Kerala High Court
K.V.Sebastian vs Diocese Of Vijayapuram on 1 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
RSA NO.623 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 30.09.2020 IN
A.S.No.77/2019 OF DISTRICT COURT, KOTTAYAM ARISING FROM THE
JUDGMENT AND DECREE DATED 29.1.2019 IN O.S.No.506/2017 OF
ADDITIONAL MUNSIFF'S COURT, KOTTAYAM
APPELLANT/APPELLANT/DEFENDANT:
K.V.SEBASTIAN,
AGED 65 YEARS,
S/O.K.T.VARKEY,
KOKATTUMUNDACKAL, MANALUMKAL.P.O.,
AKALAKUNNAM VILLAGE, KOTTAYAM DISTRICT-686 503.
BY ADV SRI.NANDAGOPAL S.KURUP
RESPONDENT/RESPONDENT/PLAINTIFF:
DIOCESE OF VIJAYAPURAM,
REPRESENTED BY ITS BISHOP
Rt.REV.SEBASTIAN THEKKETHCHERIL,
S/O.DEVASIA, THEKKETHCHERIL HOUSE,
NOW RESIDNG AT VIJAYAPURAM BISHOP HOUSE, NATTASSERY
KARA, MUTTAMBALAM VILLAGE,
KOTTAYAM DISTRICT.
FOR THE BISHOP AND ON HIS BEHALF
HIS ATTORNEY HOLDER AND PROSECUTOR OF THE DIOCESE,
REV FR.AJI @ JOSEPH, CHERUKAKRAMCHERIL, AGED 42,
RESIDING AT THE VIJAYAPURAM BISHOP HOUSE, NATTASSERY
KARA, MUTTAMBALAM VILLAGE, KOTTAYAM-686 002.
Sri.Gikku Jacob -Caveator
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 29.09.2021, THE COURT ON 01.10.2021 DELIVERED THE FOLLOWING:
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JUDGMENT
The unsuccessful defendant in both the courts below
filed this second appeal against the concurrent judgments
of the courts below. The respondent filed a suit as
O.S.No.506/2017 of the Additional Munsiff's Court,
Kottayam (hereinafter referred to as 'the trial court')
seeking for recovery of plaint schedule building and other
reliefs.
2. For the sake of convenience, the parties are
referred to as per their litigious status before the trial court.
3. The case of the plaintiff is that the suit property
belongs to the Diocese of Vijayapuram Roman Catholic
Diocese and the same was given to the defendant on
lease. The lease deed was executed on 19.7.2008 and the
plaintiff granted a lease of the plaint scheduled room to
the defendant with effect from 1.7.2008 for a period of 11
months. It was contended that the defendant was holding
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over room No.KMC-IX/85 at St.Antony's Complex Building,
Nagampadom, Kottayam after the termination of the
period of lease dated 31.5.2009. It was contended that
the defendant is liable to pay monthly rent at the rate of
Rs.1,700/- on every first day of the month of English
Calendar to the plaintiff and the receipts thereof shall be
obtained from the office of the Diocese of Vijayapuram.
However, the defendant did not surrender the scheduled
room after the expiry of the lease period. It was further
contended that thus the defendant is liable to pay
enhanced monthly rent at the rate of 15% as per the
lease agreement and a total amount of Rs.3,03,028/- is to
be paid by the defendant to the plaintiff as on
01.06.2017. Hence the plaintiff filed the suit for recovery
of plaint schedule property with arrears of rent.
4. The defendant contended that the plaintiff has
no right to evict the defendant on the strength of an
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unregistered lease deed executed between the parties. It
was contended that the defendant is conducting business
in the scheduled building and he has no other source of
income to eke out his livelihood. According to the
defendant, he was very prompt in paying the rent. But the
rent was refused to be accepted. The defendant is
conducting a restaurant by name 'Shine Restaurant and
Hotel', ever since the building was taken on lease by him.
5. The learned Additional Munsiff framed necessary
issues during the trial. The power of attorney holder of the
plaintiff was examined as PW1 and marked Exts.A1 to A5.
On the side of the defendant, Exts.B1 series to B2 were
marked.
6. On analysis of the facts, evidence and
probabilities of the case, the trial court found that the
plaint schedule building is exempted from the provisions
of Kerala Building (Lease and Rent Control) Act, 1965 and
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that the lease agreement between the plaintiff and the
defendant got terminated by the issuance of Ext.A3 notice
as per Section 106 of the Transfer of Property Act, 1882
(hereinafter referred to as 'the T.P.Act') and the defendant
is liable to pay arrears of rent for the period from
7.4.2010 till 1.7.2011 at the rate of Rs.1,700/- per month
and from 1.8.2011 till 1.8.2014 at the rate of Rs.1,955/-
per month and from 1.9.2014 till 5.4.2016 at the rate of
Rs.2,248/- per month. The defendant was also directed to
pay damages for the use and occupation of the building at
the rate of Rs.2,248/- per month from 5.4.2016 till
2.4.2017 and thereafter at the rate of Rs.2,585/- per
month from 2.5.2017 till the defendant vacates the
building. Nine percentage interest was awarded pendente
lite and 6% was awarded towards future interest. Cost of
the suit was also allowed.
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7. Aggrieved by the judgment and decree, the
defendant filed A.S.No.77/2019 before the District Court,
Kottayam (hereinafter referred to as 'the first appellate
court'). The first appellate court allowed the appeal in part
and modified the decree in respect of arrears of rent as
follows:-
"1. xxx xxx
2. The defendant is directed to pay rent at
the rate of Rs.1,955/- per month from
26.07.2014 to 31.08.2014 and Rs.2,248/-
per month from 01.09.2014 till
05.04.2016.
3. xxx xxx
4. xxx xxx
5. xxx xxx"
In all other respects, the decree was confirmed.
8. Heard Sri.Nandagopal S.Kurup, the learned
counsel for the appellant and Sri.Gikku Jacob, the learned
counsel for the caveator/respondent.
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9. The learned counsel for the appellant contended
that the two courts below committed serious error in
holding that there is proper termination of tenancy as
provided under Section 106 of the T.P.Act.
10. On the other hand, the learned counsel for the
respondent submitted that as per the lease agreement the
period was 11 months with effect from 1.7.2008. The
agreement in question was not a registered one. Ext.A3
notice was issued on 15.3.2017. The same was received
by the defendant on 18.3.2017. Therefore, as per Section
106(2) of the T.P.Act, the tenancy stood terminated on the
expiry of 15 days from 18.3.2017.
11. Going by the evidence, it is clear that Ext.A3
notice issued by the plaintiff to the defendant is perfectly
legal and the tenancy stood terminated with effect from
2.4.2017. The property owned by the Diocese is exempted
from the purview of the Kerala Building (Lease and Rent
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Control) Act, 1965. The defendant has no right to continue
in the premises with effect from the date of determination
of the lease. Hence the concurrent findings of the two
courts below cannot be faulted.
12. It is true that the concurrent findings of facts
arrived at by the two courts below can be reviewed in
appropriate cases. In the case on hand, no exceptional
circumstances are shown to review the concurrent
findings of facts arrived at by the two courts below. The
reason for the practice is that when facts have been fairly
tried by two courts and the same conclusion has been
reached by both, it is not in the public interest that the
facts should be again examined by the High Court in
second appeal. A mere look at Section 100 of the CPC
shows that the High Court can exercise its jurisdiction only
on the basis of the substantial questions of law which are
to be framed at the time of admission of the second
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appeal and the second appeal has to be heard and
decided on the basis of such duly framed substantial
questions of law. Going by the judgments of the courts
below, this Court is of the view that the findings of the
courts below are based on evidence and this Court is not
justified in substituting its own findings on re-appreciation
of evidence merely based on the contention of the
appellant that notice under Section 106 of the T.P.Act was
not served on the appellant. The contention is apparently
unsustainable. No substantial questions of law are
involved in this appeal.
13. At this juncture, the learned counsel for the
appellant submitted that the appellant has been
conducting a hotel in the plaint schedule property and he
is not in a position to conduct the hotel due to the
outbreak of Covid-19 pandemic through out the State.
Therefore, he may be given time up to 31.5.2022 to vacate
the premises.
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14. Considering the aforesaid submission made by
the learned counsel for the appellant, this Court is of the
view that it is just and proper to grant time up to
31.5.2022 to vacate the premises on condition that the
appellant shall file an affidavit before the executing court
agreeing to surrender the premises on or before
31.5.2022 and pay all arrears of rent in terms of the
impugned judgment and decree within two months from
the date of this judgment. In case of failure to comply
with the conditions stipulated above, the time granted for
surrendering the premises shall stand vacated without any
further order from this Court.
Resultantly, the Regular Second Appeal is dismissed
as stated above. There would not be any order as to
costs. Pending applications, if any, stand closed.
Sd/-
N.ANIL KUMAR,
skj JUDGE
