N.A. Muhammed Asraf vs A.K. Abdulla

N.K. Balakrishnan, J.—The landlord is in revision. He sought eviction of the petition schedule building u/s 11(2)(b), 11(3) and 11(4)(iii) of the Act. The Rent Control Court allowed the petition u/s 11(3) of the Act. The claim for eviction u/s 11(4)(iii) of the Act was disallowed by the Rent Control Court. That finding was confirmed by the learned Appellate Authority also. The learned Counsel for the landlord submits that Section 11(4)(iii) no longer survives for consideration. As against the order of eviction passed u/s 11(3) the tenant filed RCA. 19/2000. That was allowed by the learned Appellate Authority. That is challenged in this revision by the landlord.

The learned Counsel for the revision Petitioner/landlord submits that the order passed by the Rent Control Court u/s 11(3) was reversed by the learned Appellate Authority on a wrong appreciation of the evidence. It is submitted by the learned Counsel that even in the petition it was stated that in the year 1995, he acquired the petition schedule building from the previous owner. It was also stated that he had purchased the upstair portion of that building also. Though, it was contended by the tenant that the landlord is having other buildings, it was not specifically stated that other buildings are possessed by the landlord so as to dis-entitle him from claiming eviction u/s 11(3) of the Act. The need projected by the landlord is to conduct business in hardwares which can be conducted only in the ground floor and not in the first floor portion.

The need projected by the landlord was resisted by the tenant contending that he is actually conducting business in sandal wood oil which was formerly conducted by his father and that the father is not now conducting that business as he is too old. The evidence may show that he was helping his father in the conduct of that business. It cannot be said that, that business was run by P.W. 1. It was also contended that P.W. 1''s father is conducting hardware business also and that now P.W. 1 is actually conducting that business also. However, there is no evidence to show that P.W. 1 is conducting any business in his own name elsewhere so as to sustain the plea raised by the tenant that the need projected by PW1 is not bona fide. Therefore, viewed in that angle it can be found that the need projected by the landlord is bona fide. But the learned Appellate Authority has found that so many buildings have come to the possession of the landlord and that he has suppressed those facts in the RCP. Hence, the learned Appellate authority was inclined to hold against the landlord and thus, reversed the order of eviction passed u/s 11(3). The main grievance of the learned Counsel for the landlord is that at the appellate stage Exts. B3 to B8 were produced by the tenant, but no opportunity was given to the landlord to explain the position with regard to the buildings mentioned therein. According to the learned Counsel, no reason whatsoever was offered by the tenant for not producing those documents before the Rent Control Court. In other words, according to the learned Counsel, the requirement of Rule 27 of Order 41 were not complied with or satisfied while receiving those documents as additional evidence. It is further submitted that as those documents were received in appeal certainly the landlord should have been given opportunity to let in counter evidence.

It is also pointed out by the learned Counsel that when P.W. 1 was in the witness box, no question was put to him that he was having other buildings in his possession so as to contend for the position that the claim would be hit by the first proviso to Sub-section 11(3). Similarly, when the tenant was examined as P.W. 1, he also did not specifically state with reference to any buildings so as to dis-entitle the landlord from getting an order of eviction u/s 11(3). Therefore, according to the learned Counsel, opportunity was denied to the landlord to explain the documents, which were belatedly produced at the appellate stage, that too, without giving any opportunity to the landlord to produce counter evidence regarding the same.

It is seen that the tenant/Respondent is not represented by anybody. We have gone through the judgment of the learned Appellate Authority. We find it just and proper that the landlord is given opportunity to let in counter evidence to explain the documents Exts. B3 to B8. Relying on Exts. A4 to A6 it was contended by the landlord that there are other vacant shop rooms in the locality and so if the tenant wants to shift his business he can shift to any of those rooms. The burden is actually on the tenant to prove both the limbs of the 2nd proviso to Section 11(3). No satisfactory evidence was adduced by the tenant to prove that he is entitled to the protection under the 2nd proviso. As such that finding stands confirmed.

It is submitted by the learned Counsel that in stead of remanding the matter to the Rent Control Court, it may be remanded to the learned Appellate Authority so that much time can be saved. RCP was filed in 1999. We find, there is justification in that request.

In the result, the judgment of the Rent Control Appellate Authority rejecting the claim u/s 11(3) is set aside and R.C.A. 19/2000 is remanded to the Rent Control Appellate Authority, Kasaragod. The landlord as well as the tenant are given opportunity to adduce further evidence. It is made clear that the findings on the second proviso to Section 11(3) that the tenant is not entitled to the protection thereunder stands confirmed. Parties are directed to appear before the Rent Control Appellate Authority Kasaragod on 31/03/11. The learned Appellate Authority will expedite the matter and will at any rate dispose of the RCA before the court closes for Onam Holidays.