K.T.Sankaran, J. The tenant is the revision petitioner. The Rent Control Court and the Appellate Authority concurrently held that the respondent-landlady is entitled to get an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the “Act”).
2. The Rent Control Petition was filed under Section 11 (2)(b) and Section 11(3) of the Act. The petition schedule building was let out to the tenant as per Ext.A1 rent deed dated 4.12.2009. The rent payable is `400/- per day. The tenant is running a hotel in the petition schedule building. The landlady contended that her son aged 38 years is unemployed and that he wants to run a hotel business in the petition schedule building. The son of the landlady, it was contended, is dependent on the landlady for the purpose of the building. The landlady stated that her husband was doing hotel business in the petition schedule building and that at present he is laid up due to renal problems. She also contended that the tenant kept the rent in arrears for the period from 30.10.2010 to 27.1.2011.
3. Before the Rent Control Court the landlady was examined as PW1 and her son, for whose benefit the eviction was sought, was examined as PW2. On the side of the tenant, he was examined as DW1 and another witness was examined as DW2.
4. The Rent Control Court held that the tenant has kept the rent in arrears and therefore, the landlady is entitled to get an order of eviction under Section 11(2)(b) of the Act. This finding was arrived at on the basis that arrears of rent should have been paid as on the date of the order. This erroneous finding made by the Rent Control Court was rightly set aside by the appellate authority in the appeal filed by the tenant. The finding of the appellate authority under Section 11(2)(b) of the Act is in favour of the tenant.
5. As regards the bona fide need, the Rent Control Court, on a consideration of the evidence on record, held that the landlady succeeded in establishing the bona fide need and that the son of the landlady, who was examined as PW2 is a dependent on the landlady for the purpose of the building. This finding of the Rent Control Court was upheld by the appellate authority. The finding on the question of bona fide need was arrived at by the authorities below on facts and on appreciation of the evidence. We do not find any ground to interfere with the concurrent finding arrived at by the authorities below.
6. The tenant contended that he is entitled to the protection of the 2nd proviso to Section 11(3) of the Act. It is well settled that the burden to establish both the ingredients of the 2nd proviso is on the tenant. The tenant has to establish that he is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building. The tenant has also to prove that no other buildings suitable for his purpose are available in the locality to accommodate the business run by him. The Rent Control Court relied on the so called admission made by the tenant as DW1 that he was prepared to vacate the petition schedule building if he were paid `8 lakhs spent by him for modification/renovation of the building and held that this would mean that he is not depending for his livelihood mainly on the income derived from the business run in the petition schedule building. The Appellate Authority held that this view taken by the Rent Control Court is erroneous. The finding of the Appellate Authority is correct and it is in favour of the tenant. The Rent Control Court found that the tenant has not proved that no suitable buildings are available in the locality to accommodate his business. This finding was arrived at on the basis of the evidence on record that the tenant did not make any enquiries as to whether any building is available in the locality for conducting his business. The Appellate Authority confirmed this finding made by the Rent Control Court. Thus, on the ground that the tenant failed to prove both the ingredients of 2nd proviso to Section 11(3) of the Act, the authorities below held that he is not entitled to the protection of the 2nd proviso.
7. On carefully going through the order and the judgment of the Rent Control Court and the Appellate Authority, we do not find any ground to interfere with the concurrent findings under Section 11(3) of the Act. There is no illegality, irregularity or impropriety in the order and the judgment of the authorities below in this regard. For the reasons stated above, the Rent Control Revision fails and it is accordingly, dismissed.
Lastly, the learned counsel appearing for the petitioner submitted that the tenant may be granted one year's time to vacate the petition schedule building. Taking into account the facts and circumstances of the case, we are of the view that it is not proper to grant one year's time to the tenant to vacate the building. However, we are inclined to grant time upto 31.12.2014 to the tenant to vacate the petition schedule building. Accordingly, the tenant is granted time upto 31.12.2014 to vacate the petition schedule building on condition that he shall file an affidavit before the Rent Control Court within a period of one month from today unconditionally undertaking to vacate the petition schedule building on or before 31.12.2014 and also on condition that he shall deposit the arrears of rent before the Rent Control Court within two months from today and also shall continue to pay the rent calculated upto the end of the month on or before 10th of the succeeding month. If the tenant complies with the conditions mentioned above, the order of eviction shall not be executed till 31.12.2014. If the tenant fails to comply with any of the conditions mentioned above, the landlady would be entitled to initiate/continue the execution proceedings forthwith.
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K.T.SANKARAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. to Judge