KANARAKUTTY KURUP Vs. VIVEKANANDAN

JUDGEMENT

(1.) The revision petitioner is the owner of a building within the Calicut Corporation, which has been taken on lease by the respondent on a monthly rent of Rs. 37.50. The petitioner filed O.P. (R.C.) No. 179 of 1974 before the Munsiff's Court, Kozhikode-II for eviction of the respondent on the ground of arrears of rent and also on the ground that the respondent had kept the building locked for about one and half years, causing thereby damage to the building. The respondent in his counter denied that he had kept the rent in arrears. According to him, there was an arrangement between him and the revision petitioner under which the respondent was to do some additional work in the building, and adjust the rent towards the cost of the same. It was on account of the above arrangement that rent was not being paid. He also denied that any damage had been caused to the building. He would state, that the petitioner caused the electric current to be cut, with the result that the respondent had to approach the Tahsildar for restoration of the amenity. After the electric current was restored work was being carried on in the building. There was, therefore, no grounds for eviction of the respondent.

(2.) The Rent Control Court held, that there was non user of the building and the respondent had failed to adduce evidence that he was doing business in the building. The claim for eviction on the ground of arrears of rent was, however, declined. The respondent, thereupon, filed C.M.A. No. 213 of 1975 before the Appellate Authority, challenging the order of eviction. The appellate authority observed that the petition was filed under S.11(2)(a) and 11(4)(iii) of Act 2 of 1965, and that there was no claim for eviction under S.11(4)(v), which deals with cessation of occupation for six months without reasonable cause. The appellate authority, however, considered the question whether there was ground for eviction under S.11(4)(v), and held, that on the facts and the evidence adduced, no case for eviction under S.11(4)(v) was made out. The appellate authority, therefore, reversed the decision of the Rent Control Court and dismissed the application for eviction. The above finding was confirmed in revision by the District Judge, Kozhikode. The present petition is filed by the revision petitioner landlord, challenging the order refusing eviction.

(3.) It is noted that the revision petitioner sent a notice, Ext. A-2, as early as 6th March 1973 claiming eviction on the ground of arrears of rent. No mention is seen made therein of the non occupation of the building by the tenant. In the petition before the Rent Control Court, the reference is confined to S.11(2)(c) and 11(4)(iii). There is no mention of facts entitling eviction under S.11(4)(iii) or that the tenant had ceased to occupy the building continuously for six months without reasonable cause; the petitioner mentions only that the building was remaining closed for one and a half years and the closure was causing damage to the building, a ground which might fall under S.11(4)(ii).