1. This case has come up for hearing before us on reference made by a learned single judge, Who on hearing it doubted the correctness of the decision in ikkorakutty v. Hariharan,1973 klt. 986, A single judge's decision under the kerala buildings (lease and rent control) act, 2 of 1965.

2. An application under s. 11 of the act was filed in the present case before the rent control court, Trivandrum, For eviction. One ground mentioned in it for eviction was bonafide requirement of the building as contemplated by s. 11 (3) for use of the landlords son who was dependent on the landlord. One contention raised by the tenant was that he was depending for his livelihood mainly on the income from the lodging and taxi business he carried on in the building and that as there was no other suitable building available in the locality for him to carry on that business eviction could not be ordered as per the provisions of the second proviso to s. 11 (3). The rent control court ordered eviction. That order was confirmed in appeal by the subordinate judge, Trivandrum. In revision therefrom the district judge, Trivandrum, Followed the single judge's decision in thomas baby v. Cherian thressiamma 1973 klt. 1043 regarding casting of burden of proof of availability of other suitable building in the locality on the landlord and set aside the order for eviction. It is aggrieved by that order that this revision petition has been filed.

3. The first question requiring consideration is about the bonafide requirement of the building for occupation of the landlord's son. The evidence consists of the depositions of the landlord's brother, P. W. 1 and the tenant, C. P. W. I. There are 10 to 16 rooms in the building which is near the railway station and the bus stand. C. P. W. 1 admitted that the landlord's son was a sick person. The evidence of p. W. 1 shows that that sick son is unemployed and that the landlord and her family are entirely depending for their livelihood on the income from this building unlike the tenant who owns two buildings and two taxis. The first two courts have in their decisions referred to the fact that the landlord's son is handicapped by physical deformity. It is true that that fact is not borne out by the evidence. But it was admitted before the subordinate judge that he was an invalid and that was why the subordinate judge proceeded on that basis. C. P. W. 1 although at first pretended as not even knowing whether the landlord had such a son later admitted that he was a sick person. When asked as to whether he was unemployed c. P. W. 1 again pretended ignorance. When further asked as to whether he bad enquired about it the answer was in the negative. According to him even after the filing of the application for eviction he had not considered it necessary to enquire about it. The district judge has observed that pleading is wanting in respect of the particular requirement of the building for the landlord's son and his physical deformity. It is specifically stated in the application that the landlord's son is dependent on the landlord, That he desires to conduct business in the building and that the building is required for his personal use. As to what is the business he proposes to conduct there and whether he is handicapped on account of physical deformity they are all matters for evidence and not for pleading. And the evidence is that it is lodging business that the sick son of landlord proposes to conduct in the building. The first two courts were right in acting on the evidence of pw. 1 and finding in favour of the landlord on the question of bonafide requirement of the building for the occupation of the landlord's son who is dependent on the landlord.

4. The next question is about the availability of another suitable building as contemplated but the second proviso to s. 11 (3) of the act for the tenant to conduct his business and it is here that the correctness of the decisions in ikkorakutty v. Hariharan 1973 klt. 986 and thomas baby v. Cherian thressiamma 1973 klt. 1043 is being challenged. S. 11, So far as is material reads:

"jj. Eviction of tenants:.

(3) a landlord may apply to the rent control court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him:

provided that the rent control court shall not give any such direction if the landlord has another building of his own in his possession in the same city, Town or village except where the rent control court is satisfied that for special reasons, In any particular case it will be just and proper to do so:

provided further that the rent control court shall not give any direction to a tenant to put the landlord in possession, If such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:

(4) a landlord may apply to the rent control court for an order directing the tenant to put the landlord in possession of the building:

(iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same and if he satisfies the court that he has the plan and license, If any required, And the ability to rebuild and if the proposal is not made as a pretext for eviction: it

5. In interpreting the second proviso to s. 11 (3) the learned judge who decided ikkorakutty v. Hariharan 1973 klt. 986 and thomas baby v. Cherian thressiamma 1973 klt. 1043 said that the question whether the alternative building vas suitable or not was one which affected the jurisdiction of the rent control court to pass an order for eviction and that in deciding the question whether the alternative building available was suitable or not relevant matters to be considered were whether the tenant could carry on his business there as profitably as in the original building, Whether the plinth area and the comparative advantages of the two buildings were the same and other matters. He also held that the point of time material for determining the availability of the alternative building was the passing of the order for eviction and that while the burden of proving one part of the proviso was on the tenant the burden of proving the remaining part was on the landlord.

6. This is what the learned judge has said in ikkorakutty v. Hariharan 1973 klt. 986:

"there is no evidence as far as i can see that the building with respect to which pw. 2 gave evidence is one suitable for conducting a coffee - stall - cum - hotel though it may appear to be a question of fact, In the proper analysis it can be found that it is a question on the decision on which would depend the jurisdiction of the rent controller to pass an order for eviction the only evidence in this regard is that of pw. 2. It is not his case that the advantages of his building is the same as that of the petition schedule building. It is also not his case that the revision petitioner's trade could be carried on in his building as profitably as in the petition schedule building. The revisional court has disposed of this aspect of the matter observing that this is not a relevant consideration in terms of the proviso to sub - section (3) of s. 11. In my view, However, It is a relevant consideration. Otherwise there is no meaning in the proviso requiring that there should be a building available to the tenant in the locality where he could carry on such business or trade. What the legislature contemplated, It seems to me, Is the availability of a building in the locality where the revision petitioner - tenant could carry on his avocation without sacrificing his business interest or putting him to any undue hardship. The tenant should not be penalised for not having searched for and procured another building in anticipation of an eviction order that may be passed against him, And the point of time material for determining the availabilitv of other suitable building, It appears to me, Is the time of passing the eviction order. It is not in evidence as to what the expected rent of pw. 2's building is, What the plinth area is, What the comparative advantages of the two buildings are etc., Which are all very material factors for taking a decision on this aspect of the matter"

in thomas baby v. Cherian thressiamma 1973 klt. 1043 the learned judge said:

"the wording of the proviso is such that the burden of proving that the tenant was depending for his livelihood mainly on the income derived from the business or trade carried on in the building is on the tenant, And that there is other suitable building available in the locality for the tenant to carry on such trade or business is on the landlord

the availability of other suitable building must relate to the time of passing the order of eviction. That there was such building available in the past, Or such building may become available at a future date, Is not the sort of finding contemplated under the second proviso to sub - section (3) of s. 11 of the act to sustain an order of eviction under s. 11 (3).

in ikkorakutty v. Hariharan 1973 klt. 986 the landlord who conducted a tutorial college in other buildings prayed for eviction of the tenant from the building rented out to the tenant and where he carried on a coffee - stall - cum hotel on the ground of bonafide requirement for reconstruction. The landlord wanted to demolish that building and put up another building suitable for conducting a tutorial college. The learned judge said that although the prayer as such was under s. 11 (4) (iv) in essence the prayer amounted to recovery of the site alone where the building stood and that to such a case the provisions in the first proviso to s. 11 (3) could be applied. This is what the learned judge has said:

"where virtually the petition amounts to one for recovery of the site on which the building is situated, Inasmuch as the landlord's case is that he wants to demolish the existing building and put up a new building for a specific use, The bonafide need of the landlord has to be tested from an angle different from that of the case in which recovery of possession sought for is that of the building itself. The section in terms contemplates only recovery of the building for his own occupation. Without entering into the merit of the contention that recovery of the building means and includes recovery of the site, The effect of the first proviso to sub - section (3) s. 11 has also to be construed when the petition in essence amounts to one for recovery of the site alone. The first proviso states that the rent control court shall not give any such direction (for eviction) if the landlord has another building of his own in his possession in the same city, Town or village except where the rent control court is satisfied that for special reasons, In any particular case it will be just and proper to do so. Here when the prayer is virtually for recovery of the site, By the analogy of the provisions contained in the first proviso to sub - section (3) of s. 11 the court should necessarily go into the question whether the landlord is possessed of other site where he could construct the building. If he is possessed of another site, He cannot claim recovery of the building in order to secure the site thereof for the purpose of erecting another building."

7. In order to consider burden of proof it is to the affirmative in substance and not form that one has to look. A grammatical negative need not necessarily be a legal negative also. Thus a legal affirmative may sometimes be negative in form involving proof of the negative, Such as, The fact that goods were not consigned within a specified period or that houses were not built according to specification, Or that a transaction was in reality one different from what on its face it appeared to be, Or that there was omission to insure premises or that there was assignment of premises without consent see the cases cited at foot note (e) at page 267 in halsbury's laws of england, Third edition, Volume 15. The use in the second proviso to s. 11 (3) of the act of the words "there is no other suitable building" indicates that it is not proof of availability but proof of just the opposite that is insisted on. At first blush it may appear that there would be practical difficulty to prove it, Being negative in form. But really it is not so. It is capable of easy and positive proof by examination of the accommodation controller or such other effective means.

8. The principal enacting provision in s. 11 (3) says that eviction can be ordered in cases where the landlord bonafide needs the building for bis own occupation or for the occupation of a member of his family dependent on him. The second proviso which is an excepting one carves and reserves out of the main section cases of tenants who carry on business in the building and who have no other suitable building available in the locality to carry on that business. But for the proviso the enacting part of the section would have included in it the subject - matter - of the proviso also. An exception has to be taken most strongly against the party for whose benefit it was made and it is for him who sets it up to establish it. It is be who would fail if the allegation regarding it is struck out of the pleading. On the whole, Then, On a review of the principles involved, It is clear that the burden of proving all the facts in the second proviso

to s. 11 (3) of the act is on the tenant.

9. The correctness or otherwise of a finding on a pure question of fact properly arising for decision in a case has nothing to do with the jurisdiction of the court regarding that case. The second proviso to s. 11 (3) empowers the rent control court to decide the question of suitability of the alternative building. Erroneous decision by the court on that matter does not at all affect its - jurisdiction. Jurisdiction is the power to decide and that includes power to decide correctly and erroneously.

10. As to whether the alternative building is suitable or not is a pure question of fact depending on the circumstances of each case. In order that the building is suitable it need not necessarily have the same plinth area and other conveniences as the original building it need not also be necessarily shown. That the business could be carried on in such alternative building as profitably as in the original building because profit in a business depends more on economic factors than anything else. If machines are erected for the business, For removing them and other things connected with the business to the alternative building expenses would be involved and all that would mean inconvenience and hardship to the tenant. But they are all irrelevant matters if the alternative building is a suitable one.

11. As proviso is a part of the section itself the words "direction to a tenant to put the landlord in possession" occurring in the second proviso to s. 11 (3) should mean the same direction that is referred to in the principal enacting provision in s. 11 (3). Under s. 11 (3) application for an order for eviction is contemplated based on the circumstances which exist on the date of the filing of the application and not on the date of its disposal. The landlord is not expected to file application in anticipation of change of circumstances in his favour by the time the application is disposed of. As the conditions mentioned in s. 11 (3) have to exist on the date of the application to make the provisions of s. 11 (3) applicable, To resist such an application based on the provisions of the second proviso, Which is a part of s. 11 (3) the facts referred to in that proviso must also exist on that date. Consequently the point of time material for determining availability of other suitable building is the date of the application under s. 11 (3) and not the date of the order for eviction. Any other interpretation is likely to lead to injustice. Ordinarily an application under s. 11 (3) takes a long time for disposal and by the time it is finally disposed of in revision several years would have passed after the. Filing of the application. In the instant case itself although the application under s. 11 (3) was filed on august 19,1963 it is being finally disposed of only now, More than 12 years after. There may have been several alternative suitable buildings in the locality for the tenant to shift in 1963 but not one now. In such a case the fault for not having shifted in 1963 to one of the alternative buildings is of the tenant and not of the landlord.

12. Re - construction may sometimes be by construction of a new building after demolition of the old building. It does not appear to be right to consider recovery of the building in such a case as recovery of the site alone. If it is construed as recovery of possession of mere site no provision in the act would apply because the act deals exclusively with buildings. Assuming that recovery of sites also would come within the purview of the act even then there is no justification for extending to s. 11 (4) (iv), The provisions of the first proviso to s. 11 (3) because that proviso is confined to s. 11 (3) and its extension to s. 11 (4) (iv) is not permitted by the act. In fact such extension, Whether it is by analogy or otherwise, Would amount to adding an independent proviso to s. 11 (4) (iv) which is not there.

13. The conclusions, Therefore, On this part of the discussion are.

(1) if the tenant relies on the second proviso to s. 11 (3) to resist eviction burden is on him to prove all the facts mentioned in that proviso.

(2) the point of time material for determining the availability of other suitable building is the date of the application under s. 11 (3).

(3) the question whether the alternative building is suitable or not is purely one of fact depending on the circumstances of each case.

(4) decision on the question regarding suitability of the building has nothing to do with the jurisdiction of the rent control court.

and (5) the provisions of the first proviso to s. 11 (3) cannot be extended by analogy of s. 11 (4) (iv) of the act.

with respect, The decisions in ikkorakutty v. Hariharan 1973 klt. 986 and thomas baby v. Cherian thressiamma 1973 klt. 1043 do not lay down the correct law.

14. The availability of a suitable alternative building in the locality for the tenant in the present case alone survives for consideration. The district judge has observed that even p. W 1 admitted that there was no building available there. That is not right. What p. W. 1 said was only that near the railway station there was no such building. But he said that the respondent owned and was in possession of two or three buildings just one furlong away. When be was asked as to whether a building belonging to one viswanathan nair was not lying vacant there he pretended ignorance. He went to the extent of even saying that there was no need for him to enquire whether a suitable building was lying vacant at the place. It has not been established that there is no other suitable building available in the locality for the tenant to carry on the business he is conducting in the building from which he is sought to be evicted so as to attract the provisions of the second proviso to s. 11 (3) of the act.

15. As regards proof of some of the facts referred to in the second proviso to s. 11 (3) of the act the district judge wrongly placed the burden on the landlord and misapplied the provisions of law. Thus he acted in the exercise of his jurisdiction with material irregularity in setting aside the concurrent decisions of the first two courts. Hence this revision petition is allowed with costs.

allowed.