K. Harilal, J.The revision petitioner is the landlord who suffered an order of dismissal in a rent control petition filed by him against the respondent herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short the). Though he had preferred an appeal before the appellate authority challenging the said order, the appellate authority also confirmed the order passed by the Rent Control Court and dismissed the appeal. Thus, the legality and propriety of the concurrent findings of the courts below whereby the rent control petition stands dismissed, are challenged in this revision. The respondent/tenant filed Cross Objection No.49/2016 challenging the findings of the Appellate Authority, whereby the Appellate Authority reversed the findings of the Rent Control Court that the need is not bona fide and held that the need projected in the petition is bona fide and the daughter of the petitioner is a dependent for the petition schedule building.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

3. The parties are referred to as in the rent control petition. According to the petitioner, she bona fide needs the petition schedule shop room for her daughter Shemy to start a business in tailoring-cum-ready-made sales. Her daughter Shemy is depending on her for the petition schedule shop room as the petitioner or her daughter has no other vacant shop room in their possession to start the said business. But several other vacant shop rooms are available in the locality to shift the business of the respondent from the petition schedule shop room.

4. The respondent opposed the claim for eviction contending that the need projected in the petition is not bona fide and denied the averments in the petition that daughter of the petitioner is a dependent for the petition schedule shop room. The daughter of the petitioner has absolutely no need to start such a business as she is living along with her husband in a place far away from the petition schedule shop room. The petitioner has other buildings of her own to start the said business. The respondent is depending on the income derived out of the cycle repairing business run by him in the petition schedule building and no other suitable shop rooms are available in the locality to shift his business from the petition schedule building. Thus, he is entitled to get a protection under the 2nd proviso to Section 11(3) of the.

5. Going by the order dismissing the rent control petition filed by the petitioner, it could be seen that the rent control court has dismissed the petition mainly on four grounds. Firstly, the rent control Court found that the petitioner failed to prove that her daughter is depending on her. Secondly, the petitioner did not give evidence to prove the bona fides of the need. Thirdly, apart from the entrusted testimony of PW1, no other piece of evidence has been let in by the petitioner to prove the alleged need. Fourthly, the rent control court found that the petitioner had issued a lawyer notice in the year 1997 for the need of her own; but the same was not prosecuted further. In the appeal, the appellate authority reversed all the aforesaid findings.

6. Therefore, the question to be considered is whether there is any illegality or impropriety in the findings whereby the appellate authority reversed the findings of the rent control court. It is the case of the petitioner that her daughter Shemy is depending on her for the petition schedule shop room to start a business of tailoring and ready-made garments. According to the petitioner, she has no other avocation for her livelihood and she finds it difficult to pull on her family with the income of her husband alone and that she wants to have an independent sources of livelihood. In Sarala Ahuja v. United India Insurance Company, 1998 SCC 119, the Supreme Court held that the initial presumption is that the need is bona fide and genuine. In order to prove the bona fides of the need, the dependent daughter, for whose need the petition schedule shop room is required, was examined as PW1 and she has testified the bona fides of her need. As rightly observed by the appellate authority, the desire of a young woman to start a business of her own to earn her independent livelihood cannot be termed as an irrational desire or fanciful wish. But the rent control court disbelieved the evidence of PW1 on a finding that she is a married woman living far away from the petition schedule shop room along with her husband and she cannot be said to be a dependent of her mother. As rightly observed by the appellate authority, the dependency claimed by the petitioner is not a dependency for livelihood on the petitioner but the dependency is on the petitioner for the petition schedule building. The respondent has no case that the daughter of the petitioner has any other vacant room in her possession to start the proposed business. In the absence of such a case, it can be held that the daughter of the petitioner is depending on the petitioner on the petition schedule shop room to start the proposed business. Therefore, the appellate authority is justified in finding that the dependency is for the building and not on the petitioner for her livelihood. In short, we also concur with the findings of the Appellate Authority that the need is bona fide. Hence, the Cross Objection filed by the respondent fails in this respect.

7. As regards the second findings of the rent control court, as we have held above, to prove the bona fides of the need, the dependent for whose need the petition schedule shop room was required, was examined in evidence and the respondent could not bring out anything tangible in cross-examination to discredit the evidence of PW1. Therefore the non examination of the petitioner is not fatal. It is trite law settled by a plethora of decisions of this Court as well as the Supreme Court that the bona fide is a state of mind and the bona fides of the need perceived in the mind of the person who needs the building can be tested by examining the person who perceived the need in his or her mind. Here, PW1 for whose need the petition schedule shop room was required, was examined in evidence. Therefore the appellate authority is justified in finding that the bona fides of the need stands proved by examining PW1 and no other evidence is required for the same.

8. Similarly, merely on the reason that in the year 1997, the petitioner had issued a lawyer notice projecting the need of her own it cannot be held that the present need perceived in the mind of the petitioner in 2010 is not a bona fide one. The present petition was filed after 13 years from the date of issuance of earlier lawyer notice. Therefore, it could be assumed that the present rent control proceedings has been initiated on a fresh cause of action arose in the year 2010. Therefore the issuance of notice projecting the need in the year 1997 is not significant at all and the same is not a ground to doubt the bona fides of the present need. In the above notice, we find that the appellate authority is justified in reversing the findings of the rent control court on bona fide need and there is no illegality or impropriety in the findings whereby the appellate authority reversed the findings of the rent control court in this respect.

9. Coming to the 1st proviso, the courts below concurrently found that the respondent has not adduced any evidence to prove that the petitioner has any other vacant shop room in her possession to start the proposed business. Even though they contended that the petitioner has got evicted all tenants in respect of building Nos.13/9 and 13/10, no satisfactory evidence was adduced to prove that the buildings are lying vacant. Therefore the courts below are justified in finding that the claim for eviction under Section 11(3) of theis not hit by the 1st proviso to Section 11(3).

10. The learned counsel for the petitioner in support of her arguments, cited decision of this Court in Shahul Hameed A. v. P.E.Abdu Razak (2016 (5) KHC 820 [LQ/KerHC/2016/1541] ). It is held therein that unless the income of the tenant is disclosed in evidence the tenant is not entitled to get protection under the 1st limb of the 2nd proviso. It is also contended that the respondent in the instant case has hidden his income and he has not produced any evidence to prove his income. We are unable to agree with the said submission in view of the evidence available on record, which we have already referred above. What is stated in the above decision is that no tenant can contend for protection under the 2nd proviso hiding his income and it does not mean that in all cases tenant should prove their precise income but evidence must be produced to prove approximate income. We are of the view that when the respondent was examined as RW1 he has testified that he is getting an average income of Rs. 300/- per day from the cycle repairing works in the petition schedule shop room. Thus he has not hidden his income. As we held above, being a person earning from cycle repairing works, he is not expected to maintain a statement of accounts of his income. So no document can be expected from him to prove his daily income from the tenanted premises. We are of the view that the respondent has disclosed his income in his evidence and the courts below have placed reliance on his oral testimony. Therefore the respondent in the instant case has succeeded the test as laid down by this Court in Shahul Hameed A. v. P.E.Abdu Razak (2016 (5) KHC 820 [LQ/KerHC/2016/1541] ).

11. Coming to the protection under the 2nd proviso to Section 11(3), the findings of the courts below are concurrent. The courts below concurrently held that the respondent has succeeded in proving the ingredients constituting both limbs of 2nd proviso. Admittedly the respondent is not conducting a cycle repairing workshop in the petition schedule shop room. In order to prove the dependency on the income from the tenanted premises, the respondent was examined as RW1 and he has deposed that he is getting an average income of Rs. 300/- per day and it is the sole source of income for his livelihood. No evidence was adduced contrary to the said evidence of the respondent. Being a person who is conducting a petty cycle repairing workshop, he is not expected to maintain statement of accounts of his business.

12. As regards the 2nd limb of the 2nd proviso, the Commissioner has reported that he could not find any available vacant buildings in the locality. When PW1 was examined in evidence, he himself admitted that he has not shown vacant buildings to the Commissioner when he visited the petition schedule shop room and he was not aware of any such vacant buildings in the locality at that time. That apart, RW2 was examined to corroborate the evidence of RW1. RW2 has given evidence in support of RW1. Thus we find that the respondent has adduced evidence so as to discharge their burden of proof under the 2nd limb and nothing was brought out in evidence to discredit or disbelieve the evidence tendered by RW1 and RW2 which stands supported by Ext.C1 commission report. We are of the view that then the onus of proof to rebut the evidence adduced by RW1 and RW2 would shift to the petitioner. But no evidence has been adduced to prove that any other buildings are lying vacant and available for the respondent to start the proposed business.

13. Moreover, the scope and extent of interference with the concurrent findings of the courts below are confined to legality, propriety and regularity of the findings of the courts below. The petitioner has no case that the courts below have omitted any valuable evidence or placed reliance on any irrelevant evidence or wrong proposition of law. Therefore, we are not inclined to take a different view other than the concurrent views of the courts below, particularly in the absence of any kind of perversity in the appreciation of the evidence of PW1 and PW2. In the above analysis, we find that there is no illegality or impropriety in the concurrent findings of the courts below that the respondent has successfully discharged the burden of proof under the 2nd proviso to Section 11(3). Thus, the Revision Petition No.41/2016 is devoid of merit and the same is dismissed accordingly.

14. In view of the above findings in paragraph 6 to 8, the Cross Objection also will stand dismissed.