K.T.Sankaran, J.
Respondents 1 and 2 filed R.C.P.No.14 of 2003 on the file of the Rent Control Court, Payyannur against the revision petitioner and other legal representatives of the original tenant as well as against the fifth respondent herein, the alleged sub-tenant, under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The revision petitioner was the second respondent in the Rent Control Petition. The fifth respondent, who is the alleged subtenant, was the fourth respondent in the Rent Control Petition. The Rent Control Court allowed the Rent Control Petition under Sections 11(2)(b) and 11(4)(i) of the Act and rejected the petition under Section 11(3). The petitioner herein filed R.C.A.No.83 of 2009 on the file of the Rent Control Appellate Authority, Thalassery, challenging the order of the Rent Control Court under Sections 11(2)(b) and 11(4)(i) of the Act. The landlords filed a Memorandum of Cross Objection and challenged the correctness of the finding of the Rent Control Court under Section 11(3) of the Act. The Appellate Authority dismissed the appeal filed by the tenant and allowed the Memorandum of Cross Objection filed by the landlords. Thus the Appellate Authority granted eviction on all the grounds, namely, Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. The second respondent in the Rent Control Petition has come up in Revision challenging the order and judgment of the Rent Control Court and that of the Appellate Authority.
2. The landlords purchased the property in the year 1990.
Even at that time, the predecessor-in-interest of the petitioner, namely, Kunhikannan was the tenant in the petition schedule building on a monthly rental of ₹140/-. The rent was not increased. He was conducting a jewellery in the petition schedule building. The landlords put forward a contention that the building is bona fide needed for the use of the son of the second petitioner in the Rent Control Petition (Yogesh Shenoy) for conducting a computer centre. The landlords also contended that the rent was kept in arrears and the tenant sublet the building to the fourth respondent in the Rent Control Petition.
3. The revision petitioner/tenant denied the bona fide need.
He contended that the landlords have other buildings. The tenant also raised a contention that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building and that there are no other buildings available in the locality to accommodate his business. The sublease was also denied by the tenant and he contended that the alleged subtenant is a total stranger to him.
4. The Rent Control Court allowed the petition under Section 11(2)(b) holding that though the tenant deposited some amount, that does not cover the entire arrears of rent, interest and costs. The Rent Control Court found that the fourth respondent in the Rent Control Petition is in exclusive possession of the petition schedule building and that the tenant sublet the building to him. The Rent Control Court rejected the case of the landlords under Section 11(3) on the ground that the petition schedule building is not sufficient for the purpose of Yogesh Shenoy to conduct a computer centre. This finding was arrived at only on the basis of the report made by the Commissioner that the petition schedule building has no sufficient area for the purpose of conducting a computer centre. The Rent Control Court held that the fourth respondent in the Rent Control Petition is the sub lessee under the second respondent (revision petitioner/tenant).
5. The fourth respondent in the Rent Control Petition (the alleged subtenant) did not appear in the Rent Control Petition and he was set exparte. However, he figured as a witness on behalf of the tenant. He deposed that he is an autorickshaw driver and he used to assist the revision petitioner in the business on certain days. He stated that he was being paid ₹200/- per day for that purpose. However, the revision petitioner, when examined as RW1, denied this. The presence of the fourth respondent in the petition schedule building is established. When a person other than the tenant is seen engaged in the tenanted premises, it is for the tenant to establish as to what is the jural relationship between the tenant and the alleged subtenant. The burden to establish the same is on the tenant. The evidence of the tenant and the subtenant would show that the case put forward by the tenant is untrue. The court below rightly held that there was sub letting by the tenant to the fourth respondent in the Rent Control Petition.
6. As stated earlier, the finding of the Rent Control Court under Sections 11(2)(b) and 11(4)(i) were confirmed by the Appellate Authority. The Appellate Authority also held that the finding of the Rent Control Court that the landlords have not established the bona fide need is unsustainable. Yogesh Shenoy wanted to start a computer centre in the petition schedule room. It is for the landlords and Yogesh Shenoy to decide as to the magnitude of the business and to decide whether that room is sufficient for their purpose. As rightly held by the Appellate Authority, the Commissioner was not justified in taking the view that the building where a jewellery is being run by the tenant is not sufficient for conducting a computer centre. The tenant cannot dictate to the landlords as to what business they should do and the tenant also cannot decide as to the nature and magnitude of the business to be run by the landlords. The tenant had raised a contention that the landlords have other vacant buildings in their possession. That was a very vague allegation which was also denied by the landlords. However, no evidence was adduced by the tenant to show that the landlords have other buildings of their own in their possession. The courts below rightly held that the Rent Control Petition is not hit by the first proviso to Section 11(3) of the Act. As regards the availability of the second proviso to Section 11(3) of the Act, it was rightly held by the courts below that the tenant failed to discharge the burden of proof in this regard. It is well settled that the tenant has to discharge the burden of proof to establish the ingredients of the second proviso to Section 11(3) of the Act. It has come out in evidence that the revision petitioner/tenant owns a cinema theatre where he is doing a food processing unit also. He owns other businesses. Though the revision petitioner/tenant stated in evidence that he was not running Sree Prasadam Enterprises, in cross examination, he has to admit that he was doing a business under that name. The evidence would indicate that the revision petitioner/tenant is engaged in various other business activities. Still, he is not prepared to accede to the request of the landlords to give vacant possession of the building to enable the landlords to allow Yogesh Shenoy to conduct business. We are of the view that the Appellate Authority rightly held that the landlords are entitled to get an order of eviction under Section 11(3) as well.
The findings arrived at by the authorities below are findings of fact. Those findings were arrived at on appreciation of the oral and documentary evidence in the case. There is no illegality, irregularity or impropriety in the order and judgment of the courts below. There is no ground for interference under Section 20 of the Act. The Rent Control Revision is, accordingly, dismissed.
(K.T.SANKARAN) Judge (A.MUHAMED MUSTAQUE) Judge ahz/