MOHAMMED HAJEE P V Vs. MUNDOLI MUHAMMED HAJEE

JUDGEMENT

(1.) The second respondent in R.C.P. 19 of 1997 on the file of the Rent Control Court, Kozhikode - II is the revision petitioner herein. The first respondent (late) preferred the above petition before the Rent Control Court seeking an order of eviction under Section 11(2) (b) , 11(4)(i) and 11(4)(ii) of Act 2 of 65 against the revision petitioner and 2nd respondent alleging that the petition schedule building was let out to the second respondent on 20.6.1965 as per Ext. A1 rent deed on a monthly rent of Rs. 37.50 and that it was subsequently enhanced to Rs. 250 and that the rent of the petition schedule building was kept in arrears from April, 1996 onwards and that despite the notice demanding discharge of arrears of rent, no rent arrears was cleared and that the second respondent, without the knowledge of the first respondent, sub-let the petition schedule building to the revision petitioner and that the revision petitioner and the second respondent had removed the wall separating the two rooms and thus damages were caused on the building and thereby the value and utility of the petition schedule building was reduced permanently and materially. The revision petitioner and the second respondent jointly defended the proceedings by contending that there is no arrears of rent and that the second respondent surrendered the lease as per Ext. A1 in the year 1974 and then it was let out to the revision petitioner by the first respondent under an oral transaction and that the revision petitioner had not caused any damages to the petition schedule building so as to reduce its value or utility, materially or permanently.

(2.) The Rent Control Court, during the course of enquiry, recorded the evidence of the first respondent as PW. 1 and that of the revision petitioner and the second respondent as RWs 1 and 2. On the side of the first respondent Exts. A1 to A5 were marked. Report and sketch submitted by the Commissioner were marked as Exts. C1 and C1 (a). After evaluating the evidence on record, the Rent Control Court arrived at a finding that there is no sub lease, but the revision petitioner had obtained direct lease on oral transaction and that no damage was caused to the building and that the revision petitioner had defaulted payment of rent and hence there is arrears of rent. Consequently, the petition was allowed in part under Section 11(2) (b) against the revision petitioner. The prayer for eviction sought under Section 11 (4)(i) and 11 (4)(ii) was declined. Assailing the order declining eviction under Section 11 (4)(i) and 11(4)(ii) ; and eviction under Section 11 (2)(b) against the second respondent, the first respondent preferred appeal as RCA 4 of 2001 before the Appellate Authority. The Appellate Authority, by the impugned judgment dated 28.2.2003, allowed the appeal and the revision petitioner and the second respondent were directed to hand over possession of the petition schedule building to the first respondent under Section 11 (2)(b) , 11 (4)(i) and 11 (4)(ii) of the Act. Assailing the legality, correctness and propriety of the above judgment, this revision petition was preferred. Pending revision, the 1st respondent died and the legal heirs were impleaded as respondents 3 to 8.

(3.) We heard the learned counsel appearing on either side and perused the judgment impugned as well as the order of the Rent Control Court and the records.