R PERIANNA ASARI Vs. JAYAKUMAR

JUDGEMENT

(1.) THE tenant is the revision petitioner. THE petition for the eviction was filed on the ground of willful default and owner's occupation. THE trial court ordered eviction on both the grounds. But the appellate court ordered eviction only on the ground of willful default, holding that the ground of owner's occupation was not proved. THE original tenant died during the pendency of this revision and his son has been brought on record as legal representative as per order dated 20.2.1996 in C.M.P. 8770/94 by this Court. THEre can be no difficulty in holding that the concurrent finding on the question of wilful default by the authorities below cannot be assailed or set aside by this Court until the findings are shown to be perverse. No findings of the courts below has been shown to be perverse before me by the counsel for the petitioner (tenant). THErefore, the revision has to be dismissed.

(2.) BUT however, the counsel for the petitioner wanted to raise two preliminary objections regarding the maintainability of the very petition for eviction. His first objection was that what was leased to the tenant was a blacksmithy shop, which will be governed squarely by Section 30(iii) of the Act and therefore, exempts only the operation of the Act. Section 30(iii) of the Act says any lease of a building under which the object of the tenant is to run the business or industry with the fixtures, machinery, furniture or other articles belonging to the landlord and situated in such building. The learned counsel wants to rely upon this sub clause and raise a point that the object of the tenant is to run the business or industry with the other articles belonging to a landlord and situated in such a building. The second point the learned counsel wants to raise as preliminary objection is that the petition is not maintainable because the same has been filed by only one co-owner and not by the other co-owners. The learned counsel for the respondent brought to my notice the case reported in " Pathen Murtazakhan Dadamkhan v. Parthan Pirkhan Amdumiyan " (A.I.R. 1993 Supreme Court, Page 1750) where a new plea based on Section 3-A was sought to be raised for the first time in the High Court. The High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation, based on factual foundation which was lacking. However, I permitted the counsel for the petitioner to raise these preliminary issues and also asking to support such issues on the facts available in the present case.

(3.) RELYING upon the evidence of P.W. 1, the learned counsel for the petitioner wants me to come to the conclusion that what was leased was a shop along with the accessories. Unfortunately, neither he nor the documents and the deposition available in this case is able to give particulars about the accessories, which were supposed to have been given along with the shop to the tenant at the time of lease. In the absence of any particulars, it is not possible for this Court to come to the conclusion that what was leased was not merely a shop but also something, which will attract the provision of Section 30(iii) of the Act.