IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
RSA NO. 209 OF 2022
AGAINST THE JUDGMENT AND DECREE DATED 25.11.2021 IN AS
9/2021 OF SUB COURT, TIRUR. AGAINST THE DECREE AND
JUDGEMENT DATED 27.01.2021 IN
OS 39/2019 OF MUNSIFF COURT, PARAPPANANGADI
APPELLANT/DEFENDANT :
KONDADAN ALAVI
AGED 58 YEARS
S/O. MAMMADALI, NATIONAL ELECTRICALS AND
SANITARIES, SHOP NO. PP.12/497, 498, PARAMBIL
PEEDIKA P.O., VIA. VELIMUKKU,, MALAPPURAM, PIN-
676317.
BY ADVS.
DEEPA NARAYANAN
K.SUJAI SATHIAN
MARY LIYA SABU
VISMAYA VINOD
RESPONDENT/PLAINTIFF:
ERAMBAN KUNHIPATHUMMA
AGED 83 YEARS
W/O. KALATHINGAL MOHAMMED HAJI, ALUNGALTHODI
HOUSE, KOOMANNA VALIYAPARAMBU, OLAKARA P.O.,
TIRURANGADI, MALAPPURAM, PIN-676306, REPRESENTED
BY PA HOLDER P.K.MOOSSAKUTTY, 64 YEARS, S/O.
MOHAMED, MADHURANGOTT HOUSE, PUTHUKODE P.O.,
RAMANATTUKARA, MALAPPURAM, PIN-673633.
BY ADV T.M.ABDUL LATHEEF
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 20.06.2022, THE COURT ON 23.06.2022 DELIVERED
THE FOLLOWING:
R.S.A.No.209/2022
2
M.R.ANITHA, J
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R.S.A.No.209 of 2022
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Dated this the 23rd day of June, 2022
JUDGMENT
Appellant is the respondent/defendant/tenant and respondent is the petitioner/landlord. The R.S.A has been filed against the concurrent findings of the courts below directing eviction of the appellant from the plaint schedule building with a direction to pay arrears of rent and damages. For convenience, parties would be referred as per their status before the Munsiff's Court. O.S.No.39/2019 has been filed before the Munsiff's Court, Parappanangadi by the plaintiff for eviction, realisation of arrears of rent as well as for damages for use and occupation of the plaint schedule building.
R.S.A.No.209/2022 3
2. (Parties would be referred as per their status before the trial court). Plaint schedule building has been let out to the defendant on a monthly rent of Rs.1,840/- per month for conducting business in Electronics. The rent upto February, 2018 has been remitted in the account of the plaintiff. Thereafter he committed default in payment of rent. Son of the plaintiff who was working abroad had come down to the native place and is having no job or income and he intends to start business in the plaint schedule building and hence defendant was demanded to vacate the premises. Since he did not heed to the request, registered notice was issued. For that reply was sent stating untenable contentions. The defendant is not doing any business in the premises. The tenancy have been terminated with effect from 31.12.2018. He is still in possession of the premises and is liable to pay damages for use and occupation and Rs.1,000/- per day has been claimed.
3. The defendant filed written statement admitting the tenancy arrangements and contended that the building was taken on lease from the plaintiff before 35 years and Rs.11,500/- was R.S.A.No.209/2022 4 paid as advance to the plaintiff at the time of inception of tenancy. The present rate of rent is Rs.1,840/- per month and it is being remitted in the account maintained by the plaintiff in Peruvalloor Service Co-operative Bank. The collection agent is not receiving rent from the defendant. The defendant is ready to pay the rent at the above rate. In February, 2018 there was a demand of enhancement of rent to the tune of Rs.10,000/- and to pay Rs.1,00,000/- more as advance by the plaintiff and his men. Defendant is a protected tenant and he has spent Rs.5,00,000/- for furnishing the building. He is using the plaint schedule building for storing the articles and is conducting the business opposite to the plaint schedule building. Plaintiff has no right to terminate the tenancy with effect from 31.12.2018 and he is not entitled to get any amount towards damages for use and occupation. Hence he prays for dismissal of the petition.
4. PW1 was examined and Exts.A1 to A9 were marked from the side of the plaintiff. DW1 and DW2 examined and Exts.B1 to B4 were marked from the side of defendant. Exts.C1 and C2 series and Exts.X1 to X6 were also marked. R.S.A.No.209/2022 5
5. Learned Munsiff on evaluating the evidence and facts and circumstances directed the plaintiff to put the defendant in possession of the building within one month from the date of order and further directed the defendant to pay Rs.18,400/- with interest at 6% per annum from January, 2019 till realisation. He was also directed to pay damages for use and occupation at the rate of Rs.1,000/- per day from January, 2019 till the date of vacating the plaint schedule building.
6. Aggrieved by the judgment and decree passed by the Munsiff, the defendant filed A.S.No.9/2021 before the Subordinate Judge's Court, Tirur. The appellate court on re- appreciation of evidence and facts and circumstances partly allowed the appeal modifying the amount of damages as Rs.2,025/- per month instead of Rs.1,000/- per day fixed by the Munsiff. Defendant was also given five months time to vacate the room. In all other aspects, judgment and decree passed by the trial court was confirmed.
7. Aggrieved by the judgment and decree passed by the appellate court, appellant/defendant approaches this Court in R.S.A.No.209/2022 6 this Regular Second Appeal.
8. Respondent/plaintiff appear through Adv.Abdul Latheef. Heard both sides.
9. When the matter came up for admission, an interim order was passed in I.A.No.01/2022 on 04.04.2022 with direction to keep in abeyance the execution proceedings and subsequently the interim order has been extended.
10. Substantial questions of law raised by the appellant in the memorandum of appeal is as follows:
a) Whether the Courts below erred in not determining the issue of the applicability of Kerala Buildings (Lease and Rent Control) Act, 1965 in the area in plaint schedule room is situated in the light of Exhibits B1 to B4 series?
b) Whether the Courts below erred in not dismissing the Original suit as the plaintiff ought to have instituted a Rent Control Petition?
c) Has the Courts below erred in proper appreciation of the evidence available as to the maintainability of the case and as to whether the tenancy is legally terminated?" R.S.A.No.209/2022 7
11. Admittedly, the defendant is a tenant of the plaintiff and Ext.A1 is the certified copy of jenm assignment deed proving the title of the plaintiff. Ext.A2 is the registered lawyer notice; Ext.A2(a) is the postal receipt; Ext.A2(b) is the postal acknowledgment card; Ext.A3 is the reply notice with acknowledgment card and postal receipt. It has been concurrently found by the trial court as well as the first appellate court that no contention as to the legality of the notice was put forth by the defendant. As per Section 106(1) the lease arrangement between the plaintiff and defendant being a lease from month to month, it is terminable on the part of either lesser or lessee by giving 15 days notice. So, on determination of the lease the lessee is bound to put the lessor in possession of the building.
12. The only argument advanced by the learned counsel for the appellant is that the Kerala Building (Lease and Rent Control) Act, 1965 (for short 'the Act') is applicable to the area and hence the original suit filed by the plaintiff is not maintainable in law. He would rely on Exts.B1 to B4 i.e. certified R.S.A.No.209/2022 8 copy of Rent Control Petition and the execution petition filed by the plaintiff against other tenants in nearby buildings. According to him, Rent Control Act is in force in the Panchayat and hence the original suit filed is not maintainable. In view of the specific contention raised by the appellant in this regard appellant/defendant was directed to produce the gazette notification to show that the Act has been made applicable in the Grama Panchayat where the plaint schedule building situates. But, he could not produce any material to substantiate that Panchayat where the plaint schedule building is situated has been notified under the Act. It is true that the learned counsel for the respondent produced copy of letter and reply received under the Right to Information Act to show that Peruvalluvar Grama Panchayat is not notified making the Act applicable. However, the information received under the R.I.Act cannot be admitted in evidence without proper proof. Anyway, the defendant also could not produce any notification to prove the application of the Act in the area where the building situates. Burden is upon the defendant under Section 101 illustration(b) of the Indian R.S.A.No.209/2022 9 Evidence Act, 1872. On failure to discharge the burden an adverse inference can be drawn to the effect that the Panchayat where the building situates is not a notified area.
13. The Appellate Court in the judgment has also been categorically found that in the written statement the defendant has not raised such a contention. No notification could be produced before the first appellate court also. So, as has been rightly found by the first appellate court, Ext.B1 to B4 will not in any way aid the defendant to contend that the Civil court has no jurisdiction to entertain the suit unless and until he could establish by producing convincing materials to prove that the building is situated in a notified area by the Government making the Act applicable. So, the contention of the defendant/appellant that the suit is not maintainable since the area is notified by the Government making the Act applicable is not at all sustainable in law.
14. Power of attorney holder of plaintiff was examined as PW1 and deposed about the plan of the son of plaintiff to start business in the building. It has been found R.S.A.No.209/2022 10 concurrently that rent of the building is in arrears from March 2018 till the termination of tenancy at the rate of Rs.1,840/- per month and plaintiff is entitled to realise Rs.18,400/- with 6% interest per annum from January 2019 till realisation. It has also been found by the two fact finding bodies that tenancy has been validly terminated and defendant is liable to put the landlord in possession of the building. I find no reason to interfere with the above findings. Trial court fixed damages towards use and occupation as Rs.1,000/- per day, the first appellate court has reduced the amount to Rs.2,025/- per month. That seems to be quite reasonable and no interference is called for in that regard also.
15. So, the appeal is found to be devoid of any merit and there is no question of law much less any substantial question of law so as to entertain the second appeal. However, the appellant is given one month's time to vacate the plaint schedule building on condition that the appellant/defendant would file an undertaking affidavit within ten days before the trial court agreeing to surrender the vacant possession of the plain t schedule R.S.A.No.209/2022 11 building within one month starting from this date and till the date of actual surrender he will pay Rs.2,025/- (Rupees two thousand and twenty five only) per month towards damages for use and occupation.
In the result, appeal dismissed. No cost.
(sd/-) M.R.ANITHA, JUDGE jsr/23/6/2022 True copy P.S to Judge