SARAMMA PUNNEN Vs. VARKEY

JUDGEMENT

(1.) THE short point that arises for consideration in this civil revision is whether a ground not taken in the written objections to an application under S. 11 (12) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 for restoration of possession by a tenant evicted under S. 11 (3) of the Act can be pleaded as a reasonable cause for not restoring possession? A question whether restoration of possession can be denied since the room as let out to the tenant ceased to exist since it became part of a bigger room as the partition wall between the room and the adjoining room was removed by the landlord after eviction, also arises for consideration. THE petitioners are the legal representatives of the landlord of the building from which the respondent was evicted under S. 11 (3) of Kerala Act 2 of 1965 for starting an umbrella factory there. Alleging that the landlord did not occupy the room within a month of obtaining possession, an application for restoration of possession was filed by the respondent before the Rent Control Court under S. 11 (12) of the Act after a year of his eviction. THE landlord in his objections contended that the room was vacated not in pursuance of the order for eviction, that the room alone could not be used as an umbrella factory and since he was yet to get possession of the adjoining rooms he could not occupy the room in question. THEre was no whisper in the objections that repairs had to be done and the delay was because of that. THE application was allowed by the Rent Control Court . But the Appellate authority reversed that order and dismissed the application. THE District Judge in revision reversed the decision of the Appellate Authority. In the civil revision filed by the landlord this court set aside that order and remanded the case to the Rent Control Court 'to consider the question whether the failure of the petitioner to occupy the room in question was without reasonable cause'. On remand, the Rent Control Court dismissed the application. THE Appellate authority reversed that decision and allowed the application for restoration. THE District Judge did not interfere in revision. It was under the above circumstances that the legal representatives of the landlord have come up in revision against the order for restoration.

(2.) THE learned counsel for the petitioners contended that the delay in occupying the room was due to the delay in doing necessary repairs to make the room fit for occupation and there was thus a reasonable cause for them not to occupy the room within a month of eviction. It was also contended that as the room originally let out ceased to exist since after the eviction the partition wall that separated the room from the adjoining room was demolished and it became part of a bigger room and hence no question of restoration arises now. THE learned counsel for the respondent contended that the contentions raised by the landlords are not grounds taken in the objections filed to the application for restoration, but are contentions taken after the case was remanded by this court and hence they cannot be urged in the case. It was also contended that the demolition of a wall by the landlord cannot be a reason for refusing restoration of possession.

(3.) IN Siddik Mohammed Shah v. Mt. Saran (AIR. 1930 P. C. 57 (1)) the Privy Council had occasion to consider the tenability of a plea which was not there in the defence submitted to the court. IN that case, the defence put forward in the suit was that one Hote Khan, the owner and person in possession of the plaint property, gave the same to the defendant. This was concurrently found against. Thereupon, the defendant took up a contention that the property was gifted to the defendant by Hote Khan's widow. This contention was not there in the original defence presented. The Privy Council held: "the spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a p lea which was never put forward. " The above decision of the Privy Council was followed by the Supreme Court in Bhagat Singh v. Jaswaht Singh (AIR. 1966 SC. 1861 ). IN trojan & Co. v. Nagappa (AIR. 1953 SC. 235) the Supreme Court has held: "it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found". 6. IN the result, the Civil Revision is dismissed. No costs. . .