MATHEW Vs. SHAMSUDHIN

JUDGEMENT

(1.) CRP .1031/98 was preferred by the landlord in RCP.138/91 on the file of the Rent Controller,Kozhikode -I.CRP.396/98 was filed by the tenant.Since the issues involved in both these cases are same we are disposing of these cases by a common order.

(2.) WE may describe the parties according to their status in RCP.138/91.Eviction was sought for by the landlord under section 11(2 )(b ),11(3 ),11(4 )(ii ),( iii)and(v)of Act 2 of 1965.Rent Control Court allowed eviction under section 11(2 )(b)and 11(4 )(v)of the Act.Appeal was preferred by the landlord as RCA.26/95 against the order of the Rent Control Court refusing eviction under section 11(3 ),11(4 )(ii)and 11(4 )(iii)of the Act.Appellate Authority allowed the appeal in part.Appellate Authority confirmed the findings of the Rent Controller as far as section 11(3 ),11(4 )(ii)and 11(4 )(iii)of the Act are concerned,however ordered eviction under section 11(2 )(b)and 11(4 )(v)of the Act.Aggrieved by the judgment of the Appellate Authority in RCA.26/95 as we have already indicated,landlord has filed CRP.1031/98 and tenant filed CRP.396/98.

(3.) COUNSEL appearing for the respondent -tenant supported the concurrent findings of the courts below under section 11(3 ),11(4 )(ii)and 11(4 )(iii ).Counsel submitted there is no justification in ordering eviction under section 11(4 )(v)of the Act.Counsel submitted eviction petition was preferred on 12 -12 -1991 was notice of eviction was dated 18 -9 -1991.Counsel submitted absolutely there is no evidence to show that the tenant has ceased to occupy the building for a period of six months as on the date of the petition.Counsel submitted A13 report of the commission dated 9 -11 -1988 would not show that tenant was not in occupation as on 12 -12 -1991.Counsel submitted that Exts.X -1 to X -5 relates to the period from 1993 onwards,two years after the filing of the petition.Disconnection notice was also made only in the year 1993.On the other hand,Exts.B6 to B11 would positively show that the building was in occupation of the tenant during the relevant period.Counsel submitted burden is entirely on the landlord to prove that the tenant has ceased to occupy the building continuously for a period of six months without reasonable cause.