following conditions:
(i) The respondent shall file an
affidavit before the Rent Control Court
or the Execution Court, as the case may
be, within two weeks from the date of
receipt of a certified copy of this
order, expressing an unconditional
undertaking that she will surrender
vacant possession of the petition-
scheduled shop room to the petitioner-
landlord within six months from the date
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of this order and that, she shall not
induct third parties into possession of
the petition-scheduled shop room.
(ii) The respondent shall deposit the
entire arrears of rent as on date, if
any, before the Rent Control Court or
the Execution Court, as the case may be,
within one month from the date of
receipt of a certified copy of this
order, and shall continue to pay rent
for every succeeding month, without any
default;
(iii) Needless to say, failing to comply
with any one of the conditions stated
above, the time limit granted by this
order to surrender vacant possession of
the petition-scheduled shop room will
stand cancelled automatically, and the
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landlord will be at liberty to proceed
with the execution of the order of
eviction.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
sv
