Kerala High Court
S.C.Hameeda vs A.K.Noushadali on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 2ND DAY OF NOVEMBER 2021/11TH KARTHIKA, 1943
R.S.A.No.708 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 13.7.2021 IN A.S.No.32/2019
OF THE SUB COURT, HOSDURG ARISING FROM THE JUDGMENT AND DECREE
DATED 31.8.2019 IN O.S.No.117/2013 OF THE MUNSIFF'S COURT,
HOSDURG
APPELLANTS/APPELLANTS/DEFENDANTS:
1 S.C.HAMEEDA,
AGED 44 YEARS,
W/O.B.C.ABDULRAHIMAN,
RESIDING AT 'SOUMYAM',
NEAR MADRASSUTHIL RAHIMANIYA HIGH SCHOOL,
PADNE, PADNE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, P.O.PADNE.
2 B.C.ABDULRAHIMAN,
AGED 55 YEARS,
S/O.MEEYANATH KHALID,
BOTH ARE RESIDING AT "SOUMYAM",
NEAR MADRASSUTHIL RAHIMANIYA HIGH SCHOOL,
PADNE, PADNE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, P.O.PADNE.
BY ADVS.SRI.M.V.AMARESAN
SRI.S.S.ARAVIND
RESPONDENTS/RESPONDENT Nos.2 TO 6/PLAINTIFF No.2:
1 A.K.NOUSHADALI,
AGED 42 YEARS,
S/O.LATE P.V.KHALID HAJI,
RESIDING AT P.V.K.HOUSE, PADNE,
PADNE VILLAGE, HOSDURG TALUK,
P.O.PADNE, KASARAGOD DISTRICT, PIN - 671312.
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2 A.K.BEEFATHIMA,
AGED 62 YEARS,
W/O.P.V.KHALID HAJI,
RESIDING AT P.V.K.HOUSE, PADNE,
PADNE VILLAGE, HOSDURG TALUK,
P.O.PADNE, KASARAGOD DISTRICT, PIN - 671312.
3 FARZANA ASHRAF,
AGED 32 YEARS,
W/O.LATE A.K.ASHRAF,
RESIDING AT KUTTYALI VILLA, KARUVACHERY,
NILESHWAR, NILESHWAR VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT,
P.O.NILESHWAR, PIN- 671314.
4 FARZEEN KHALID (MINOR),
AGED 11 YEARS,
S/O.LATE A.K.ASHRAF, REPRESENTED BY THEIR NEXT
FRIEND GUARDIAN MOTHER FARZANA ASHRAF, RESIDING
AT KUTTYALI VILLA, KARUVACHERY, NILESHWAR,
NILESHWAR VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, P.O.NILESHWAR,
PIN - 671314.
5 SALFA FATHIMA (MINOR),
AGED 8 YEARS,
D/O.LATE A.K.ASHRAF,
REPRESENTED BY THEIR NEXT FRIEND GUARDIAN
MOTHER FARZANA ASHRAF,
RESIDING AT KUTTYALI VILLA, KARUVACHERY,
NILESHWAR, NILESHWAR VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, P.O.NILESHWAR,
PIN - 671314.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON 02.11.2021
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment and
decree dated 13.7.2021 in A.S.No.32/2019 of the Sub
Court, Hosdurg (hereinafter referred to as 'the first
appellate court') confirming the judgment and decree
dated 31.8.2019 in O.S.No.117/2013 of the Munsiff's
Court, Hosdurg (hereinafter referred to as 'the trial
court').
2. In a suit for eviction on termination of lease, the
trial court decreed the suit. The defendants challenged the
judgment and decree before the first appellate court. The
first appellate court dismissed the appeal. Hence, this
second appeal has been filed. The parties are hereinafter
referred to as referred in the original suit unless otherwise
stated.
3. The plaintiffs are the landlord of the plaint
schedule property. The property was leased out to the 1 st
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defendant on 21.1.2004 on lease for a period of 11
months at the rate of Rs.600/- per month payable on the
first day of every month pursuant to a rent agreement
dated 21.1.2004. As per the terms of the lease, the 1 st
defendant is bound to pay enhanced rent every year at
the rate of 10% over the prevailing rent. The 1st defendant
has been irregular in paying the rent from 1.1.2013
onwards. She further sublet the plaint schedule room to
the 2nd defendant without the consent and knowledge of
the plaintiffs. An Advocate notice was issued on 19.1.2013
terminating the tenancy and calling upon the 1 st defendant
to pay all the arrears of rent with interest @ 6% per
annum and also to terminate the sublease in favour of the
2nd defendant. Although the defendants 1 and 2 received
the notice they sent a reply refuting the averments
contained in the notice.
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4. The defendants filed written statement
contending that the defendants were tenants under
Sri.P.V.Khalid Haji, the father of the plaintiffs in the year
1993. They were the tenants under the aforesaid Khalid
until he died. The Panchayat licence for the business in the
name of 2nd defendant was obtained in the year 1993
itself. After the death of Sri.P.V.Khalid Haji, the premises
devolved upon the plaintiffs. The 2nd defendant was in
possession of the premises from the year 1993 onwards
for conducting a joint venture business with his wife.
There was no agreement to enhance the rent every year
as contended. It was fixed at 10% every three years. All
the arrears of rent for the year 2011 was paid to the
plaintiffs. Since the plaintiffs failed to issue the receipts,
the defendants did not pay rent from 1.1.2013 onwards.
The plaintiffs are not entitled to get any relief from the
suit.
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5. The trial court framed necessary issues for trial.
No oral evidence was adduced by the plaintiffs. Exts.A1 to
A9 were marked on the side of the plaintiffs. The 2 nd
defendant was examined as DW1 and marked Exts.B1 to
B3.
6. The trial court on appreciation of the evidence,
decreed the suit directing the defendants to surrender
vacant possession of the plaint A schedule shop room to
the plaintiffs within two months. The 1st defendant was
directed to pay an amount of Rs.19,514/- with interest at
the rate of 6% per annum on the principal amount of
Rs.17,424/- till the date of realisation towards arrears of
rent. The 1st defendant was also directed to pay an
amount of Rs.726/- per month from 1.1.2013 till the date
of surrender as damages for unauthorised occupation.
7. The defendants challenged the judgment and
decree before the first appellate court. The appeal was
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dismissed making it clear that the amount of Rs.70,000/-
paid by the appellants during the pendency of the
proceedings shall be adjusted towards arrears of rent or
damages for use and occupation.
8. Heard the learned counsel for the appellants.
9. The learned counsel for the appellants contends
that the termination of tenancy as per Ext.A2 is improper
in the absence of contract to the contrary in Ext.A1 as
envisaged under Section 106 of the Transfer of Property
Act (for short 'T.P.Act'). The learned counsel for the
appellants further contends that Ext.A1 doesn't contain
any other stipulation of breach which provides termination
of lease. According to the learned counsel, the plaintiffs
remained absent during the trial and the plaintiffs did not
adduce any evidence to prove the alleged subletting.
10. Notice to quit under Section 106 of the T.P.Act is
a technical rule. It should not be construed in an
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impractical way so as to pickholes and find fault with the
notice. In the case on hand, Ext.A2 notice dated
19.1.2013 issued by the plaintiffs was received by the 1 st
defendant on 21.1.2013. Ext.A1 is the rental agreement
for a period of 11 months only. The period prescribed
under Ext.A1 is over. The defendants sent Ext.A7 reply
dated 4.3.2013. The court is duty bound to construe
Ext.A2 notice in such a way that it should not be defeated
by inaccuracies in the language of the notice. Ext.A2
notice provides a mode of procedure for getting a relief in
respect of cause of action, and does not constitute the
relief itself. The Section requires that the notice to be in
writing and signed. This is a case where the lease for a
period of 11 months has expired. There is no allegation of
holding over. Considering the fact that the contractual
period is only for 11 months and the lease agreement
does not contain a clause for renewal, the defendants do
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not have any legal rights over the leasehold premises.
The 1st defendant can only be treated as 'tenant at
sufferance'. The tenant at sufferance is one who
wrongfully continues in possession after the extinction of a
lawful title. Thus, it is clear that the alleged possession of
the defendants in the plaint schedule property after the
expiry of the lease period is contrary to the terms of the
lease deed.
11. In a notice under Section 106 of the T.P. Act,
two requirements must be fulfilled. (i) It should give 15
days' notice; (ii) Expiring with the end of the month of
tenancy. Sub-section (3) is a new provision which has
been inserted by the amending Act of 2002. It provides for
a legal fiction that a notice under sub-section (1) would
not be deemed to be invalid merely because the period
mentioned therein falls short of the period specified under
the sub-section, if a suit or proceeding is filed after the
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expiry of the period mentioned in the sub-section. By this
amendment, even though a notice might be for a period
less than six months in a year to year tenancy or less than
fifteen days in a month to month tenancy, yet it would be
valid, if the suit or proceeding is initiated after the expiry
of the said six months or fifteen days, as the case may be.
12. The entire law relating to date of expiry of
notice has undergone change after the amending Act of
2002. Prior to the amendment, one of the technical pleas
raised by the lessee was the failure of six months period
expiring with the end of the year of tenancy, or fifteen
days period expiring with the end of the month of tenancy.
To prevent this situation, the amending Act of 2002 has
deleted the words 'expiring with the end of a year of the
tenancy' as regards year to year tenancy, and the words
'expiring with the end of a month of the tenancy' with
respect to month to month tenancy. In the case on hand,
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the notice was rightly served to the 1st defendant.
13. One of the contentions taken by the 1st
defendant is that the defendants are joint lessees and
they have every right to continue in the building as
tenants. The defendants are man and wife respectively.
They claimed that they have been in possession of the
premises right from the year 1993 as it was leased out by
the deceased father of the plaintiffs. They have produced
Exts.B1 to B3 to show that the licence was issued in the
name of the 2nd defendant to run business in the
scheduled shop room. It is a fact that the entire business
is being conducted by the 2nd defendant in the plaint
schedule premises. It cannot be treated as a case of
subletting. The rental agreement with the 1 st defendant
was terminated with Ext.A2 notice. Merely because the 1 st
defendant permitted the 2nd defendant to run the business
in the plaint schedule shop room, as rightly held by the
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trial court and the first appellate court that the 2 nd
defendant is a sub lessee under the 1 st defendant. It is
only an arrangement between the husband and wife.
14. When notice was rightly served by the 1 st
defendant and the tenancy stood terminated, the 1st
defendant was obliged to surrender the premises to the
plaintiffs. When notice was legally issued and was received
by the defendants, it was not obligatory on the part of the
plaintiffs to depose before the court as PW1 to
substantiate their case. In a suit for eviction, the plaintiff
is at liberty to adduce evidence in accordance with the
scheme of the Evidence Act. In the case on hand, Exts.A1
to A9 documents were marked on the side of the plaintiffs.
Certain facts were admitted by the defendants. On
evaluation of the entire evidence, both the trial court and
the first appellate court concurrently held that the
plaintiffs are entitled to get a decree as prayed for.
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Accordingly, the defendants were directed to surrender the
vacant possession of the plaint A schedule room to the
plaintiffs.
15. Out of an abundance of caution, the learned
counsel for the appellants submits that in case the appeal
is dismissed in limine, the appellants may be given one
year time to vacate from the plaint schedule building in
view of the Covid-19 pandemic prevailing in the State.
According to the learned counsel for the appellants, the
appellants are conducting business in the plaint schedule
property for their livelihood and they may require at least
one year time to find a suitable building.
16. Considering the aforesaid submission, this Court
is of the view that it is just and proper to grant eight
months' time to vacate from the plaint schedule property
in case the appellants file an affidavit before the executing
court agreeing to surrender the premises within the above
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period. In case the appellants fail to file such an affidavit,
the respondents are at liberty to execute the decree in
accordance with law.
No substantial questions of law arise for
consideration in this appeal. The appeal is dismissed
granting eight months' time as stated above to vacate
from the plaint schedule property. No costs. Pending
applications, if any, stand closed.
Sd/-
N.ANIL KUMAR,
JUDGE
skj
