VASU Vs. VARGHESE

JUDGEMENT

(1.) THE tenant is the revision petitioner. The question that arises is whether the landlord can maintain a subsequent petition for eviction of the tenant, if a previous application which was filed raising the same grounds, was dismissed as not pressed. The short facts are the following:

(2.) THE present petition for eviction was filed under S. 11 (2) (b) (arrears of rent) and 11 (3) (bona fide need for own occupation), of the Kerala Buildings (Lease and Rent Control) Act. 1965 (for short 'the Act' ). The premises was let out on 8. 3. I984 for a monthly rent of Rs. 275/ -. The landlord gifted the same to the respondent herein, his son on 2. 5. I997. The respondent herein filed R. C. P. No. 26/1997, before the Rent Control Court, Kalpetta for an order of eviction under Sections 11 (2) (b) and 11 (3) of the Act. The premises were required for starting grocery business. It was dismissed as not pressed on 11. 5. 1998. Later on, the present R. C. P. No. 16/1998 was filed for starting grocery business. The tenant mainly contended that the dismissal of the earlier petition on identical grounds is a bar to maintain the present petition. The bona fide purpose pleaded by the landlord was also resisted. The Rent Controller found that the bona fide need alleged is genuine and the rent is in arrears from November 1995 onwards. It was also found that the tenant is not depending for his livelihood mainly on the income derived from the business therein and that other suitable buildings are available in the locality for the tenant to carry on business. Therefore, the benefit of the second proviso to S. 11 (3) of the Act was also found against the tenant. But the eviction petition was dismissed after finding that in view of the dismissal of the earlier petition as not pressed, the eviction petition is not maintainable. This finding was rendered after noticing that 0. 23 R. 1 (4) of the C. P. C. is applicable to rent control proceedings.

(3.) THE landlord filed appeal under S. 18 of the Act, which was allowed by the appellate authority. The findings on the grounds for eviction have been confirmed and it was also found that the tenant is not entitled to the protection under the first and second proviso to S. 11 (3) of the Act. Relying upon a judgment of the Supreme Court in N. R. Narayan Swary v. Francis Jagan (2001 (3) KLT SN 5 (C. No. 6) SC =air 2001 SC 2469), it was held that as the provisions of Order 23 R. 1 (4) C. P. C. have no application to proceedings under the Rent Control Act the dismissal of the earlier petition as not pressed, is not a bar and therefore the eviction petition is maintainable.