Muhamed Mustaque, J. The tenant, challenging the concurrent finding under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, filed this Rent Control Revision.
2. The respondent/landlady filed R.C.P.No.22 of 2001 before the Rent Control Court, Taliparamba, claiming eviction under Sections 11(2), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court disallowed the claim for eviction under Sections 11(2) and 11(4)(ii) of the Act. However, ordered eviction of the tenant under Section 11(3) of the Act. Challenging the order of eviction, the tenant preferred R.C.A.No.184 of 2002 before the Rent Control Appellate Authority, Thalassery. The Appellate Authority confirmed the order of eviction passed by the Rent Control Court.
3. Sri.R.Surendran, the learned counsel appearing for the revision petitioner, submitted that the courts below erred in overlooking the objection raised by the tenant under first proviso to Section 11(3) of the Act. It is the case of the tenant that he had pleaded that the landlady is having vacant possession of other rooms in the same building at the time of filing the Rent Control Petition. To substantiate the same, the tenant produced before the Rent Control Court the order passed by the Rent Control Court in R.C.P.No.21 of 2001, which was marked as Ext.B8 in the present Rent Control Petition. However, the Rent Control Court did not rely on Ext.B8. Before the Appellate Authority, the tenant produced another document along with I.A.No.1651 of 2008, which was received and marked as Ext.B9. This would go to show that the landlady is running a public telephone booth in building No.MP- V/171 of Pazhayangadi.
4. The learned counsel for the tenant/revision petitioner submitted that in spite of the materials having produced before the Rent Control Court and the Rent Control Appellate Authority both the authorities failed to appreciate the documents produced before them in the context of the pleadings raised by the landlady and the tenant.
5. Ext.B8 is the order passed by the Rent Control Court in another Rent Control Petition. Admittedly, the above Rent Control Petition was filed against another tenant who is not a party in the subject matter of the present Rent Control Petition. Therefore, any observation in that order can not have any impact upon any decision in the Rent Control Petition which is the subject matter in this Revision. As rightly held by the Rent Control Court, Ext.B8 order cannot help the tenant to prove his case under the first proviso to Section 11(3) of the Act. Apart from that, Section 43 of the Indian Evidence Act provides that the judgment, order or decree, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree is fact in issue or is relevant under some other provisions of the Evidence Act. Sections 40 to 42 are not applicable as far as the issue in question is concerned. The courts below rightly rejected the pleadings raised by the tenant on the basis of Ext.B8 order produced by the tenant to substantiate his claim under the first proviso to Section 11(3) of the Act.
6. The next point to be considered is whether Ext.B9 which was marked at the appellate stage to show that the landlady is running a public telephone booth in building No.MP-V/171 of Pazhayangadi can be relied on. Learned counsel also relied on the contention in the affidavit filed in support of I.A.No.1657 of 2008. We do not find that the tenant has pleaded that the building, bearing No.MP-V/171, was in possession of the landlady at the time of filing the Rent Control Petition. The tenant has no case that the landlady was in vacant possession of the above building at the time of filing the Rent Control Petition. This has to be viewed from the objection raised by the tenant before the Rent Control Court. The tenant has not specifically pleaded that any of the vacant building is in possession of the landlady. On the other hand, the tenant has generally pleaded that the landlady is in possession of vacant buildings. We find that to attract the first proviso to Section 11(3) of the Act, such a pleading is insufficient. When the landlady submits in the Rent Control Petition that she is not in possession of any vacant building to start the business which is sought to be conducted in the petition schedule building, the burden is on the tenant to plead and establish that the landlady is in possession of vacant building. As rightly pointed out by the Appellate Authority, at the most, running of an STD booth in building No.MP-V/171 of Pazhayangadi would establish that the landlady has started STD booth and had some business. That can be only a matter to be considered for determining the bona fides under Section 11(3) of the Act. We are of the view that starting a business or doing some trade subsequent to the filing of the Rent Control Petition will not have any adverse consequence upon the bona fide need pleaded by the landlady. Augmenting income through different methods is a matter to be decided by the landlady. Therefore, even if the landlady has started the public telephone booth, it cannot have any impact upon the bona fides of the landlady. There is no merit in the argument of the tenant that starting a public telephone booth by the landlady would have an impact upon the eviction petition filed by the landlady under Section 11(3) of the Act. The learned counsel for the revision petitioner was also unable to substantiate the findings in other respects arrived at by the Rent Control Court and the Appellate Authority. Both the courts below concurrently found against the tenant under the first proviso to Section 11(3) of the Act. We find no ground to interfere with the concurrent findings of the courts below. Accordingly, we dismiss the Rent Control Revision.
Learned counsel for the revision petitioner sought for one year's time to vacate the building. Having considered the facts and circumstances, the tenant is granted time up to 31.10.2014 to vacate the building, on condition that the tenant shall file an affidavit before the Rent Control Court within two weeks from today, unconditionally undertaking to vacate the building on or before 31.10.2014 and also on condition that the tenant shall pay the entire arrears of rent, if any, within a period of six weeks from today and shall continue to pay the rent till the actual delivery.
(K.T.SANKARAN) Judge ahz/ (A.MUHAMED MUSTAQUE) Judge