K.S.Joseph vs Sosamma
2021 Latest Caselaw 9308 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

     FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                        RSA.No.896 OF 2017

 AGAINST THE JUDGMENT AND DECREE IN A.S No.160/2015 DATED 07-04-
           2017 OF ADDL. DISTRICT COURT - II, KOTTAYAM

 AGAINST THE JUDGMENT AND DECREE IN O.S.NO.341/2014 DATED 21-07-
            2015 OF PRINCIPAL MUNSIFF COURT, KOTTAYAM



APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2:


      1      K.S.JOSEPH
             S/O. SCARIA, AGED 81 YEARS,
             EX-PARTNER OF M/S. JOSO OILS, KANJIKUZHY,
             RESIDING AT KANNANTHURUTHIYI HOUSE, PARIYARAM,
             PUTHUPALLY VILLAGE, KOTTAYAM.

      2      MATHEW
             S/O. KURIAKOSE, AGED 81 YEARS,
             EX-PARTNER OF M/S. JOSCO OILS, KANJIKUZHY,
             RESIDING AT NARIMATTATHIL PADINJARETHIL,
             VAKATHANAM VILLAGE, CHANGANACHERRY TALUK,
             KOTTAYAM DISTRICT.

             BY ADVS.
             SRI.P.CHANDRASEKHAR
             SRI.K.ARJUN VENUGOPAL
             SMT.V.A.HARITHA
             SMT.MARY RESHMA GEORGE
             SMT.P.M.MAZNA MANSOOR
             SHRI.S.PRASANTH
             SRI.SOORAJ T.ELENJICKAL
             SMT.SANDHYA R.NAIR

RESPONDENTS/RESPONDENTS/PLAINTIFF/1ST DEFENDANT:

      1      SOSAMMA
             W/O. LATE CHERIAN VARGHESE,
             AGED 83 YEARS, RESIDING AT ERKATHIL PUTHENPARAMBIL,
             KANJIKUZHY, MUTTAMBALAM VILLAGE, KOTTAYAM.

      2      M/S. JOSCO OILS,
             A PARTNERSHIP FIRM FUNCTIONING AT KANJIKUZHY,
             MUTTAMBLAM VILLAGE, REPRESENTED BY ITS MANAGING
             PARTNER.
 RSA.No.896 of 2017

                                  2



                R1 BY ADVS. SRI.JOSEPH ABRAHAM
                SRI.VARGHESE C.KURIAKOSE


     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
19.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA.No.896 of 2017

                                      3

                                   JUDGMENT

Dated this the 19th day of March 2021

This Regular Second Appeal is directed against the

judgment and decree in A.S No.160 of 2015 dated 07.04.2017

on the files of the Additional District Court - II, Kottayam, which

arose from the judgment and decree in O.S No.341 of 2014

dated 21.07.2015 on the files of the Principal Munsiff Court,

Kottayam.

2. The appellants are defendants 2 and 3 in O.S

No.341 of 2014 on the files of the Principal Munsiff Court,

Kottayam. The suit was for mandatory injunction directing the

defendants to remove the building and structures in the plaint

schedule property and to deliver its vacant possession to the

plaintiff along with arrears of rent at the rate of Rs.17,850/- per

month from 01.09.2012 to 30.11.2012 with future interest at the

rate of 12% per annum till the date of payment and to realise

damages to the tune of Rs.1,70,000/- and also damages at the

rate of Rs.10,000/- till date of vacant possession of the plaint

schedule property with future interest at 12% per annum.

3. The trial court decreed the suit as prayed for.

Challenging the judgment and decree, the appellants preferred

an appeal before the 1st appellate court. The appeal was RSA.No.896 of 2017

dismissed confirming the judgment and decree of the trial court.

Feeling aggrieved, the defendants 2 and 3 preferred this appeal.

The parties are hereinafter referred to as plaintiff and

defendants according to their status in the trial court unless

otherwise stated.

4. Heard Sri. P. Chandrasekhar, learned counsel for

the appellants and Sri. Varghese C. Kuriakose, the learned

counsel for the 1st respondent.

5. After having heard at length, the learned

counsel for the appellants submits that the 1 st defendant is a

partnership firm and defendants 2 and 3 are its partners.

According to the learned counsel for the appellants, at the

request of the defendants, the plaintiff leased out the plaint

schedule property for running an oil pump by virtue of registered

lease deed No.1840/2002. Considering the fact that an oil pump

is being conducted in the plaint schedule property, the learned

counsel for the appellants seeks at aleast 15 months time to

vacate the plaint schedule premises. The learned counsel for the

respondents, on instructions, submits that the respondents are

willing to permit the defendants to continue occupation of the

plaint schedule property for a period of 12 months provided all

the arrears of rent accrued as on date will be deposited within a RSA.No.896 of 2017

span of one month and continue to pay the rent till the date of

surrender. After having taken into consideration of the facts and

circumstances involved and also in view of the fact that the

plaintiff leased out the plaint schedule property for running an

oil pump, it is just and proper to grant 12 months time to the

defendants 2 and 3 / appellants 1 and 2 to vacate the plaint

schedule property.

In the result, this Regular Second Appeal stands

dismissed. However, the defendants 2 and 3 / appellants 1 and

2 are given 12 months time to vacate the plaint schedule

property from today provided all the arrears of rent accrued as

on date shall be paid within a period of 45 days and shall

continue to pay the rent as agreed between the parties till the

date of surrender as ordered by the trial court on the appellants

1 and 2 filing an affidavit on the above terms and conditions. In

case the conditions are not complied with, the executing court is

at liberty to proceed with the execution in accordance with law,

without any further order from this Court.

Sd/-

N.ANIL KUMAR

JUDGE

DK