C P MATHU ALIAS 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 landlord petitioner submitted that the Rent Control court as well as Appellate Authority have committed a grave error in not granting eviction under section 11(3), 11(4)(ii) and 11(4)(iii) of the Act. Counsel submitted after having found that the tenant is not entitled to get benefit of second proviso to section 11(3) the Rent Control Court as well as the Appellate Authority ought to have allowed the claim of the landlord U/s 11(3) of the Act. Counsel submitted the reasoning adopted by both the authorities for refusing landlord's prayer for own occupation are unsustainable. Counsel also submitted the courts below have committed a grave error in not granting eviction under section 11(4)(ii). Sufficient evidence have been adduced by the landlord to establish that ground as well. Counsel submitted landlord wanted the tenanted premises for doing business in hill produces. Counsel submitted mere fact that he is a partner of Neelikandy Fashion Fabrics, Kalpetta would not be a ground for rejecting his claim for bona fide need. Further, placing reliance on Ext. A15 counsel contended that partnership was dissolved on 31-3-1992. Referring to A5 partnership deed of M/s. I & H Timber Company counsel submitted that the managing Partner of that firm was not the petitioner. Referring to A6 counsel also submitted there were several partners in that partnership firm and mere fact that he is also one of the partners does not mean that he is conducting business of his own. Reference was also made to A9 series and A10 series and contended that those documents would show that there was practically no business for the firm during 1992-93 and 1993-94. Counsel also explained away the circumstances under which RCP. 126/88 was filed and the manner in which it was disposed of. Counsel submitted court below has completely misunderstood the circumstances under CRP was filed and disposed off. Ext. B13 is the copy of plaint in O.S. 10/95 of Sub Court, Kozhikode. Counsel explained the circumstances under which the said suit was filed and the way in which his brother had misused the power of attorney executed by him. Placing reliance on Exts. A2 and A3 documents counsel contended that he became the owner of the property in the year 1990 and later he issued A12 notice dated 18-9-1991 claiming eviction of the tenant. Counsel submitted there was no delay in filing the RCP. Placing reliance on the decision of this court in Annamma Paily v. Thomas Mary, 1983 KLT 313 counsel submitted that the dismissal of earlier petition would not be a bar in filing another petition for eviction. Reference was also made to the decision of the Apex Court in Ammal Chandra Dutt v. IInd Addl. Dist. Judge and others, AIR 1989 SC 255. In any view counsel pointed out that the mere fact that he was a partner in another partnership firm is no reason to deny his claim for bona fide own occupation. Reference was also made to the decision of the Supreme Court in G. Kaushalya Devi v. Ghanshyamdas, AIR 2000 SC 656. Counsel also reiterated his contention on 11(4)(iii) as well.