Kuncheria vs K.A. Reyas and Another

Krishnan Unni, J.—The tenant has come up in revision challenging the concurrent orders of eviction passed by the Rent Controller and the Appellate Authority u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act,

The brief facts necessary for the purpose of revision may be stated as follows. The petition schedule property is a shop building in Changanachery Municipality, bearing No. 25/8. It was owned by one Pathumma Beevi who leased it to the tenant on a monthly rent of Rs. 50 on 8th June 1978 under Ext. A-3 for a period of one year. After the expiry of the said period, the rent was enhanced to Rs. 150. On 25th February 1983 Pathumma Beevi assigned the property to 2nd Petitioner as guardian of 1st Petitioner who was a minor at that time, under Ext, A-l. "First Petitioner is the son of 2nd petitioner. After the assignment the tenant was paying rent to 2nd Petitioner and the rent fell into arrears after March, 1991. The 1st Petitioner attained majority on 7th April 1993. On 23rd August 1993 he issued Ext. A-4 notice through his advocate claiming possession of the property to conduct a business of his own in Paints. The tenant sent Ext. B-3 reply alleging that it is only a ruse to evict him, that if he is evicted his main source of income will be lost and that there is no other accommodation available to shift his business. The petition was filed claiming eviction u/s 11(2)(b) arrears of rent, Section 11(3) bona fide need and Section 11(4)(ii) stating that the tenant has used the building in such a manner as to destroy or reduce its value or utility permanently.

Exts. A-l to A-9, B-l to B-3, C-l and C-1(a) were marked. P.Ws. 1 to 5 and C.P.Ws. 1 to 5 were examined. The Rent Controller on appreciation of evidence found that the tenant has kept the rent in arrears and that the landlord has proved his bona fide need to get possession of the property, and accordingly passed an order for eviction.

The tenant challenged the order of the Rent Controller in R.C.A. No. 43 of 1995 and the landlord filed a Cross Objection challenging the dismissal of the petition u/s 11(4)(ii) of the Act. The Rent Control Appellate Authority confirmed the findings of the Rent Controller and dismissed the appeal and the Cross Objection. Tenant has filed this revision.

The tenant has subsequently deposited the arrears of rent and only the eviction order u/s 11(3) of the Act survives for consideration in these proceedings. To put the facts briefly as revealed from the evidence, the petition schedule building was acquired by the 1st Petitioner in 1983 under Ext. A-l when he was a minor for which his mother 2nd Petitioner acted as guardian. He has studied only upto Pre-degree. It is hot disputed that the first Petitioner was not very successful in his studies and two attempts made by him in the Pre-degree examination met with failure. The 1st Petitioner belongs to a business community. His father, father''s brother and his own brothers are well off. His paternal uncle is employed in the Gulf countries. One of his elder brothers is employed in a bank and another brother is conducting some finance business. He is staying with his father who is conducting a factory. The bona fide need alleged by him is that he wanted to start a business in Paints and his paternal uncle has assured him financial support. The 1st Petitioner was aged about 19 years at the time of his examination. He attained majority only on 7th April 1993, claimed possession of the property under Ext. A-4 in August 1993 and filed the petition on 3rd March 1994. Both authorities below have considered the evidence and found that the bona fide need advanced by the 1st Petitioner is real, reasonable and acceptable. He has gone to the box and examined himself as P.W. 1 and gave evidence in support of his case. He has produced Exts. A-6 and A-7 letters received by him from two Companies, offering to help him in the business.

One of the grounds of attack to the claim advanced by the landlord was that it is only a pretext to evict the tenant, that the 1st Petitioner belongs to a very affluent family and is dependant on his father, that he can participate in his father''s business and factory management and that the claim put forward by him is not bona fide. The cross-examination of P.W. 2 was directed to establish that he had no previous business experience and therefore it is unlikely that he intends to start a business. No doubt, a major part of the cross-examination was misdirected for this purpose and the authorities below rightly did not fall for this argument, steered clear of it and found that the need of the 1st Petitioner was bona fide.

Another ground on which the claim was challenged was that even if the 1st Petitioner wanted to start a business, he had other rooms available for the purpose. Though an attempt was made to develop this case, it remained at the stage of suggestions put to P.W. 1 in cross-examination and the tenant was unable to prove that the landlord owned any another shop-building. The authorities below have discussed this aspect in detail and we do not find any reason to differ from the conclusion arrived at by them. Even before us, the learned Counsel for the revision Petitioner could not successfully challenge the findings as to the reality of the bona fide need advanced by the landlord. He is a young man who belonged to an affluent family by normal Indian standards. He was unsuccessful in his academic career. His family consists of businessmen and if he thought that he can make a mark in life by doing his own business in the circumstances narrated, the authorities could not have come to a conclusion that his need is not bona fide, without risking logic and commonsense. Accordingly we find that the conclusion of the authorities below that the landlord has bona fide need to get possession of the building does not warrant any interference and does not suffer from any of the vices mentioned in Section 20 of the Act.

Now we come to the main crucial point debated in this case, namely the eligibility of the tenant for protection of the second proviso to Section 11(3) of the Act. As one reads the above provision, normal rules of statutory interpretation cannot leave anyone in doubt that the burden to prove the ingredients mentioned in the said proviso is on the tenant. The provision is to the effect that even if the landlord has established his bona fide need, the Rent Control Court shall not pass an order for eviction of the tenant (1) if the tenant is depending for his livelihood mainly on the income derived from the business carried on in the premises; and (2) if there is no other suitable building available in the locality for him to shift the business. It is also crystal clear that both requirements should be satisfied and it is unnecessary for us to cite authorities on that aspect because it is too well-established. Now coming to the brass tocks the authorities below have found that the revision Petitioner-tenant has failed to establish that the business carried on in this premises is his main stay of his livelihood. The tenant is aged 85 years, sick and (if we are to believe the evidence of his son) affected with paralysis, undergoing prolonged Ayurvedic treatment. His eldest son is employed in a bank as an officer and another son is doing some business in finance. In the premises he is conducting sale of footwear. The admitted evidence is that he has some immovable properties also. The landlord''s case is that the tenant is only occasionally opening the shop and his business has almost sunk. Both sides have tried to prove their case by adducing oral evidence of some neighbours. But the Appellate Authority has pointed out that the tenant has failed to produce his accounts to show the profits from the business. C.P.W.1 son of the tenant admitted that they have bill books and account books, and used to furnish sales tax returns. None of those documents were produced and the Appellate Authority has pointed out that production of those accounts would have proved his actual income. According to the tenant the sales turnover is Rs. 500 per day. In the course of cross-examination C.P.W. 1 admitted that the turnover would be Rs. 400 to Rs. 600 a day.

A Commissioner was deputed to inspect the property after the evidence was closed and his report is marked as Ext. C-1. He was examined as C.P.W. 5. His report and evidence would show that much business activity was not carried on in the shop building. Though the Commissioner remained there for quite sometime, he reported that there was not a single customer who visited the shop. He also stated that he found the room very dusty, indicating that it was not opened and cleaned. He also found many empty boxes. He appears to have made enquiries with the neighbouring establishments and got an impression that much business is not carried on in this shop. The Rent Controller placed strong reliance on the evidence of the Commissioner which is very seriously criticised by learned Counsel for revision Petitioner. But the revision Petitioner has no explanation why he failed to produce the accounts relating to his business which might have proved the volume of business as well as the turnover, profit derived and the maintenance expenses. He had not produced the best evidence available with him to prove that the business carried on in the premises is his main stay. As pointed out by the apex court, omission of a party to produce best evidence available and clinging on the theory of burden of proof should not be permitted and any pasty who behaves in such a manner must suffer adverse inferences. Therefore, the attempt of counsel for the revision Petitioner to build up a case by relying on so-called admission in the oral evidence cannot be entertained because his client has omitted to produce the best evidence available with him and he has not furnished any explanation for that omission. In these circumstances, we are inclined to hold that the tenant has failed to establish that the business carried on in the premises is the main source of his livelihood.

The next point for decision is availability of alternate accommodation for the tenant to shift his business. We have already drawn attention to the second proviso to Section 11(3) of the Act under which the tenant has to prove the non-availability of suitable accommodation to shift his business. He has stated in the counter-statement that in the very same shop building there are rooms lying vacant belonging to the relatives of the landlord. He has stated so to prove that the landlord has alternate accommodation in his possession to start business Nevertheless, it establishes the fact that in the same building there are vacant rooms. Similarly, C.P.W. 2 has given evidence that opposite to this shop room, these is another shop room lying vacant in which one Kavitha Gold Covering was conducted. Similarly, another shop in which one Silpi Jewellery was conducted is also lying vacant. He would further say that the tenant did not ask hum to enquire whether any other rooms are available, Referring to shop rooms 5, 10 and 11 in the same building, C.P.W.-1 has stated as follows:

Therefore, the evidence of C.P.W. 1 establishes that the tenant has not made any serious attempt to enquire whether any other rooms are available in the locality to shift his business. The actual tenant has not entered the box. The neighbour who was examined to prove his case find who is conducting business in the next shop room admitted that opposite to the shop room and in the very same building rooms are lying vacant. The Commissioner also has in his report mentioned about the rooms found vacant in the locality. It is on the basis of this evidence the authorities below have come to the conclusion that alternate accommodation is available to the tenant to shift his business. Learned Counsel for the revision Petitioner submitted that higher rent would be demanded for these rooms and it will not be possible for his client to shift his business by paying higher rent. No doubt, the court has to consider whether alternate accommodation available is suitable for the business and within the reach of the tenant financially. But much attention does not appear to have been paid to this aspect of the case, by the tenant.

The tenant has examined C.P.W. 4, the Tahsildar of Changanachery Taluk who said that his office is maintaining a register, showing the details of vacant accommodation. Though he has produced a register there were no entries in it. He said that normally no-one is reporting the vacancy and there will be entries only if some persons reported vacancy. However, he is not prepared to say mat there will not be any vacant shop room, on the basis of the entries alone. A strong plea was made out by the revision Petitioner, in view of the evidence tendered by C.P.W. 4 Accommodation Controller, that the burden to prove availability of shop rooms to accommodate the revision Petitioner tenant is on the landlord. Reliance is placed on the decision of this Court reported in Kochappan Pillai v. Chellappan 1976 KLT 1 wherein a Division Bench had occasion to observe that availability or non-availability of accommodation can be proved by examination of the Accommodation Controller or such other effective means. The Division Bench found that the burden to prove the ingredients of the second proviso to Section 11(3) is on the tenant and was mentioning that Accommodation Controller can be examined to establish the non-availability, as illustrative instance. It will be a travesty to hold that the tenant''s burden is discharged by examining the Accommodation Controller alone.

Another Division Bench in Sadanandan v. Kunheen 1981 (2) KLT 628 has observed that both elements in the second proviso to section 11(3) should be proved. While referring to the aspect of non-availability of accommodation, it observed as follows:

But being a negative aspect and that too, the availability of a suitable building in the locality, the nature and quantum of evidence that has to be proved by the tenant may, in appropriate cases, be confined to a positive affirmation by the tenant before the court, that no suitable building is available in the locality not successfully challenged in cross-examination. Then the burden shifts to the landlord since he can positively prove the fact that buildings/building are/is available.

Strong reliance is placed on the above observations by counsel for revision Petitioner to argue that his client has discharged his onus by examining the Accommodation Controller and it is for the landlord to establish the availability of suitable accommodation. We have come across very many cases where such an interpretation has been place on the burden of the tenant under the second proviso to Section 11(3) of the Act and we feel that there is a confusion on this aspect which requires to be cleared.

Sections 101 to 104 of the Indian Evidence Act deal with the burden of proof. Section 101 of the Act says that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 lays down that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 of the Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, the apex court stated the distinction between ''burden of proof'' and ''onus of proof. At page 143 (para 12) it is observed as follows:

There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts.

In this case the burden to prove the ingredients of the second proviso to Section 11(3) of the Act is undoubtedly on the tenant and he has to discharge that burden. But while attempting to do so, the onus may shift from one person to another. For eg. if certain facts are proved by a party, the onus may shift to the opposite party to prove certain other facts to dislodge the probative value of the evidence adduced by the former. Thus, onus to prove may shift from one party to another in the course of evidence and at the close of the evidence the court has to see whether the party on whom the burden lies has discharged the same. After the entire evidence in the case is adduced, the question is one of appreciation of evidence. In Harmes v. Hinkson AIR 1946 P.C. 156 it is observed under what conditions onus of proof will determine the matter in controversy:

The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. Onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be considered.

In Kalwa Devadattam and Others Vs. The Union of India (UOI) and Others, the apex court observed thus:

The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side. In such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place and truth or otherwise of the case must always, be adjudged on the evidence led by the parties.

A similar view was expressed by the Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, when it observed as follows:

The expression ''burden of proof'' really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also mean that on a contested issue one of the two contending parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, die abstract question of burden of proof becomes academic.

Therefore, the burden to prove the ingredients required by the second proviso to Section 11(3) of the Act is always on the tenant and does not shift. But in certain cases that burden may be discharged by examining the Accommodation Controller or by an affirmation by the tenant that there is no other building available, as has been pointed out in 1976 KLT 1 and 1991 (2) KLT 628. But the above decisions do not lay down any absolute rule on this aspect and their Lordships were only referring to such a situation illustratively. The question whether the tenant has in a particular case discharged the burden pertains to the realm of evidence and has to be decided after appreciation of evidence.

We would also like to clear in this connection the misunderstanding that what is sought to be proved by the tenant is absence of a fact, viz. non-availability of alternate accommodation. With due respect, we would like to observe that it is not absence of fact or a negative fact. The definition of the word ''fact'' is contained in Section 3 of the Evidence Act. ''Fact'' means anything, state of things, or relation of things, capable of being perceived by the senses. The non-availability of alternate accommodation refers to a state of things and therefore is a positive fact coming within the definition of the word ''fact''. That buildings are not available in the locality is a positive fact and not a negation of anything in particular. A fact may be described either in a positive language or in a negative language. The circumstance that a fact is described or defined in a negative language is not an indication that it refers to absence of certain things. Tenant can establish the non-availability of alternate accommodation by examining persons who own buildings in the locality or persons who are trading in the locality or persons who are most likely to know about availability of accommodation. Such proof is always capable of being given. As we observed earlier, in Kochappan Pillai''s case 1976 KLT 1 this Court referred to examination of Accommodation Controller as one of the methods of proving non-availability of accommodation. It was only illustrative and not exhaustive in character. Similarly the observation in Sadanandan''s case 1991 (2) KLT 628 that in certain cases it may be sufficient for the tenant to merely affirm and thereafter the burden shifts to the landlord is obiter dicta; that has to be understood with reference to the facts of that particular case. As pointed out by the Supreme Court, the burden to prove the two ingredients of the second proviso is on the tenant.

In the present case, as in very many cases, the Accommodation Controller produced the register which contained no entries. The evidence of the Accommodation Controller would be relevant only if he is able to establish that normally vacancies of accommodation are reported and entered in the register regularly. If that law has become defunct by practice, there is no sanctity or relevance in the evidence of the Accommodation Controller to the effect that no entries are there in the register maintained for the purpose. In such an event, the burden will still be on the tenant to prove non-availability of accommodation. This position found acceptance in the Division Bench ruling reported in Chacko v. Lakshmiamma 1997 (1) KLT 12 at 16 wherein it was observed:

If buildings were available at the time when the landlady requested for own occupation and the tenant neglected to enquire regarding the availability of the building, then he cannot contend that those buildings which were available has been rented out during the course of the litigation. If that be so, in every case the tenant will be able to stultify a petition filed by the landlord u/s 11(3) of the Act by protracting the litigation. This is not the law. If the tenant is not able to prove the claim under the second proviso to section 11(3) of the Act that no alternate buildings were available at the time when the application for eviction was made, he cannot later contend that no buildings were available when the final order in the revision was passed.

Learned Counsel for the revision Petitioner argued that the landlord has only given evidence regarding availability of accommodation at the time when he was examined and not at the time of filing of the petition. No doubt, there is no specific averment in the petition that such-and-such buildings are available for the tenant to shift. But we are of the view that this is immaterial because it is not the duty of the landlord to mention it in the petition anticipating the case of the tenant that buildings are not available in the locality for the tenant to shift. On the other hand, it is the duty of the tenant to say so in his objections and thereafter it is a matter for evidence. In this case, the evidence adduced by both sides. We have only to appreciate the same and not to cling on the theory of burden of proof or shifting of onus. As to the burden of proof, the tenant has suppressed the most valuable evidence in his possession without any explanation and he must suffer an adverse inference that if produced those accounts will not prove that profits from the business is the main source of his livelihood. Similarly, C.P.W. 1 has admitted that he has not enquired about availability of accommodation and C.P.W. 2 has stated that rooms were available in the neighbourhood. In these circumstances, the Appellate Authority cannot be said to have come to an erroneous conclusion that the tenant has failed to discharge the burden on this aspect also.

As has been held by the Supreme Court in Sarla Ahuja Vs. United India Insurance Company Limited, and by this Court in Raghavan v. Raju 1998 (2) KLT 394 the scope of interference u/s 20 of the Rent Control Act is very limited. It is supervisory in nature with a view to cure any illegality, impropriety or irregularity that has crept in the orders of the authorities below. The purpose of Section 20 of the Act is not to re-appreciate the evidence and substitute the conclusion of this Court for the conclusion of the Appellate Authority. We do not find that the Judgment of the Appellate Authority suffers from any of the vices mentioned in Section 20 of the Act to warrant interference at the hands of this Court.

In the result, we confirm the judgment of the Appellate Authority and dismiss the revision. Learned Counsel for revision Petitioner submitted that the revision Petitioner may be granted three months, tame to vacate in the event of eviction. This request is reasonable and we are inclined to allow the same subject to conditions. The revision Petitioner-tenant shall deposit in the Rent Control Court the entire arrears of rent upto date within two weeks from today. He shall also file an affidavit in the Rent Control Court within three weeks from today unconditionally agreeing to surrender possession to the landlord on the expiry of the period of three months from today.